By Julian Hayes, Partner at BCL Solicitors LLP
“We want the UK….to be the best place in the world to start and grow a digital business”. With this ambitious aim, the Government has laid out its National Data Strategy, focusing on unlocking the value of data, establishing a pro-growth data protection regime, and championing international data flows to promote economic development. Already a feted success, the UK’s digital sector now stands behind only the US and China in global venture capital funding and directly employs more than 1.5 million people in London and other major UK cities. Despite its laudable aspiration, however, the Data Strategy signals post-Brexit regulatory intentions which risk inhibiting and choking off the future growth of this successful UK industrial sector.
Bonfire of data obligations?
Though it emphasises the importance of public support and maintaining trust in how personal data is used, the Data Strategy highlights business’ lack of clarity about current data protection rules, takes implicit aim at the burden of the current data regime on innovators and entrepreneurs, and laments costly over-compliance and consequent risk aversion. In response, the Data Strategy foreshadows alleviating data compliance obligations, particularly for SMEs, once the Brexit transition period ends on 31 December 2020. Although the Data Strategy carefully avoids specifics, the complexity of the GDPR’s principles-based system and one-size fits all approach have long been a bugbear for micro-enterprises. Indeed, acknowledging concern in its recent two-year review of the GDPR, the European Commission (EC) itself urged national data regulators to lend SMEs a helping hand by offering ready-made templates, training and consultancy helplines. Nevertheless, the EC rejected calls to exempt smaller businesses from GDPR obligations, arguing that data risks were not dependent on an operator’s size.
Cross-border transfer dilemmas
Equally contentious is the Data Strategy’s approach to cross-border data transfers, cited as being of fundamental importance for economic development. The Data Strategy complains that such transfers of personal data are currently being inappropriately constrained and celebrates that the UK will be able to make its own ‘data adequacy’ decisions to allow for extra-territorial personal data transfers in a post-Brexit world. Unlike EC adequacy decisions which involve consultation between the Commission, the European Data Protection Board (EDPB) collectively representing EU data regulators, and member state representatives, UK adequacy decisions will be in the gift of the Secretary of State, subject only to Parliament’s rarely used negative resolution procedure. The Data Strategy effectively suggests UK adequacy decisions will be ‘up for grabs’ in future bilateral trade negotiations.
The transfer of personal data from the EU to ‘third countries’ has been a running sore in relations with the US which has not been granted an EC adequacy decision. The European Court of Justice (CJEU) has twice torpedoed hard-negotiated EU-US personal data transfer mechanisms, first ‘Safe Harbour’ and most recently the ‘Privacy Shield’ on which an estimated $7.1 trillion of annual transatlantic digital trade relied. US-UK trade documents leaked to the media in late 2019 suggested the US was seeking to weaken European data protection in its ongoing free trade negotiations with the UK.
These revelations merely added to pre-existing concern in Brussels, based on the UK’s Investigatory Powers Act (IPA), that Britain’s legal regime already falls short of offering an “essentially equivalent” level of personal data protection to that enjoyed in the EU. Aspects of the IPA have been repeatedly criticised by the European Courts, most recently in Privacy International’s challenge to the UK’s bulk retention powers. UK data sharing with third countries for law enforcement purposes has also raised concern in Brussels, with reservations at the UK’s participation with non-EU allies in the ‘Five Eyes’ agreement and expressions of disquiet by the EDPB and Members of the European Parliament at the implications for personal data protection of the UK-US bilateral data sharing agreement signed in October 2019.
Data adequacy – wait and see
Against this unpropitious backdrop, the prospects of Britain being granted an EC adequacy decision by the end of the Brexit transition period – something which the UK is pursuing – appear somewhat forlorn. From the Commission’s perspective, in the face of concerns over US authorities’ access to personal data, how could it grant an EC adequacy decision to the UK, allowing the free flow of EU personal data to Britain when the UK could, in turn, grant its own adequacy decision to the US, theoretically facilitating EU personal data to flow westwards to the US without what the EC regards as adequate protection? Even were the Commission to grant an EC adequacy decision to the UK, it is likely the decision would quickly face challenge in the CJEU from privacy campaigners. In any event, with the Data Strategy foreshadowing imminent changes to UK legislation, how could the Commission practically compare its own data protection regime with one which is morphing into something as yet undefined? Logic surely dictates it would delay making an EC adequacy decision until the future outline of the UK’s data protection regime becomes apparent.
Add to this uncertain picture energised lobbying by European interest groups who, even as the Commission assesses the UK’s data protection regime, have opened a new front in the “battle for adequacy”. The Irish Council for Civil Liberties has recently written to the Commission castigating the UK’s data watchdog, the Information Commissioner for being fundamentally supine, unwilling and unable to take on the “hard cases” when enforcing national data laws, even if those laws were deemed on a par with those of the EU.
