Data rights: the authoritarian and deregulatory drift continues

The government is appraising responses to its consultation on data regulation.

The government is currently reviewing its approach to data regulation – and, yes, we should be worried. The proposal outlined last year, Data: a new direction, hits many of the usual notes in their Brexit aspirations. In order to take advantage of the ‘opportunities’ of Brexit, the UK would deregulate, diverging away from EU standards.

This means departing from the EU’s more stringent approach to data and privacy. Under the guise of ‘flexibility’ and ‘future proofing’, the report proposes creating new loopholes that represent a partial step towards self-regulation with an emphasis on guidance over enforcement. These steps have been designed, they claim, to create an innovative economy. But, in truth, this looks like old fashioned Thatcherite deregulation, which would help cowboy operators and undermine the more responsible. As the Open Rights Group have argued in their response to the consultation, our strong regulatory standards on data have boosted, not inhibited, science and technology.   

Like with most other aspects of the Brexit process, this also confronts the problem that moving away from European standards will put up new barriers to information sharing between the UK and EU. Back in June 2021, the EU Commission recognised UK data regulation as equivalent to its own rules, thus allowing personal data to move unrestricted from the EU into the UK. While not entirely uncontroversial, this did reflect the fact that the UK had not changed its data protection laws at the time, retaining the system which it had used as an EU member.

The consultation is full of the usual wishful thinking on this score. The government argue that “it is perfectly possible and reasonable to expect the UK to maintain EU adequacy as it begins a dialogue about the future of its data protection regime and moves to implement any reforms in the future”. So, they setup the terrain for the next EU-UK dispute, signalling that they will attempt to sustain EU data equivalency without accepting the bloc’s rules.  

To make matter worse, the proposals also talk about yet another executive power grab. This time they are creating a new governance structure that will undermine the independence of the Information Commissioner’s Office (ICO). While the latter’s response to the consultation is for the most part very diplomatic, they register ‘strong concerns’ over the proposal’s ‘risk to [their] regulatory independence’. Mirroring the way that the government’s Elections Bill takes a worrying step towards executive control, the consultation document envisages the Secretary of State establishing control over the appointment of the chief executive and approving its overall strategic guidance.

So, another set of bad proposals, another authoritarian shift.

We wish we were surprised.