What does this cover?
In a written statement (the Statement) to both the House of Commons and the House of Lords, the UK government (the Government) has announced its decision "not to opt-in" to Article 43a of the GDPR. This article prohibits EU data controllers and processors from recognising the decisions of non-EU courts (or other non-EU authorities) who request the transfer of, or access to, personal data. Article 43a stipulates that such demands should only be recognised or be enforceable where there is an international agreement between the relevant EU member country and the non-EU country. It would essentially restrict the UK from enforcing a foreign judgment.
If the UK had opted into Article 43a, it would have been likely that non-EU countries would have had to request the required data indirectly through the international treaty process.
The decision not to opt-in to Article 43a will mean that Article 43a will now not apply to UK businesses.
Whilst Member States are generally bound by EU Regulations, the Government is entitled to make the decision not to opt-in on any provision dealing with issues of Justice and Home Affairs by way of Protocol 21 of the Treaty on the Functioning of the European Union (TFEU). Protocol 21 prevents such provisions from having automatic application to the UK, allowing it to choose whether or not to adopt them. Denmark and Ireland also have similar Protocol rights under the TFEU but it is not yet known whether they intend to opt-in. The Statement cited the "integrity of the UK legal system" as the reason for the decision not to opt-in to the Article 43a.
To view the statement by the government, please click here.
To view the Government's Statement, please click here.
What action could be taken to manage risks that may arise from this development?
None – for information only. However, note that UK courts will have the ability to enforce judgments requiring the transfer or disclosure of personal data by organisations even where no international agreement or treaty is in existence.