All things considered, the chances of a smooth segue into the new era of EU–UK data flows at the end of the Brexit transition period seem bleak, and though undesirable, a wait and see outcome for an adequacy agreement must now be the most likely outcome.
Tech unicorns tethered
Avowedly aiming to drive UK economic growth by alleviating the deadweight of data protection obligations, the Data Strategy envisages digital entrepreneurs and innovators of the UK’s digital economy powering the country to success after the COVID-led downturn. But with the status quo of the transition period drawing to a close and an EC data adequacy decision potentially on-hold until the UK’s data protection regime becomes settled, the UK’s tech start-ups may in fact find themselves hamstrung by having to satisfy the EC’s data protection requirements in other ways, including the use of Standard Contractual Clauses and Binding Corporate Rules, if they wish to do business in Europe, adding an unwelcome layer of bureaucracy and expense to their overheads. Looking across the Atlantic, even if a US free trade deal is agreed, those same UK unicorns which the Government wishes to foster would confront the formidable stranglehold of the US tech giants when seeking to break into the North America market. That would leave them reliant on the altogether smaller domestic market which would likely inhibit their growth. Despite the Data Strategy’s good intentions, its inadvertent consequence may in fact be the stifling of the very sector it was designed to assist.
UK might need negative rates if recovery disappoints – BoE’s Vlieghe
By David Milliken and William Schomberg
LONDON (Reuters) – The Bank of England might need to cut interest rates below zero later this year or in 2022 if a recovery in the economy disappoints, especially if there is persistent unemployment, policymaker Gertjan Vlieghe said on Friday.
Vlieghe said he thought the likeliest scenario was that the economy would recover strongly as forecast by the central bank earlier this month, meaning a further loosening of monetary policy would not be needed.
Data published on Friday suggested the economy had stabilised after a new COVID-19 lockdown hit retailers last month, while businesses and consumers are hopeful a fast vaccination campaign will spur a recovery.
Vlieghe said in a speech published by the BoE that there was a risk of lasting job market weakness hurting wages and prices.
“In such a scenario, I judge more monetary stimulus would be appropriate, and I would favour a negative Bank Rate as the tool to implement the stimulus,” he said.
“The time to implement it would be whenever the data, or the balance of risks around it, suggest that the recovery is falling short of fully eliminating economic slack, which might be later this year or into next year,” he added.
Vlieghe’s comments are similar to those of fellow policymaker Michael Saunders, who said on Thursday negative rates could be the BoE’s best tool in future.
Earlier this month the BoE gave British financial institutions six months to get ready for the possible introduction of negative interest rates, though it stressed that no decision had been taken on whether to implement them.
Investors saw the move as reducing the likelihood of the BoE following other central banks and adopting negative rates.
Some senior BoE policymakers, such as Deputy Governor Dave Ramsden, believe that adding to the central bank’s 875 billion pounds ($1.22 trillion) of government bond purchases remains the best way of boosting the economy if needed.
Vlieghe underscored the scale of the hit to Britain’s economy and said it was clear the country was not experiencing a V-shaped recovery, adding it was more like “something between a swoosh-shaped recovery and a W-shaped recovery.”
“I want to emphasise how far we still have to travel in this recovery,” he said, adding that it was “highly uncertain” how much of the pent-up savings amassed by households during the lockdowns would be spent.
By contrast, last week the BoE’s chief economist, Andy Haldane, likened the economy to a “coiled spring.”
Vlieghe also warned against raising interest rates if the economy appeared to be outperforming expectations.
“It is perfectly possible that we have a short period of pent up demand, after which demand eases back again,” he said.
Higher interest rates were unlikely to be appropriate until 2023 or 2024, he said.
($1 = 0.7146 pounds)
(Reporting by David Milliken; Editing by William Schomberg)
UK economy shows signs of stabilisation after new lockdown hit
By William Schomberg and David Milliken
LONDON (Reuters) – Britain’s economy has stabilised after a new COVID-19 lockdown last month hit retailers, and business and consumers are hopeful the vaccination campaign will spur a recovery, data showed on Friday.
The IHS Markit/CIPS flash composite Purchasing Managers’ Index, a survey of businesses, suggested the economy was barely shrinking in the first half of February as companies adjusted to the latest restrictions.
A separate survey of households showed consumers at their most confident since the pandemic began.
Britain’s economy had its biggest slump in 300 years in 2020, when it contracted by 10%, and will shrink by 4% in the first three months of 2021, the Bank of England predicts.
The central bank expects a strong subsequent recovery because of the COVID-19 vaccination programme – though policymaker Gertjan Vlieghe said in a speech on Friday that the BoE could need to cut interest rates below zero later this year if unemployment stayed high.
Prime Minister Boris Johnson is due on Monday to announce the next steps in England’s lockdown but has said any easing of restrictions will be gradual.
