COMMISSION IMPLEMENTING REGULATION (EU) 2021/1772

of 28 June 2021

pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate protection of personal data by the United Kingdom

(notified under document C(2021)4800)

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (1), and in particular Article 45(3) thereof,

Whereas:

1. INTRODUCTION

(1) Regulation (EU) 2016/679 sets out the rules for the transfer of personal data from controllers or processors in the European Union to third countries and international organisations to the extent that such transfers fall within its scope of application. The rules on international data transfers are laid down in Chapter V of that Regulation, that is in Articles 44 to 50. While the flow of personal data to and from countries outside the European Union is essential for the expansion of international cooperation and cross-border trade, the level of protection afforded to personal data in the European Union must not be undermined by transfers to third countries (2).

(2) Pursuant to Article 45(3) of Regulation (EU) 2016/679, the Commission may decide, by means of an implementing act, that a third country, a territory or one or more specified sectors within a third country, or an international organisation ensure(s) an adequate level of protection. Under this condition, transfers of personal data to a third country may take place without the need to obtain any further authorisation, as provided for in Article 45(1) and recital 103 of that Regulation.

(3) As specified in Article 45(2) of Regulation (EU) 2016/679, the adoption of an adequacy decision has to be based on a comprehensive analysis of the third country's legal order, covering both the rules applicable to the data importers and the limitations and safeguards as regards access to personal data by public authorities. In its assessment, the Commission has to determine whether the third country in question guarantees a level of protection “essentially equivalent” to that ensured within the European Union (recital 104 of Regulation (EU) 2016/679). The standard against which the “essential equivalence” is assessed is that set by European Union legislation, notably Regulation (EU) 2016/679, as well as the case law of the Court of Justice of the European Union (3). The European Data Protection Board’s (EDPB) adequacy referential is also of significance in this regard (4).

(4) As clarified by the Court of Justice of the European Union, this does not require finding an identical level of protection (5). In particular, the means to which the third country in question has recourse for protecting personal data may differ from the ones employed in the European Union, as long as they prove, in practice, effective for ensuring an adequate level of protection (6). The adequacy standard therefore does not require a point-to-point replication of Union rules. Rather, the test lies in whether, through the substance of data protection rights and their effective implementation, supervision and enforcement, the foreign system as a whole delivers the required level of protection (7).

(5) The Commission has carefully analysed the law and practice of the United Kingdom. Based on the findings developed in recitals (8) to (270), the Commission concludes that the United Kingdom ensures an adequate level of protection for personal data transferred within the scope of Regulation (EU) 2016/679 from the European Union to the United Kingdom.

(6) This conclusion does not concern personal data transferred for United Kingdom immigration control purposes or which otherwise falls within the scope of the exemption from certain data subject rights for purposes of the maintenance of effective immigration control (the “immigration exemption”) pursuant to paragraph 4(1) of Schedule 2 to the UK Data Protection Act. The validity and interpretation of the immigration exemption under UK law is not settled following a decision of the England and Wales Court of Appeal of 26 May 2021. While recognising that data subject rights can, in principle, be restricted for immigration control purposes as “an important aspect of the public interest”, the Court of Appeal has found that the immigration exemption is, in its current form, incompatible with UK law, as the legislative measure lacks specific provisions setting out the safeguards listed in Article 23(2) of the United Kingdom General Data Protection Regulation (UK GDPR) (8). In these conditions, transfers of personal data from the Union to the United Kingdom to which the immigration exemption can be applied should be excluded from the scope of this Decision (9). Once the incompatibility with UK law is remedied, the immigration exemption should be reassessed, as well as the need to maintain the limitation of the scope of this Decision.

(7) This Decision should not affect the direct application of Regulation (EU) 2016/679 to organisations established in the United Kingdom where the conditions regarding the territorial scope of that Regulation, laid down in its Article 3, are fulfilled.

2. RULES APPLYING TO THE PROCESSING OF PERSONAL DATA

2.1. The constitutional framework

(8) The United Kingdom is a Parliamentary democracy which has a constitutional sovereign as Head of State. It has a sovereign Parliament, which is supreme to all other government institutions, an Executive drawn from and accountable to Parliament and an independent judiciary. The Executive draws its authority from its ability to command the confidence of the elected House of Commons and is accountable to both Houses of Parliament which are responsible for scrutinising the Government and debating and passing laws.

(9) The United Kingdom Parliament has devolved responsibility to the Scottish Parliament, the Welsh Parliament (Senedd Cymru), and the Northern Ireland Assembly for legislating on domestic matters in Scotland, Wales and Northern Ireland which the United Kingdom Parliament has not reserved to itself. While data protection is a reserved matter, i.e. the same legislation applies across the country, other areas of policy relevant to this Decision are devolved. For instance, the criminal justice systems, including policing, of Scotland and Northern Ireland are devolved to the Scottish Parliament and Northern Ireland Assembly, respectively. The United Kingdom does not have a codified constitution in the sense of an entrenched constitutive document. Constitutional principles have emerged over time, drawn from case law and convention in particular. The constitutional value of certain statutes, such as Magna Carta, the Bill of Rights 1689 and the Human Rights Act 1998 has been recognised by courts. The fundamental rights of individuals have been developed, as part of the constitution, through common law, those statutes, and international treaties, in particular the European Convention on Human Rights which the United Kingdom ratified in 1951. The United Kingdom also ratified the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108) in 1987 (10).

(10) The Human Rights Act 1998 incorporates the rights contained in the European Convention on Human Rights into the law of the United Kingdom. The Human Rights Act grants any individual the fundamental rights and freedoms provided in Articles 2 to 12 and 14 of the European Convention on Human Rights, Articles 1, 2 and 3 of its First Protocol and Article 1 of its Thirteenth Protocol, as read in conjunction with Articles 16, 17 and 18 of that Convention. This includes the right to respect for private and family life (and the right to data protection as part of that right) and the right to a fair trial (11). In particular, pursuant to Article 8 of that Convention, a public authority may only interfere with the right to privacy in accordance with the law, where necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

(11) In accordance with the Human Rights Act 1998, any action of public authorities must be compatible with a Convention Right (12). In addition, primary and subordinate legislation must be read and given effect in a way that is compatible with the Convention rights (13).

