Brexit: Business and security risks of leaving EU data sharing scheme ‘not on Tories’ radar’, experts warn

'The danger of an ad-hoc fix is that things fall between the cracks and, for security issues, that would be a significant risk'

Rob Merrick
Deputy Political Editor
Saturday 03 June 2017 19:30
Access to information-sharing through the Europol the Schengen information system could be lost after Brexit, it is feared
Access to information-sharing through the Europol the Schengen information system could be lost after Brexit, it is feared

Conservative ministers are failing to recognise the danger to businesses and the fight against terrorism from losing rights to share data with the EU after Brexit, experts have warned.

Britain risks a wait of up to three years to be granted an “adequacy decision” from Brussels, threatening to stop the flow of data immediately once EU withdrawal is completed in March 2019.

There are fears – just two weeks after the Manchester bombing – that the police and security services will lose a vital weapon to counter terrorism and organised crime.

At stake is access to information-sharing through the Europol law enforcement agency and to the Schengen information system, which holds an 8,000-name watchlist of potential terror suspects.

Now technology experts have told The Independent they fear the danger of a “cliff edge” is not being given appropriate priority – or is even properly understood – by the Government.

Without a temporary agreement, companies will have to move part of their operations to the EU or risk losing business to rival firms on the Continent.

Crucially, in the absence of an over-arching deal, separate agreements would have to be struck with individual police forces and intelligence services – with the danger that vital information will “fall between the cracks”, one expert said.

“Those organisations would need to be persuaded that Britain can be trusted with data. At the very least, it’s likely to be disruptive and uncertain,” said Ruth Boardman, a partner at the international law firm Bird & Bird.

“The worry is that government simply doesn’t have this issue on its radar as a high enough priority – for both the economy and law enforcement.”

The warning was echoed by Antony Walker, the deputy chief executive of the trade association techUK, who said: “The danger of an ad-hoc fix is that things fall between the cracks and, for security issues, that would be a significant risk.

“Ministers say this is on their list of 10 priority issues, but I’m not sure they understand the full significance of the threat.”

The British Bankers Association has also warned the flow of data “could lapse overnight at the point of UK exit from the EU”.

“Transitional arrangements are needed to avoid a damaging ‘cliff edge’ effect in the movement of data between the EU and UK,” it advised, in a recent policy document.

Strikingly, a Home Office minister, Baroness Williams of Trafford, left a House of Lords committee in the dark when she gave evidence on the controversy in April.

She was unable to say what “the transition arrangements might look like”, telling peers: “I am not being unhelpful. It is just that I cannot.”

Asked whether Britain was willing to sign up to amendments to data transfer rules after Brexit, to ensure continued compliance, Baroness Williams replied: “I literally do not know. That is to be determined.”

The minister was also unable to say whether anyone from the Home Office would be represented at the Brexit negotiations, to ensure the issue was given prominence.

The threat arises because, after Brexit, the UK will be treated as a “third country” – requiring the European Commission to be satisfied it will protect data to the same degree as EU members.

Both Ms Boardman and Mr Walker warned that securing the “adequacy decision” would take at least two years, from March 2019, on the basis of such negotiations in the past – making a temporary deal the only option.

Furthermore, the European Court of Justice (ECJ) has ruled that mass data retention of the kind allowed in the UK under the Investigatory Powers Act, or “snoopers’ charter”, is unlawful, throwing up a further hurdle.

And Theresa May has insisted the ECJ will not have any legal authority in the UK after Brexit – despite Sir Julian King, the European commissioner responsible for security, insisting that will be necessary.

Ms Boardman added: “Anyone asked about the state of UK data law after Brexit would say they don’t have a clue, because there is nothing there to tell us – we simply don’t know what they are going to do.”

Mr Walker said the alternatives to an adequacy decision “don’t give strong legal certainty and would be difficult and costly to put in place”.

Warning businesses need time to move data functions to within the EU, if necessary, he said: “The cliff edge is not right at the end of the process for business – the cliff edge is soon. We need a solution soon.”

A Conservative spokeswoman said: “We have been very clear that as part of the Brexit negotiations, we want to agree a deep and special partnership between the UK and the EU to ensure continued cooperation on security. Theresa May is the best person to secure that arrangement.”

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