Private Law Theory

ABSTRACT
Both the Retained EU Law (Revocation and Repeal) Act (REULA) and Regulations 2023/1417 effect significant changes to data protection with potential to undercut the UK’s Council of Europe commitments. Although a non-binding incompatibility order mechanism is provided for, REULA would generally make it impossible to challenge other enactments for inconsistency with the UK GDPR. Since the UK GDPR’s standards and exemptions often overlap with those of Convention 108+, Convention 108 and even the European Convention, there is an increased danger that law contrary to these requirements will remain unremedied. The Regulations 2023/1417 narrow the meaning of fundamental rights to European Convention rights only, whereas both Convention 108 and 108+ adopt a wider open-textured and fully horizontal understanding which explicitly recognises a right to privacy (and, for Convention 108+, even data protection) as such. Since fundamental rights play a central role in data protection, there is a danger that such rights will now be underweighted. However, not only is the UK only a signatory of Convention 108+, but none of the discrete duties or specific rights included in or under any of these instruments, or required under the EU data adequacy, are directly nullified. Parliament will need to take greater care not to legislate contrary to these obligations, the judiciary should take them into account when applying the law and declarations of inconsistency should be used whenever an applicable rights concern arises. Finally, one recognition of the fundamental right to data protection eliminated by the 2023 Regulations may be ultra vires since this was in original primary law and has always had a broader scope than EU law.

Erdos, David, Data Protection Reform via the Retained EU Law (Revocation and Repeal) Act and the Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023/1417: Arguably Partially Unlawful and Liable to Undercut the UK’s Council of Europe Commitments (February 12, 2024), University of Cambridge Faculty of Law Research Paper No 3/2024.