2.2. The data protection framework of the United Kingdom

(12) The United Kingdom withdrew from the European Union on 31 January 2020. On the basis of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (14), Union law continued to apply in the United Kingdom during the transition period until 31 December 2020. Prior to the withdrawal and during the transition period, the legislative framework on the protection of personal data in the United Kingdom consisted of the relevant EU legislation (in particular Regulation (EU) 2016/679 and Directive (EU) 2016/680 of the European Parliament and of the Council (15)) and national legislation, in particular the Data Protection Act 2018 (DPA 2018) (16) which provided national rules, where allowed by Regulation (EU) 2016/679, specifying and restricting the application of the rules of Regulation (EU) 2016/679 and transposed Directive (EU) 2016/680.

(13) To prepare for withdrawal from the European Union, the United Kingdom Government enacted the European Union (Withdrawal) Act 2018 (17), which incorporates directly applicable Union legislation into the law of the United Kingdom (18). This so-called “retained EU law” includes Regulation (EU) 2016/679 in its entirety (including its recitals) (19). In accordance with that act, the unmodified retained EU law must be interpreted by the courts of the United Kingdom in accordance with the relevant case law of the European Court of Justice and general principles of Union law as they have effect immediately before the end of the transition period (called “retained EU case law” and “retained general principles of EU law” respectively) (20).

(14) Under the European Union (Withdrawal) Act 2018, the ministers of the United Kingdom have the power to introduce secondary legislation, via statutory instruments, to make the necessary modifications to retained European Union law consequential to the United Kingdom’s withdrawal from the European Union. They exercised that power by adopting the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (DPPEC Regulations) (21). The DPPEC Regulations amend Regulation (EU) 2016/679 as brought into United Kingdom law through the European Union (Withdrawal) Act 2018, the DPA 2018, and other data protection legislation to fit the domestic context (22).

(15) Consequently, the legal framework on the protection of personal data in the United Kingdom after the end of the transition period consists of: — The UK GDPR, as incorporated into the law of the United Kingdom under the European Union (Withdrawal) Act 2018 and amended by the DPPEC Regulations (23), and — the DPA 2018 (24), as amended by the DPPEC Regulations.

(16) As the UK GDPR is based on EU legislation, the data protection rules in the United Kingdom in many aspects closely mirror the corresponding rules applicable within the European Union.

(17) In addition to the powers afforded to the Secretary of State by the European Union (Withdrawal) Act 2018, several provisions of the DPA 2018 give powers to the Secretary of State to adopt secondary legislation to amend certain provisions of the Act or provide supplementary and additional rules (25). The Secretary of State has so far only exercised the power under Section 137 of the DPA 2018 to adopt the Data Protection (Charges and Information) (Amendment) Regulations 2019, which set out the circumstances in which data controllers are required to pay an annual charge to the UK’s independent data protection authority, the Information Commissioner.

(18) Finally, further guidance on the data protection legislation of the United Kingdom is provided in the codes of practice and other guidance adopted by the Information Commissioner. Although not formally legally binding, this guidance carries interpretative weight and demonstrates how the data protection legislation applies and is enforced by the Commissioner in practice. In particular, Sections 121 to 125 of the DPA 2018 require the Commissioner to prepare codes of practice on data-sharing, direct marketing, age-appropriate design and data protection and journalism.

(19) In its structure and main components, the UK legal framework applying to data transferred under this Decision is thus very similar to the one applying in the European Union. This includes the fact that such framework does not only rely on obligations laid down in domestic law, that have been shaped by EU law, but also on obligations enshrined in international law, in particular through the United Kingdom’s adherence to the ECHR and Convention 108, as well as its submission to the jurisdiction of the European Court of Human Rights. These obligations arising from legally binding international instruments, concerning notably the protection of personal data, are therefore a particular important element of the legal framework assessed in this Decision.

2.3. Material and territorial scope

(20) Similarly to Regulation (EU) 2016/679, the UK GDPR applies to the processing of personal data wholly or partly by automated means, or to other processing, if the personal data forms part of a filing system (26). The definitions of “personal data”, of “data subject” and of “processing” of the UK GDPR are identical to those of Regulation (EU) 2016/679 (27). In addition, the UK GDPR applies to the processing of manual unstructured personal data (28) held by certain United Kingdom public authorities (29), although UK GDPR principles and rights that are not relevant to such personal data are disapplied by Sections 24 and 25 of the DPA 2018. Similarly to what is provided under Regulation (EU) 2016/679, the UK GDPR does not apply to the processing of personal data by an individual in the course of a purely personal or household activity (30).

(21) The UK GDPR extends its scope also to the processing in the course of an activity which, immediately before the end of the transition period, fell outside the scope of European Union law (e.g. national security) (31), or was within the scope of Chapter 2 of Title 5 of the Treaty on European Union (Common Foreign and Security Policy activities) (32).As in the European Union system, the UK GDPR does not apply to the processing of personal data by a competent authority for purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security (so called “law enforcement purposes”) – such processing is instead governed by Part 3 of the DPA 2018, as it is the case for Directive (EU) 2016/680 under European Union law – or the processing of personal data by intelligence services (the Security Service, the Secret Intelligence Service and the Government Communications Headquarters) which is covered by Part 4 of the DPA 2018 (33).

(22) The territorial scope of the UK GDPR is described in Article 3 of the UK GDPR (34) and includes the processing of personal data (regardless of where it takes place) in the context of the activities of an establishment of a controller or a processor in the United Kingdom as well as to the processing of personal data of data subjects who are in the United Kingdom, where the processing activities are related to the offering of goods or services to such data subjects or the monitoring of their behaviour (35). This reflects the approach taken in Article 3 of Regulation (EU) 2016/679.

