Brexit, inevitably

January 31, 2020

This (or 31st Jan 2020 if you read this later), you may have noticed, is a momentous day . For once it does deserve the hype. If anything fits that bill, leaving the EU after 50 years does, I think.

On a personal note, it is a sad one too. As Editor I have tried not to take sides in reporting on the Brexit debate (indeed I have tried to keep it to a barest, factual minimum and left the comment to those on Twitter) but I cannot let this opportunity pass without saying that I think leaving the EU is a bad idea. 

Why? Not particularly because of the effects on trade (and who knew four years ago we’d all become barrack room WTO trade lawyers) nor because I think the arguments for leaving lacked coherence and were based on factual misunderstandings. Trade will continue, albeit disrupted short term and at reduced levels in the medium-term, and those who supported leave could refute my doubts and challenge the veracity of my own assumptions. 

No, my reasoning is primarily (and I’ll admit perhaps naively) that I like the idea of working with, rather than against, our neighbours. Secondly, leaving the EU seems to me to be trying to turn back the tide of history. The ever growing reach of trade (from the next village to the Silk Road to just-in-time manufacturing) and the increases in speed of communication (from beacons to railways through to 5G) inevitably mean that communities, nations, territories whatever you want to call them, become more connected and the pull of working together to enhance peaceful, easier, trade makes sense. Let’s not forget that Bristol used to work on a different time to London until Brunel built a railway between the two: I have yet to see anyone campaign for a return to Bristol time. 

So the evolution of a pan-European federation of states and territories never held any fears for me and, in our field, the lightspeed transmission and sharing of data, information, currencies and other digital commodities seemed to make that trajectory more, not less, inevitable (I’ll ignore the irony that such developments also allowed Facebook et al to affect the outcome – another day perhaps).

But, to use a now cliched phrase “we are where we are” and so, in my role as Editor, I will try to reflect the new reality. There will, of course, be many debates about data and adequacy in the next year and we will cover these as honestly as we can. There are rumblings that the EU thinks recognition of adequacy is one of their trump cards in the negotiations and our own Lords Select Committee of the EU, in its assessment of the revised Withdrawal Bill (now of course in force) noted its concern about change to the Political Declaration at [245-246] in its report:

“245. The text of the Declaration on digital is unchanged. It calls for the establishment of “provisions to facilitate electronic commerce, address unjustified barriers to trade by electronic means, and ensure an open, secure and trustworthy online environment for businesses and consumers”………. There is, however, no commitment to the maintenance of free data flows, or to the continued abolition of data roaming charges.

246. Given its growing importance to the UK’s economy, the specific emphasis on digital services in the Political Declaration is welcome. Nevertheless, the Declaration’s emphasis on the facilitation of data flows, rather than on the retention of free data flows, appears to mark a lowering of ambition when compared with the ongoing development of the EU’s Digital Single Market.”

As we know, an adequacy decision could hinge on the provisions in IPA so we will keep an eye on that alongside many of the other issues that will crop up, such as data roaming, and those that we may not even have thought of yet. 

For example, I read a press release this week from the CMA that seems to encapsulate the position nicely. The release is all about the agency’s role during the transition period and thereafter:

“CMA is expected to take on responsibility [from 1st January 2020] for larger and more complex merger, cartel and competition enforcement cases that were previously reserved to the European Commission…… It is for the Government to decide how any new UK subsidy control or state aid rules will operate in the future, including whether the CMA has a role to play in a new regime.”

One thought leaps out (aside from the fact that we will, from next year, have to foot the bill for these investigations on our own): the phrase “is expected” means there is uncertainty and a possibility that the CMA may not exist in this time next year. That is not something I had thought about till this week but now becomes another entry on the watchlist.

To finish though I will reject the posture of being a “doomster and gloomster” (noting that gloom is not the same as doom) and hold out a point of light: the publication this month of the ICO’s Age Appropriate Design Code.  As they proudly point out, this is the first Code of its kind anywhere in the world and “reflects the global direction of travel with similar reform being considered in the USA, Europe and globally by the Organisation for Economic Co-operation and Development (OECD)”

Whether you think the Code is the right one or workable in practice, it is good to see that, for now at least, we are still actively developing data protection in step with our friends from around the world.

David Chaplin, SCL Editor