Data protection law has a very prominent position in the Political Declaration setting out the future relationship between the EU and the UK in the first section covering the basis for cooperation. The data protection section is immediately after core values and rights.

The declaration states “the European Commission will start the assessments with respect to the United Kingdom as soon as possible after the United Kingdom’s withdrawal, endeavouring to adopt decisions by the end of 2020, if the applicable conditions are met.”

The reciprocal nature of this arrangement is that “the United Kingdom will in the same timeframe take steps to ensure the comparable facilitation of transfers of personal data to the Union, if the applicable conditions are met.”

The last paragraph is about cooperation which seems to refer specifically to the European Data Protection Board. “In this context, the Parties should also make arrangements for appropriate cooperation between regulators.”

The background to this point is that both Elizabeth Denham, the UK’s Information Commissioner, and the European Data Protection Supervisor are equally keen to keep the ICO actively engaged as a member of the European Data Protection Board (EDPB). As the Data Protection Authority with the most staff in the EU, the UK’s ICO has the resources to now lead working groups on several subjects.

In Brussels last month, at the 40th International Conference of Data Protection and Privacy Commissioners, Giovanni Buttarelli, the European Data Protection Supervisor, whose office provides the EDPB’s secretariat, stated that it is his aim to “arrange the architecture to find a solution” to keep the ICO actively engaged with the European Data Protection Board. Although the UK would not have the right to a place on the EDPB if the UK had left the EU, it could be achieved by a treaty between the EU and the UK to this effect.

This week at the World Data Protection Forum in London, Wojciech Wiewiórowski, Assistant European Data Protection Supervisor, speaking about the UK’s position on the EDPB, declared “we are open to different kinds of inventive solutions. But even if the UK is to be an observer, it has to be in a legal agreement. At the moment… after the transitional period, the UK ICO would be in the same position as Switzerland.” Switzerland does not attend EDPB meetings unless specifically invited for a subject to which it is a party, for example, the Schengen Agreement.

See paragraphs 8-10 of the Political Declaration.

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