2.4. Definitions of personal data and concepts of controller and processor

(23) The definitions of personal data, processing, controller, processor, as well as the definition of pseudonymisation, laid down in Regulation (EU) 2016/679 have been retained without material modifications in the UK GDPR (36). Moreover, special categories of data are defined in Article 9(1) of the UK GDPR in the same way as under Regulation (EU) 2016/679 (“revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation”). Section 205 of the DPA 2018 provides the definition of “biometric data” (37), “data concerning health” (38) and “genetic data” (39).

2.5. Safeguards, rights and obligations

2.5.1. Lawfulness and fairness of processing

(24) Personal data should be processed lawfully and fairly.

(25) The principles of lawfulness, fairness and transparency and the grounds for lawful processing are guaranteed in the law of the United Kingdom through Articles 5(1)(a) and 6(1) of the UK GDPR, which are identical to the respective provisions in Regulation (EU) 2016/679 (40). Section 8 of the DPA 2018 complements Article 6(1)(e) by providing that the processing of personal data under Article 6(1)(e) of the UK GDPR (necessary for the performance of a task carried out in the public interest, or in the exercise of the controller’s official authority), includes processing of personal data that is necessary for the administration of justice, the exercise of a function of either House of Parliament, the exercise of a function conferred on a person by an enactment or rule of law, the exercise of a function of the Crown, a Minister of the Crown or a government department, or an activity that supports or promotes democratic engagement.

(26) With respect to consent (one of the grounds for lawful processing), the UK GDPR also retains the conditions provided for in the Article 7 of Regulation (EU) 2016/679 unmodified, that is to say the controller must be able to demonstrate that the data subject has consented, a written request for consent must be presented using clear and plain language, the data subject must have the right to withdraw consent at any time, and when assessing whether consent is freely given, it should be taken into account whether the performance of a contract is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. Moreover, pursuant to Article 8 of the UK GDPR, in the context of the provision of information society services a child’s consent is lawful only when the child is at least 13 years old. This falls within the age bracket set in Article 8 of Regulation (EU) 2016/679.

2.5.2. Processing of special categories of personal data

(27) Specific safeguards should exist where “special categories” of data are being processed.

(28) The UK GDPR and the DPA 2018 contain specific rules as regards the processing of special categories of personal data, which are defined in Article 9(1) of the UK GDPR in the same way as under Regulation (EU) 2016/679 (see recital (23) above). According to Article 9 of the UK GDPR, the processing of special categories of data is in principle prohibited, unless a specific exception applies.

(29) These exceptions (listed in Article 9(2) and (3) of the UK GDPR) do not make any changes of substance to those in Article 9(2) and (3) of Regulation (EU) 2016/679. Unless the data subject has given its explicit consent to the processing of those personal data, the processing of special categories of personal data is only permitted in specific and limited circumstances. In most instances, processing of sensitive data must be necessary for a specific purpose defined in the relevant provision (see Article 9(2)(b), (c), (f), (g), (h), (i) and (j)).

(30) Moreover, where an exception under Article 9(2) of the UK GDPR requires an authorisation by law or refers to the public interest, Section 10 of the DPA 2018 together with Schedule 1 to the DPA 2018 further specify the conditions that must be met for the exceptions to be relied upon. For example, in the case of processing of sensitive data for protecting “public health” (Article 9(2)(i) of the UK GDPR), paragraph 3(b) of Part 1 of Schedule 1 requires that, in addition to the necessity test, such processing is carried out “by or under the responsibility of a health professional” or “by another person who owes a duty of confidentiality under an enactment or rule of law”, including under the well-established common law duty of confidentiality.

(31) Where sensitive data is processed for reasons of substantial public interest (Article 9(2)(g) of the UK GDPR), Part 2 of Schedule 1 to the DPA 2018 provides an exhaustive list of purposes that can be considered as of substantial public interest, and, for each of these purposes, sets out specific additional conditions. For instance, promoting racial and ethnic diversity at senior levels of organisations is recognised as a substantial public interest. Processing of sensitive data for this specific purpose is subject to detailed requirements, including that the processing is carried out as part of a process of identifying suitable individuals to hold senior positions, is necessary to promote racial and ethnic diversity and is not likely to cause substantial damage or substantial distress to the data subject.

(32) Section 11(1) of the DPA 2018 sets out conditions for personal data to be processed in the circumstances described in Article 9(3) of the UK GDPR relating to the obligation of secrecy. This includes circumstances in which it is carried out by or under the responsibility of a health professional or a social work professional, or by another person who in the circumstances owes a duty of confidentiality under an enactment or rule of law.

(33) In addition, many of the exceptions listed in Article 9(2) of the UK GDPR require suitable and specific safeguards in order to be used. Depending on the nature of the processing and the level of risk for the rights and freedoms of data subjects, the conditions for processing provided for in Schedule 1 to the DPA 2018 establish different safeguards. Schedule 1 sets out the conditions for each processing situation in turn.

(34) In some cases, the DPA 2018 regulates and limits the type of sensitive data that may be processed for a particular legal basis to be complied with. For example, paragraph 8 of Schedule 1 authorises the processing of sensitive data for the purpose of the promotion of equality of opportunity or treatment. This processing condition can only be used if the data reveals racial or ethnic origin, religious or philosophical beliefs, sexual orientation, or if it is health data.

(35) In some cases, the DPA 2018 limits the type of controller that may use the processing condition. For example, paragraph 23 of Schedule 1 provides for processing of sensitive data in relation to elected representatives’ responses to the public. This processing condition can only be used if the controller is the elected representative or is acting under their authority.