Official data for January underscored the impact of the latest lockdown on retailers.
Retail sales volumes slumped by 8.2% from December, a much bigger fall than the 2.5% decrease forecast in a Reuters poll of economists, and the second largest on record.
“The only good thing about the current lockdown is that it’s no way near as bad for the economy as the first one,” Paul Dales, an economist at Capital Economics, said.
The smaller fall in retail sales than last April’s 18% plunge reflected growth in online shopping.
BORROWING SURGE SLOWED IN JANUARY
There was some better news for finance minister Rishi Sunak as he prepares to announce Britain’s next annual budget on March 3.
Though public sector borrowing of 8.8 billion pounds ($12.3 billion) was the first January deficit in a decade, it was much less than the 24.5 billion pounds forecast in a Reuters poll.
That took borrowing since the start of the financial year in April to 270.6 billion pounds, reflecting a surge in spending and tax cuts ordered by Sunak.
The figure does not count losses on government-backed loans which could add 30 billion pounds to the shortfall this year, but the deficit is likely to be smaller than official forecasts, the Institute for Fiscal Studies think tank said.
Sunak is expected to extend a costly wage subsidy programme, at least for the hardest-hit sectors, but he said the time for a reckoning would come.
“It’s right that once our economy begins to recover, we should look to return the public finances to a more sustainable footing and I’ll always be honest with the British people about how we will do this,” he said.
Some economists expect higher taxes sooner rather than later.
“Big tax rises eventually will have to be announced, with 2022 likely to be the worst year, so that they will be far from voters’ minds by the time of the next general election in May 2024,” Samuel Tombs, at Pantheon Macroeconomics, said.
Public debt rose to 2.115 trillion pounds, or 97.9% of gross domestic product – a percentage not seen since the early 1960s.
The PMI survey and a separate measure of manufacturing from the Confederation of British Industry, showing factory orders suffering the smallest hit in a year, gave Sunak some cause for optimism.
IHS Markit’s chief business economist, Chris Williamson, said the improvement in business expectations suggested the economy was “poised for recovery.”
However the PMI survey showed factory output in February grew at its slowest rate in nine months. Many firms reported extra costs and disruption to supply chains from new post-Brexit barriers to trade with the European Union since Jan. 1.
Vlieghe warned against over-interpreting any early signs of growth. “It is perfectly possible that we have a short period of pent up demand, after which demand eases back again,” he said.
“We are experiencing something between a swoosh-shaped recovery and a W-shaped recovery. We are clearly not experiencing a V-shaped recovery.”
($1 = 0.7160 pounds)
(Editing by Angus MacSwan and Timothy Heritage)
Oil extends losses as Texas prepares to ramp up output
By Devika Krishna Kumar
NEW YORK (Reuters) – Oil prices fell for a second day on Friday, retreating further from recent highs as Texas energy companies began preparations to restart oil and gas fields shuttered by freezing weather.
Brent crude futures were down 33 cents, or 0.5%, at $63.60 a barrel by 11:06 a.m. (1606 GMT) U.S. West Texas Intermediate (WTI) crude futures fell 60 cents, or 1%, to $59.92.
This week, both benchmarks had climbed to the highest in more than a year.
“Price pullback thus far appears corrective and is slight within the context of this month’s major upside price acceleration,” said Jim Ritterbusch, president of Ritterbusch and Associates.
Unusually cold weather in Texas and the Plains states curtailed up to 4 million barrels per day (bpd) of crude production and 21 billion cubic feet of natural gas, analysts estimated.
Texas refiners halted about a fifth of the nation’s oil processing amid power outages and severe cold.
Companies were expected to prepare for production restarts on Friday as electric power and water services slowly resume, sources said.
“While much of the selling relates to a gradual resumption of power in the Gulf coast region ahead of a significant temperature warmup, the magnitude of this week’s loss of supply may require further discounting given much uncertainty regarding the extent and possible duration of lost output,” Ritterbusch said.
Oil fell despite a surprise drop in U.S. crude stockpiles in the week to Feb. 12, before the big freeze. Inventories fell by 7.3 million barrels to 461.8 million barrels, their lowest since March, the Energy Information Administration reported on Thursday. [EIA/S]
The United States on Thursday said it was ready to talk to Iran about returning to a 2015 agreement that aimed to prevent Tehran from acquiring nuclear weapons. Still, analysts did not expect near-term reversal of sanctions on Iran that were imposed by the previous U.S. administration.
“This breakthrough increases the probability that we may see Iran returning to the oil market soon, although there is much to be discussed and a new deal will not be a carbon-copy of the 2015 nuclear deal,” said StoneX analyst Kevin Solomon.
(Additional reporting by Ahmad Ghaddar in London and Roslan Khasawneh in Singapore and Sonali Paul in Melbourne; Editing by Jason Neely, David Goodman and David Gregorio)
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