June 28, 2016 | Pam Cowburn

What does Brexit mean for the IP Bill?

The outcome of the referendum could affect the progress of the IP Bill.

One of the consistent criticisms by ORG and other civil society organisations has been that there has been insufficient scrutiny of such an important and far-reaching Bill. While parliamentarians, media and the public are preoccupied with the outcome of last week’s EU referendum, it's unlikely that such scrutiny will take place now. That’s why ORG has called for the progress of this Bill to be put on hold until we have a new Prime Minister and a clearer sense of what the UK’s political future looks like. The Government will no doubt do everything it can to keep the IP Bill on track but the political fallout of Brexit and ongoing legal cases could affect the BIll’s progress.

Watson/Davis ruling

The Court of Justice of the European Union is likely to issue its Judgment about the Data Retention and Investigatory Powers Act (DRIPA) case brought by MPs Tom Watson and David Davis. In 2015, the High Court ruled that parts of DRIPA were unlawful; the Government appealed and the case was referred to the CJEU. Their Judgment will have implications for the data retention powers outlined in the IP Bill.

In the short term, as negotiations proceed to leave, there may be a temptation to ignore CJEU rulings. However, this would be highly unwise, as it would leave the UK open to swift ejection from the EU on grounds of failing to abide by our treaty obligations. This would weaken the UK’s negotiating hand as well as angering our negotiation partners.

The European Court of Human Rights is different from the CJEU. It rules on the European Convention of Human Rights, which the UK is currently signed up to whether or not it leaves the EU – although the Home Secretary and possible Conservative Party leader Theresa May has called for the UK to withdraw from the convention.

In theory, the ECHR and Charter of Fundamental Rights set the same standards on privacy and other human rights. So in the long term, the same principles set from the CJEU judgments should eventually be set by the ECtHR in other new cases. However, this means new legal challenges that ask this court to explain the principles. And unlike the CJEU, the powers to instruct legislators to alter or delete legislation or remove decisions are absent. Instead, the ECHR gives general advice on the principles to be adhered to.

So theoretically, Brexit would have no effect on standards of privacy. In practice, if we are outside of EU law, protections related to many Internet matters will be weaker, in that they will take a lot longer to fix, and the government has much greater flexibility in addressing them.

Data protection

Under European data protection law, when companies are transferring EU citizens’ data to non- EU countries, there must be an adequate level of protection for this data. On Friday, the Information Commissioner’s Office issued a statement that said:

“If the UK is not part of the EU, then upcoming EU reforms to data protection law would not directly apply to the UK. But if the UK wants to trade with the Single Market on equal terms we would have to prove 'adequacy' - in other words UK data protection standards would have to be equivalent to the EU's General Data Protection Regulation framework starting in 2018.

“Having clear laws with safeguards in place is more important than ever given the growing digital economy, and we will be speaking to government to present our view that reform of the UK law remains necessary”.

This could mean that the IP Bill, as well as data protection law, will need to be reformed. As the Safe Harbour case brought by Max Schrems showed, the surveillance powers given to GCHQ, the police and government departments in the IP Bill could mean that UK companies cannot guarantee that they will meet the EU’s data protection standards. The consequences for UK business could be severe. Last week, Forbes reported that:

“More than three-quarters of the UK’s economy is based on services, and much of that involves the transfer of data. Digital industries represent 10 per cent of Britain’s GDP. And while the UK has historically been seen by many multinationals as a gateway to Europe, that’s a gateway that could now be slammed shut.”

General election

The new Prime Minister could call for a general election in late autumn to secure their political mandate and give the electorate the opportunity to vote on any offers negotiated about the EU. This could mean that the IP Bill is rushed through as part of the ‘wash up’ (the last few days before Parliament is dissolved). To do this with such a complex and large Bill would be unacceptable. Alternatively, the IP Bill could be put on hold until a new Government is formed. This would mean that the Data Retention and Investigatory Powers Act (DRIPA) sunset clause would expire in December 2016 but MPs could vote to extend this date before Parliament is dissolved.

Labour Shadow Cabinet resignations

Many members of Labour’s shadow Cabinet have resigned their posts since the referendum result and called for a change of Labour leader. Keir Starmer, who until now has been leading for Labour on the IP Bill, is among those who have resigned. ORG and others in the Don’t Spy on Us coalition have spent significant amounts of time talking to Keir Starmer to ensure that Labour were fully aware of our arguments. It is not clear who will now lead for Labour on the IP Bill but we will work to ensure that  Labour continue to be fully briefed on why the Bill is not fit for purpose.

ORG will keep campaigning for the IP Bill to be amended - please support us by joining today.