(36) In some other cases, the DPA 2018 sets limits on the categories of data subject for the processing condition to be used. For example, paragraph 21 of Schedule 1 regulates the processing of sensitive data for occupational pension schemes. This condition can only be used if the data subject in question is a sibling, parent, grandparent, or great-grandparent of the scheme member.

(37) In addition, when relying on the exceptions in Article 9(2) of the UK GDPR that are further specified in Section 10 of the DPA 2018 together with Schedule 1 to the DPA 2018, the controller in most instances is required to draft an “Appropriate Policy Document”. It must outline the controller’s procedures for securing compliance with the principles in Article 5 of the UK GDPR. It must also set out policies for retention and erasure, with an indication of the likely storage period. Controllers must review and update this document as appropriate. The controller must keep the policy document for six months after processing is finished and must make it available to the Information Commissioner on request (41).

(38) Pursuant to paragraph 41 of Schedule 1 to the DPA 2018, the Policy Document must always be accompanied by an augmented record of processing. This record must track the commitments included in the Policy Document, i.e. whether data is being erased or retained in accordance with the policies. If the policies have not been followed, the log must record the reasons. The record must also describe how the processing satisfies Article 6 of the UK GDPR (lawfulness of processing) and the specific condition in Schedule 1 to the DPA 2018 relied on.

(39) Finally, like Regulation (EU) 2016/679, the UK GDPR also provides general safeguards for certain processing operations of special categories of data. Article 35 of the UK GDPR requires a data protection impact assessment if special categories of data are processed on a large scale. Pursuant to Article 37 of the UK GDPR, a controller or processor must designate a data protection officer where its core activities consist of processing special categories of data on a large scale.

(40) With respect to personal data relating to criminal convictions and offences, Article 10 of the UK GDPR is identical to Article 10 of Regulation (EU) 2016/679. It allows the processing of personal data relating to criminal convictions and offences only under the control of official authority or when the processing is authorised by domestic law providing for appropriate safeguards for the rights and freedoms of data subjects.

(41) Where the processing of data relating to criminal convictions and offences is not carried out under the control of official authority, Section 10(5) of the DPA 2018 provides that such processing can take place only for the specific purposes/ in the specific situations set out in Parts 1, 2 and 3 of Schedule 1 to the DPA 2018 and is subject to the specific requirements that are set out for each of these purposes/situations. For example, criminal convictions data can be processed by not-for-profit bodies if the processing is carried out (a) in the course of its legitimate activities with appropriate safeguards by a foundation, association or other not-for-profit body with a political, philosophical, religious or trade union aim, and (b) on condition that (i) the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes, and (ii) the personal data is not disclosed outside that body without the consent of the data subjects.

(42) Moreover, Part 3 of Schedule 1 to the DPA 2018 sets out further circumstances in which criminal convictions data may be used which correspond to the legal grounds for processing of sensitive data in Article 9(2) of Regulation (EU) 2016/679 and the UK GDPR (e.g. consent of the data subject, vital interests of an individual if the data subject is legally or physically unable to give consent, if data has already manifestly been made public by the data subject, if processing is necessary for the establishment, exercise or defence of a legal claim etc.).

2.5.3. Purpose limitation, accuracy, data minimisation, storage limitation and data security

(43) Personal data should be processed for a specific purpose and subsequently used only insofar as this is not incompatible with the purpose of processing.

(44) This principle is provided in Article 5(1)(b) of Regulation (EU) 2016/679 and has been retained without changes in Article 5(1)(b) of the UK GDPR. The conditions on further compatible processing pursuant to Article 6(4) of Regulation (EU) 2016/679 have also been retained with no material modifications in Article 6(4)(a) - (e) of UK GDPR.

(45) Moreover, data should be accurate and, where necessary, kept up to date. It should also be adequate, relevant and not excessive in relation to the purposes for which it is processed, and in principle be kept for no longer than is necessary for the purposes for which the personal data is processed.

(46) These principles of data minimisation, accuracy and storage limitation are set out in Article 5(1)(c) to (e) of Regulation (EU) 2016/679 and are retained without modifications in Article 5(1)(c) to (e) in the UK GDPR.

(47) Personal data should also be processed in a manner that ensures their security, including protection against unauthorized or unlawful processing and against accidental loss, destruction or damage. To that end, business operators should take appropriate technical or organisational measures to protect personal data from possible threats. These measures should be assessed taking into consideration the state of the art and related costs.

(48) Data security is enshrined in the law of the United Kingdom through the principle of integrity and confidentiality in Article 5(1)(f) of the UK GDPR and in Article 32 of the UK GDPR on security of processing. Those provisions are identical to the respective provisions of Regulation (EU) 2016/679. Moreover, under the same conditions as those set out in Articles 33 and 34 of Regulation (EU) 2016/679, the UK GDPR requires the notification of a personal data breach to the supervisory authority (Article 33 of the UK GDPR) and the communication of a personal data breach to the data subject (Article 34 of the UK GDPR).

2.5.4. Transparency

(49) Data subjects should be informed of the main features of the processing of their personal data.

(50) This is ensured by Articles 13 and 14 of the UK GDPR, which, in addition to a general principle of transparency, provide rules on the information to be provided to the data subject (42). The UK GDPR introduces no material modifications to these rules compared to the corresponding articles of Regulation (EU) 2016/679. However, like under Regulation (EU) 2016/679, the transparency requirements of those articles are subject to several exceptions laid down in the DPA 2018 (see recitals (55) to (72)).

2.5.5. Individual rights

(51) Data subjects should have certain rights which can be enforced against the controller or processor, in particular the right of access to data, the right to object to the processing and the right to have data rectified and erased. At the same time, such rights may be subject to restrictions, as far as these restrictions are necessary and proportionate to safeguard public security or other important objectives of general public interest.

2.5.5.1. The substantive rights

(52) The UK GDPR grants individuals the same enforceable rights as Regulation (EU) 2016/679. The provisions providing the rights of the individuals have been maintained in the UK GDPR without material changes.

