Beyond Brexit: EU-UK Policing, Security, and Data Sharing

Abstract

The EU made legal history in its unprecedented step to grant adequacy decisions under both the EU General Data Protection Regulation (GDPR) and the EU Law Enforcement Directive (LED) to the UK. Of course, although the UK is now a third country, as a former EU Member State it is still considered part of the ‘European privacy family’. However, subsequent developments suggest that major divergences may be on the cards with respect to the relationship of the UK legal order with the EU and ECHR legal systems and the UK’s alignment with both concerning the protection of personal data.

This paper identifies and examines the EU, UK, and international legal frameworks governing data sharing for law enforcement and security purposes established as a result of the UK's exit from the EU.The analysis discusses the overall negotiations process underpinning Brexit and examines the key resulting regimes, including the Trade and Cooperation Agreement (TCA) and the EU-UK data adequacy agreements granted under the GDPR and the LED.

The paper concludes with some critical analysis and reflections on the above frameworks, with particular regard to the implications for the protection of EU fundamental rights, current compliance issues with EU law and Article 8 ECHR posed by the UK Investigtory Powers Act 2016, and how proposed reforms to the UK's Human Rights Act risk jeopardising the TCA and both EU-UK Adequacy Decisions.

Keywords: Brexit, data protection, data adequacy, law enforcement, GDPR, TCA, LED, EU law, EU fundamental rights, ECHR, right to privacy

JEL Classification: C80, D80, H56,