Boris Johnson’s resignation and data protection reform:  a moment of challenge for UK data adequacy?

Our head of Data and Privacy, Eleonor Duhs, considers what Johnson’s resignation could mean for upcoming legislative changes.

Following Boris Johnson’s resignation as leader of the Conservative Party, the principle which applies (and which Boris Johnson has reportedly accepted) is that no new major policies should be brought forward until a successor is appointed.  The Data Reform Bill will therefore not be introduced until the Autumn.  The direction of travel on the government’s legislative agenda will depend on who is chosen as Conservative Party leader and the next Prime Minister.  The leadership candidates are taking a combative stance to the EU.  This could be the beginning of a radical agenda, including withdrawal by the UK from the European Convention on Human Rights (“ECHR”) and divergence from EU standards including on data protection.  These policies could spell the end of the free flow of data from the EU to the UK. 

What happens now Boris Johnson has resigned?

Boris Johnson’s resignation on 7^th July has significant implications for the government’s policy and legislative agenda.  Any “new action of a continuing or long-term character” must now be put on ice so as to not bind a future government, as specified in the Cabinet Manual at paragraph 2.27.  Boris Johnson is reported to have accepted that these principles apply.

Implications for data protection reform and other legislative changes

If these procedures are followed this suggests that the Data Reform Bill will not be introduced imminently.  The same is true of the Brexit Freedoms Bill (which was already in significant difficulty).  Commentators also consider that controversial legislation which has already been introduced such as the Bill of Rights may not move forward for now. A new leader of the Conservative Party and Prime Minister will decide what policies to proceed with and what to shelve. 

What’s the likely timetable?

Even if a successor is chosen quickly, the new Prime Minister will need to appoint a Cabinet and new Ministerial team.   Summer recess (when the House stops sitting) begins on 21^st July.  It is therefore very unlikely that decisions will be taken about the government’s legislative agenda until the Autumn.  Parliament will sit again on 5^th September. 

Will a new conservative leader move ahead with the data protection reforms?

It seems likely that the Data Reform Bill will be introduced once the new leader has been installed. Being seen to cut red tape for business is a theme that the Conservative Party will instinctively rally behind. But whether the reforms remain relatively modest and cautious (see previous analysis here) is less certain.

What about the wider legislative agenda?

Amongst the most controversial pieces of legislation introduced by the Johnson administration was the Northern Ireland Protocol Bill.  One of the leadership candidates, Suella Braverman (current Attorney General), writing in the Express, has said that we need to “get on and finish Brexit” and that “there must be no backsliding on the [Northern Ireland] Protocol bill going through parliament.” Even those candidates who are seen as being to the left of the Conservative Party such as Tom Tugendhat and Jeremy Hunt have announced their intention to proceed with the Protocol Bill.  Commentators (including Sir Jonathan Jones QC, former Treasury Solicitor) are of the view that the Protocol Bill breaches international law and has further damaged the UK’s relationship with the EU. The Bill could also result in a trade war with the EU.

Suella Braverman has stated that the UK should withdraw from the ECHR.  Other leadership candidates might follow.  This would have profound implications for the UK’s devolution settlements, the Good Friday/Belfast agreement and the UK’s obligations under the Trade and Cooperation Agreement.  She has also indicated support for repealing retained EU law (which includes the UK GDPR).  Even if the UK GDPR is saved from the “cliff edge” the new Prime Minister could set the UK on a path of greater divergence from the EU.  Following such a path, as well as ending membership of the ECHR, could spell the end of the free flow of data from the EU to the UK.

Conclusion

The government set out a relatively measured and cautious response to the consultation Data:  a new Direction.  The candidates for the Conservative Party leadership are signalling that controversial policies may still be implemented.  Some appear keen to go further than Boris Johnson’s administration by taking the UK out of the ECHR altogether.  This risks not only the free flow of data from the EU, the UK’s wider trading relationship with the EU, but also the cohesion of the UK itself.  The consequences of pursuing these policies would be profound and detrimental.