(53) The rights include the right of access by the data subject (Article 15 of the UK GDPR), the right to rectification (Article 16 of the UK GDPR), the right to erasure (Article 17 of the UK GDPR), the right to restriction of processing (Article 18 of the UK GDPR), a notification obligation regarding rectification or erasure of personal data or restriction of processing (Article 19 of the UK GDPR), the right to data portability (Article 20 of the UK GDPR), and the right to object (Article 21 of the UK GDPR) (43). The latter also includes the right of a data subject to object to the processing of personal data for the purpose of direct marketing provided in paragraphs 2 and 3 of Article 21 of Regulation (EU) 2016/679. Moreover, under Section 122 of the DPA 2018, the Information Commissioner must prepare a Code of Practice in relation to the carrying out of direct marketing in accordance with the requirements of the data protection legislation (and the Privacy and Electronic Communications (EC Directive) Regulations 2003) and such other guidance to promote good practice in direct marketing that the Commissioner considers appropriate. The Information Commissioner’s Office is currently developing the direct marketing code (44).

(54) The data subject’s right not to be subject to a decision based solely on automated processing that produces legal effects concerning them, or similarly affects them significantly, as provided in Article 22 GDPR, has also been retained in UK GDPR without substantial changes. However, a new paragraph 3A has been added to reference that Section 14 of the DPA 2018 sets out safeguards for data subjects’ rights, freedoms and legitimate interests when the processing is carried out under Article 22(2)(b) of the UK GDPR. This only applies when the basis for such a decision is an authorisation or requirement under United Kingdom law, and does not apply where the decision is necessary under a contract or made with the data subject’s explicit consent. Where Section 14 of the DPA 2018 applies, the controller must, as soon as reasonably practicable, notify the data subject in writing that a decision has been taken based solely on automated processing. The data subject has a right to request that the controller - within one month of receipt of the notice - reconsider the decision, or to take a new decision that is not based solely on automated processing. The Secretary of State is empowered to adopt further safeguards as regards automated decision-making. This power has not yet been exercised.

2.5.5.2. Restrictions to individual rights and other provisions

(55) The DPA 2018 sets out several restrictions to individual rights, fitting within the framework of Article 23 of the UK GDPR. No restrictions are introduced within this framework concerning the right to object to direct marketing as provided in Article 21(2) and (3) of the UK GDPR or to the right not to be subject to automated decision making as provided in Article 22 of the UK GDPR.

(56) The restrictions are detailed in Schedules 2-4 to the DPA 2018. The United Kingdom authorities have explained that they are guided by two principles: the principle of specificity (taking a granular approach, splitting broad restrictions into multiple, more specific provisions) and the principle of conditionality (each provision is complemented by safeguards in the form of limitations or conditions to prevent abuse) (45).

(57) The restrictions described in Article 23(1) of the UK GDPR are designed to ensure they only apply in specified circumstances where necessary in a democratic society and proportionate to the legitimate aim they pursue. Furthermore, in accordance with established case law on the interpretation of restrictions, an exemption from the data protection regime can only be applied in any particular case if it is necessary and proportionate to do so (46). The test of necessity has been required to be “a strict one, requiring any interference with the subject’s rights to be proportionate to the gravity of the threat to the public interest. The exercise therefore involves a classic proportionality analysis (47).”

(58) The aims pursued by these restrictions correspond to the ones listed in Article 23 of Regulation (EU) 2016/679, except for the restrictions for national security and defence that are instead regulated by Section 26 of the DPA 2018, but are subject to the same requirements of necessity and proportionality (see recitals (63) to (66)).

(59) Some of the restrictions, for example those related to the prevention or detection of crime, to the apprehension or prosecution of offenders, and to the assessment or collection of tax or duty (48) permit restrictions to all the individual rights and transparency obligations (excluding rights under Article 21(2) and Article 22). The scope of other restrictions is limited to transparency obligations and access rights, such as the restrictions relating to legal professional privilege (49), to the right to freedom from a requirement to provide information that would lead to self-incrimination (50), and to corporate finance, notably the prevention of insider trading (51). Few of the restrictions permit a restriction to the controller’s obligation to communicate a data breach to a data subject and the principles of purpose limitation, and lawfulness, fairness and transparency of the processing (52).

(60) Some of the restrictions apply automatically “in full” to a certain type of processing of personal data (for example, the application of transparency obligations and individual rights is excluded when personal data is processed for the purposes of assessing a person’s suitability for judicial office or personal data is processed by a court, tribunal, or individual, acting in a judicial capacity).

(61) However, in the majority of cases, the relevant paragraph in Schedule 2 to the DPA 2018 specifies that the restriction applies only when (and to the extent) that the application of the provisions “would be likely to prejudice” the legitimate aim pursued by that restriction: for example, the listed provisions of the UK GDPR do not apply to personal data processed for the prevention or detection of crime, the apprehension or prosecution of offenders, or the assessment or collection of a tax or duty “to the extent that the application of those provisions would be likely to prejudice” any of these matters (53).

(62) The “would be likely to prejudice” standard has been consistently interpreted by UK courts to mean “a very significant and weighty chance of prejudice to the identified public interests” (54). A restriction subject to the prejudice test can therefore only be invoked if and to the extent that there is a very significant and weighty chance that the granting of a certain right would prejudice the public interest at stake. The controller is responsible for assessing on case-by-case basis whether these conditions are fulfilled (55).

