European Statutory Instruments Committee
Date Published: 19 October 2023
At its meeting on 17 October 2023 the Committee considered proposed negative instruments laid by the Government and has recommended that the appropriate procedure for the following instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure).
1.1 The purpose of this instrument is to change the framework by which “fundamental rights and freedoms” are defined in UK data protection legislation. “Fundamental rights and freedoms” are currently defined by reference to retained EU rights, which will be repealed at the end of 2023 under the Retained EU Law (Revocation and Reform) Act 2023. This instrument amends such references to instead refer to the European Convention on Human Rights.
1.2 The Explanatory Memorandum provides limited information on or an assessment of the impact of this change on people’s rights. Paragraph 7.4 of the EM states that the change seeks to “replicate the current position as far as possible”. In its response to a request for more information, printed at Appendix 1, the Department iterates that the Government’s view is that “these [rights] will continue to be adequately protected by the European Convention on Human Rights (ECHR) and the rules for processing personal data contained within the UK GDPR and Data Protection Act 2018”. The Government further states that:
1.3 “In practice, the rights most likely to be of relevance to personal data processing are the right to private and family life and right to freedom of expression. These rights were recognised in EU law and affirmed in Article 7 and 11 of the Charter of Fundamental Rights of the European Union (EU Charter) and continue to be protected in domestic law under Article 8 and Article 10 of the ECHR. The EU Charter also includes a specific right to the protection of personal data under Article 8.”
1.4 Without more detailed analysis, it appears to the Committee to be unclear whether this effect is achieved or if there is in fact a diminution of rights in practice. The Committee believes that this makes the instrument appropriate to be considered under the affirmative resolution, so that Members may have the opportunity to ask questions to the Minister. Regulation 3 of the instrument amends primary legislation (the Data Protection Act 2018), which furthers the case for this instrument being taken through the affirmative procedure.
1.5 The Committee recommends that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure), on the ground it is of legal and political importance.
At its meeting on 17 October 2023 the Committee considered proposed negative instruments and has recommended that the appropriate procedure for the following instruments is for them to be subject to annulment in pursuance of a resolution of either House of Parliament (i.e. the negative procedure).
European University Institute Regulations 2023
1)Please explain what mapping the Government has conducted to determine whether there is likely to be any diminution of people’s rights as a result of moving from a framework based on EU fundamental rights and freedoms to one based on the European Convention on Human Rights, or any other similar assessment.
2)Please also explain what assessment the Government has made of the effect on people’s rights of removing references to “the right to” the protection of personal data and the removal of “respect the essence of the right to data protection.
1) We have assessed the fundamental rights and freedoms recognised under EU law prior to EU Exit which may be relevant to the processing of personal data. The Government’s view is that these will continue to be adequately protected by the European Convention on Human Rights (ECHR) and the rules for processing personal data contained within the UK GDPR and Data Protection Act 2018. In practice, the rights most likely to be of relevance to personal data processing are the right to private and family life and right to freedom of expression. These rights were recognised in EU law and affirmed in Article 7 and 11 of the Charter of Fundamental Rights of the European Union (EU Charter) and continue to be protected in domestic law under Article 8 and Article 10 of the ECHR. The EU Charter also includes a specific right to the protection of personal data under Article 8. There is no direct equivalent to this right in the ECHR, however, data protection rights continue to be protected by the rules contained within the UK GDPR and Data Protection Act 2018. The protection of personal data has also been recognised as being of fundamental importance to the right to respect for private, family life, home and correspondence under Article 8 of the ECHR.
2) Article 8 of the Charter of Fundamental Rights of the European Union set out a specific right to the protection of personal data. The Charter was not incorporated into UK law after EU Exit and there is no direct equivalent to the right to the protection of personal data in UK law. References to “the right to” the protection of personal data and respect for the essence of “the right to data protection” in the UK GDPR are therefore omitted by the regulations as this wording is redundant. Data protection rights are protected by the rules contained within the UK GDPR and Data Protection Act 2018 and are also of fundamental importance to the right to respect for private and family life, home and correspondence under Article 8 of the ECHR. The omission of this wording does not diminish the underlying level of protection afforded to personal data by the ECHR and data protection legislation. No discernible impact on data subjects’ rights has therefore been identified as a result of the omission of this wording.
Data Protection Policy Team
Department for Science, Innovation and Technology
9 October 2023
Andrew Jones (in the Chair)
Kirsty Blackman
Sir David Evennett
James Grundy
Liz Twist
Draft Report (Seventh Report), proposed by the Chair, brought up and read.
Ordered, That the draft Report be read a second time, paragraph by paragraph.
Resolved, That the Report be the Seventh Report of the Committee to the House.
Ordered, That the Chair make the Report to the House.
Adjourned to a day and time to be fixed by the Chair.