Proposed negative instruments
Instruments laid for sifting under the Retained EU Law (Revocation and Reform) Act 2023
Instrument recommended for upgrade to the affirmative procedure
Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023
1.This proposed negative instrument would replace the definitions of “fundamental rights” and “fundamental freedoms” in the United Kingdom General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA). Currently, these terms are defined by reference to rights contained in retained EU law. The new references would be to an alternative source of fundamental rights and freedoms under the European Convention on Human Rights (ECHR), as enshrined in the UK’s Human Rights Act 1998. The instrument has been laid using powers to revoke or replace secondary retained EU law under section 14(1) and (2) of the Retained EU Law (Revocation and Reform) Act 2023 (REUL).
2.The Department for Science, Innovation and Technology (DSIT) states in the Explanatory Memorandum (EM) that the “impact on organisations and individuals as a result of these changes is expected to be minimal because these changes seek to replicate the current position as far as possible, while providing clarity on the rights that need to be considered in a domestic law context”. This explanation indicates that the current position may not be replicated fully. Asked whether there could be a reduction in rights protection, the Department told us that:
“The rights that will come into play when considering Convention rights relevant to the processing of personal data are unlikely to differ significantly from the rights which should currently be considered under retained EU law, where relevant to a processing activity. The rights most likely to be relevant to processing of personal data under EU law are the right to private life and right to freedom of expression, which were recognised as general principles of EU law before the end of the EU Exit Transition Period. The right to private and family life and right to freedom of expression also constitute rights under Article 8 and Article 10 of the ECHR and will therefore continue to be captured by the new definitions of “fundamental rights and freedoms”. No discernible impact on standards of data protection has therefore been identified as a result of the changes made by this statutory instrument.”
3.The Department’s statement suggests that potential differences in the rights and freedoms cannot be ruled out entirely. Even if the Department has not identified any discernible impact, any changes in this sensitive area may be regarded as politically significant and something on which the House may wish to seek assurance from the Minister. We therefore recommend an upgrade of the instrument to the affirmative procedure.
4.We have received a submission from a Professor of Law at Cambridge University which suggests that the proposed changes may be more significant than indicated in the EM and which raises concerns about the instrument seeking to amend primary legislation. We have published the submission on our website.1
Instrument about which no recommendation to upgrade is made
- European University Institute Regulations 2023