(63) In addition to the restrictions contained in Schedule 2 to the DPA 2018, Section 26 of the DPA 2018 provides an exemption which may be applied to certain provisions of the UK GDPR and of the DPA 2018 if that exemption is required for the purpose of safeguarding national security or for defence purposes. This exemption applies to the data protection principles (except the principle of lawfulness), the transparency obligations, the rights of the data subject, the obligation to notify a data breach, rules on international transfers, some of the duties and powers of the Information Commissioner, and the rules on remedies, liabilities and penalties, except for the provision on the general conditions for imposing administrative fines set out in Article 83 of the UK GDPR and the provision on penalties in Article 84 of the UK GDPR. Moreover Section 28 of the DPA 2018 modifies the application of Article 9(1) to enable the processing of special categories of data in Article 9(1) of the UK GDPR to the extent that the processing is carried out for safeguarding national security or for defence purposes, and with appropriate safeguards for the rights and freedoms of data subjects (56).

(64) The exemption can only be applied to the extent that it is required to safeguard national security or defence. As it is also the case for the other exemptions provided for by the DPA 2018, it must be considered and invoked by the controller on a case-by-case basis. Moreover, any application of the exemption must be in compliance with human right standards (underpinned by the Human Rights Act 1998), according to which any interference with privacy rights should be necessary and proportionate in a democratic society (57).

(65) This interpretation of the exemption is confirmed by the ICO that has issued detailed guidance on the application of the national security and defence exemption, making clear that it must be considered and applied by the controller on a case by case basis (58). In particular, the guidance stresses that “[t]his is not a blanket exemption” and that, in order to invoke it, “it is not enough that the data is processed for national security purposes”. By contrast, the controller relying on it must “show that there is a real possibility of an adverse effect on national security” and, when necessary, the controller is expected to “provide [the ICO] with evidence about why [it] used this exemption”. The guidance contains a checklist and a series of examples to further clarify the conditions under which this exemption can be invoked.

(66) The fact that the data is processed for national security or defence purposes is therefore not on its own sufficient for the exemption to be applied. A controller must consider the actual consequences to national security if it had to comply with the particular data protection provision. The exemption can only be applied to those specific provisions which have been identified as posing the risk and must be applied as restrictively as possible (59).

(67) This approach has been confirmed by the Information Tribunal (60). In the case of Baker v Secretary of State for the Home Department (“Baker v Secretary of State”), it determined that it was unlawful to apply the national security exemption as a blanket exemption to access requests received by the intelligence services. Instead, the exemption had to be applied on a case-by-case basis, by looking at each request on its merit and in view of the right of individuals to respect for their private lives (61).

2.5.6. Restrictions for personal data processed for journalistic, artistic, academic and literary purposes as well as archiving and research

(68) Article 85(2) of the UK GDPR allows for provision to be made for personal data processed for journalistic, artistic, academic and literary purposes to be exempt from several provisions of the UK GDPR. Part 5 of Schedule 2 to the DPA 2018 sets out the exemptions for processing for these purposes. It provides for exemptions from the data protection principles (except the principle of integrity and confidentiality), the legal grounds for processing (incl. special categories of data and criminal convictions etc. data), the conditions for consent, the transparency obligations, the rights of the data subjects, the obligation to notify data breaches, and the requirement to consult the Information Commissioner prior to high risk processing, and the rules on international transfers (62). In this regard, the UK GDPR does not depart in a substantive manner from Regulation (EU) 2016/679, which in its Article 85 also provides for the possibility to exempt processing carried out for journalistic purposes or the purposes of academic, artistic or literary expression from a number of requirements of Regulation (EU) 2016/679. The provisions of the DPA 2018, notably Schedule 2, Part 5, are compatible with the UK GDPR.

(69) The core balancing exercise to be carried out under Article 85 of the UK GDPR relates to whether an exemption to the data protection rules mentioned in recital (68) is “necessary to reconcile the right to the protection of personal data with the freedom of expression and information” (63). According to Schedule 2, paragraphs 26(2) and (3) to the DPA 2018, the United Kingdom applies a “reasonable belief” test in order for this balance to be struck. For an exemption to be justified, the controller must reasonably believe (i) that publication is in the public interest; and (ii) that the application of the relevant GDPR provision would be incompatible with journalistic, academic, artistic or literary purposes. As confirmed by case law (64), the “reasonable belief” test has both a subjective and an objective component: it is insufficient for the controller to demonstrate that he himself believed compliance was incompatible. His belief must be reasonable, i.e. it could be believed by a reasonable person, knowing the relevant facts. The controller must therefore exercise due diligence when forming his belief in order to be able to demonstrate reasonableness. According to the explanations provided by the United Kingdom authorities, the “reasonable belief” test must be carried out on an exemption-by-exemption basis (65). If the conditions are met, the exemption is considered necessary and proportionate under United Kingdom law.

(70) According to Section 124 of the DPA 2018, the ICO is to prepare a Code of Practice on Data Protection and Journalism. Work on this Code is ongoing. Guidance on the matter under the Data Protection Act 1998 has been issued which notably stresses that, to rely on this exemption, it is insufficient to merely state that compliance would be an inconvenience for journalist activities, but there must be a clear argument that the provision in question presents an obstacle to responsible journalism (66). Guidance on the application of the public interest test and the balancing of public interest against an individual’s interest in privacy has also been published by the United Kingdom’s telecommunications regulator OFCOM and the BBC in its editorial guidelines (67). The guidelines notably provide examples of information that can be considered in the public interest, and explain the need to be able to demonstrate that the public interest outweighs privacy rights in the particular circumstances of the case.

(71) Similarly to what is provided in Article 89 GDPR, personal data processed for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes can also be exempted from a number of listed provisions of the UK GDPR (68). As regards research and statistics, exemptions are possible to the provisions of the UK GDPR related to confirmation of processing and access to data and safeguards for third country transfers; right to rectification; restriction of processing and objection to processing. As regards archiving in the public interest, exemptions are also possible to the notification obligation regarding rectification or erasure of personal data or restriction of processing and to the right to data portability.

(72) According to paragraphs 27(1) and 28(1) of Schedule 2 to the DPA 2018, the exemptions to the listed provisions of the UK GDPR are possible where the application of the provisions would “prevent or seriously impair the achievement” of the purposes in question (69).

(73) Given their relevance for an effective exercise of individual rights, any relevant development regarding the interpretation and application in practice of the above-mentioned exemptions (in addition to the one relating to the maintenance of effective immigration control, as explained in recital (6)), including any further development of the case law and of ICO guidance and enforcement actions, will be duly taken into account in the context of the continuous monitoring of this Decision (70).

2.5.7. Restrictions on onward transfers

(74) The level of protection afforded to personal data transferred from the European Union to controllers or processors in the United Kingdom must not be undermined by the further transfer of such data to recipients in a third country. Such “onward transfers”, which from the perspective of the United Kingdom controller or processor constitute international transfers from the United Kingdom, should be permitted only where the further recipient outside the United Kingdom is itself subject to rules ensuring a similar level of protection to that guaranteed within the United Kingdom legal order. For this reason, the application of the rules of the UK GDPR and the DPA 2018 on international transfers of personal data is an important factor to ensure the continuity of protection in the case of personal data transferred from the European Union to the United Kingdom under this Decision.

(75) The regime on international transfers of personal data from the United Kingdom is set out in Articles 44-49 of the UK GDPR, supplemented by the DPA 2018, and is in substance identical to the rules set out in Chapter V of Regulation (EU) 2016/679 (71). Transfers of personal data to a third country or international organisation can only take place on the basis of adequacy regulations (the UK equivalent to an adequacy decision under Regulation (EU) 2016/679), or in the absence of adequacy regulations, where the controller or processor has provided appropriate safeguards in accordance with Article 46 of the UK GDPR. In the absence of adequacy regulations or appropriate safeguards, a transfer can only take place based on derogations set out in Article 49 of the UK GDPR.

(76) The adequacy regulations made by the Secretary of State can stipulate that a third country (or a territory or a sector within a third country), an international organisation, or a description (72) of such a country, territory, sector, or organisation ensures an adequate level of protection of personal data. When assessing the adequacy of the level of protection, the Secretary of State must take into account the exact same elements that the Commission is required to assess under Article 45(2)(a)-(c) of Regulation (EU) 2016/679, interpreted together with recital 104 of Regulation (EU) 2016/679 and the retained EU case law. This means that, when assessing the adequate level of protection of a third country, the relevant standard will be whether that third country in question ensures a level of protection “essentially equivalent” to that guaranteed within the United Kingdom.

(77) As for the procedure, adequacy regulations are subject to the “general” procedural requirements provided for in Section 182 of the DPA 2018. Under this procedure, the Secretary of State must consult the Information Commissioner when proposing to adopt UK adequacy regulations (73). Once adopted by the Secretary of State, those regulations are laid before Parliament and subject to the “negative resolution” procedure under which both Houses of Parliament can scrutinise the regulations and have the ability to pass a motion annulling the regulations within a 40 day period (74).

(78) According to Section 17B(1) of the DPA 2018, the adequacy regulations must be reviewed at intervals of not more than four years and the Secretary of State must, on an ongoing basis, monitor developments in third countries and international organisations that could affect decisions to make adequacy regulations, or to amend or revoke such regulations. Where the Secretary of State becomes aware that a country or organisation specified no longer ensures an adequate level of protection of personal data, he must, to the extent necessary, amend or revoke the regulations and enter into consultations with the third country or international organisation concerned to remedy the lack of an adequate level of protection. These procedural aspects also mirror the corresponding requirements of Regulation (EU) 2016/679.

(79) In the absence of adequacy regulations, international transfers can take place where the controller or processor has provided appropriate safeguards in accordance with Article 46 of the UK GDPR. These safeguards are similar to those under Article 46 of Regulation (EU) 2016/679. They include legally binding and enforceable instruments between public authorities or bodies, binding corporate rules (75), standard data protection clauses, approved codes of conduct, approved certification mechanisms, and with authorisation from the Information Commissioner, contractual clauses between controllers (or processors) or administrative arrangements between public authorities. However, the rules have been modified, from a procedural point of view, to work within the United Kingdom framework, in particular the standard data protection clauses can be adopted by the Secretary of State (Section 17C) or the Information Commissioner (Section 119A) in accordance with the DPA 2018.

(80) In absence of an adequacy decision or appropriate safeguards, a transfer can only take place based on derogations set out in Article 49 of the UK GDPR (76). The UK GDPR introduces no material changes to the derogations, compared to the corresponding rules of Regulation (EU) 2016/679. Under the UK GDPR, as under Regulation (EU) 2016/679, certain derogations can only be relied on if the transfer is occasional (77). Moreover, the ICO in its guidance on international transfers, clarifies that: “You should only use these as true ‘exceptions’ from the general rule that you should not make a restricted transfer unless it is covered by an adequacy decision or there are appropriate safeguards in place” (78). With respect to transfers that are necessary for important reasons of public interest (Article 49(1)(d)), the Secretary of State can make regulations to specify circumstances in which a transfer of personal data to a third country or international organisation is not necessary for important reasons of public interest. Furthermore, the Secretary of State can by regulations restrict the transfer of a category of personal data to a third country or international organisation where the transfer cannot take place based on adequacy regulations, and the Secretary of State considers the restriction to be necessary for important reasons of public interest. No such regulations have been adopted so far.

(81) This framework for international transfers has become applicable at the end of the transition period (79). However, paragraph 4 of Schedule 21 to the DPA 2018 (introduced by the DPPEC Regulations) provide that as of the end of the transition period, certain transfers of personal data are treated as if they are based on adequacy regulations. These transfers include transfers to an EEA State, the territory of Gibraltar, a Union institution, body, office or agency set up by, or on the basis of the EU Treaty, and third countries which were the subject of an EU adequacy decision at the end of the transition period. Consequently, the transfers to these countries can continue as before the United Kingdom’s withdrawal from the EU. After the end of the transition period, the Secretary of State must conduct a review of these adequacy findings during a period of four years, i.e. by the end of December According to the explanation provided by the United Kingdom authorities, although the Secretary of State needs to undertake such a review by the end of December 2024, the transitional provisions do not include a “sunset” provision and the relevant transitional provisions will not automatically cease to have effect if a review is not completed by the end of December 2024.

(82) Finally, as regards the future evolution of the United Kingdom’s international transfers regime – through the adoption of new adequacy regulations, the conclusion of international agreements or the development of other transfer mechanisms – the Commission will closely monitor the situation, assess whether the different transfer mechanisms are used in a way that ensures the continuity of protection, and, if necessary, take appropriate measures to address possible adverse effects for such continuity (see recitals (278) to (287)). As the EU and the United Kingdom share similar rules on international transfers, it is expected that problematic divergence could also be avoided through cooperation, exchange of information and sharing of experience, including between the ICO and the EDPB.

2.5.8. Accountability

(83) Under the accountability principle, entities processing data are required to put in place appropriate technical and organisational measures to effectively comply with their data protection obligations and be able to demonstrate such compliance, in particular to the competent supervisory authority.

(84) The principle of accountability provided for in Regulation (EU) 2016/679 has been retained in Article 5(2) of the UK GDPR without material change and the same applies to Article 24 on the responsibility of the controller, Article 25 on data protection by design and by default and Article 30 on records of processing activities. Articles 35 and 36 on data protection impact assessment and prior consultation of supervisory authority have also been retained. Articles 37-39 of Regulation (EU) 2016/679 on the designation and the tasks of the data protection officers have been retained in the UK GDPR with no material changes. Furthermore, the provisions of Articles 40 and 42 of Regulation (EU) 2016/679 on codes of conduct and certification have been retained in the UK GDPR (80).

2.6. Oversight and enforcement

2.6.1. Independent Oversight

(85) In order to ensure that an adequate level of data protection is guaranteed in practice, an independent supervisory authority tasked with powers to monitor and enforce compliance with the data protection rules should be in place. This authority should act with complete independence and impartiality in performing its duties and exercising its powers.

(86) In the United Kingdom, the oversight and enforcement of compliance with the UK GDPR and the DPA 2018 is carried out by the Information Commissioner. The Information Commissioner is a “Corporation Sole”: a separate legal entity constituted in a single person. The Information Commissioner is supported in her work by an office. On 31 March 2020 the Information Commissioner’s Office had 768 permanent staff (81). The sponsor-department of the Information Commissioner is the Department for Digital, Culture, Media and Sport (82).

(87) The independence of the Commissioner is explicitly established in Article 52 of the UK GDPR which does not make any substantive changes to Article 52(1)-(3) GDPR. The Commissioner must act with complete independence in performing her tasks and exercising her powers in accordance with the UK GDPR, remain free from external influence, whether direct or indirect, in relation to those tasks and powers, and neither seek nor take instructions from anyone. The Commissioner must also refrain from any action incompatible with her duties and shall not, while holding office, engage in any incompatible occupation, whether gainful or not.

(88) The conditions for the appointment and removal of the Information Commissioner are set out in Schedule 12 to the DPA 2018. The Information Commissioner is appointed by Her Majesty on a recommendation from Government pursuant to a fair and open competition. The candidate must have the appropriate qualifications, skills and competence. In accordance with the Governance Code on Public Appointments (83), a list of appointable candidates is made by an advisory assessment panel. Before the Secretary of State at the Department for Digital, Culture, Media and Sport finalises his or her decision, the relevant Select Committee of Parliament must carry out a pre-appointment scrutiny. The position of the Committee is made public (84).

(89) The Information Commissioner holds office for a term of up to seven years. A person cannot be appointed as the Information Commissioner more than once. The Information Commissioner can be removed from office by Her Majesty following an Address by both Houses of Parliament (85). No request for dismissal of the Information Commissioner can be presented to either House of Parliament unless a Minister has presented a report stating that he or she is satisfied that the Information Commissioner is guilty of serious misconduct and/or the Commissioner no longer fulfils the conditions required for the performance of the Commissioner’s functions (86).

(90) The funding of the Information Commissioner comes from three sources: (i) data protection charges paid by controllers, which are set by Secretary of State’s regulations (87) (the Data Protection (Charges and Information) Regulations 2018), and amount to 85% - 90% of the Office’s annual budget (88); (ii) grant in aid paid by the Government to the Information Commissioner. Grant in aid is mainly used to finance the operating costs of the Information Commissioner as regards non-data protection related tasks (89); and (iii) fees charged for services (90). At present, no such fees are charged.

(91) The general functions of the Information Commissioner in relation to the processing of personal data that the UK GDPR applies to, are laid down in Article 57 of the UK GDPR, mirroring closely the corresponding rules of Regulation (EU) 2016/679. Its functions include monitoring and enforcement of the UK GDPR, promoting public awareness, handling complaints lodged by the data subjects, conducting investigations etc.. In addition, Section 115 of the DPA 2018 sets out other general functions of the Commissioner, which include a duty to advise Parliament, the government and other institutions and bodies on legislative and administrative measures relating to the protection of individuals’ rights and freedoms with regard to the processing of personal data, and a power to issue, on the Commissioner’s own initiative or on request, opinions to Parliament, the government or other institutions and bodies as well as to the public on any issue related to the protection of personal data. To maintain the independence of the judiciary, the Information Commissioner is not authorised to exercise her functions in relation to the processing of personal data by an individual acting in a judicial capacity, or a court or tribunal acting in its judicial capacity. However, oversight on the judiciary is ensured by specialised bodies (see recitals (99) to (103).

2.6.2. Enforcement, including sanctions

(92) The powers of the Information Commissioner are set out in Article 58 of the UK GDPR, which introduces no material changes to the corresponding article of Regulation (EU) 2016/679. The DPA 2018 sets out supplementary rules on how these powers can be exercised. In particular, the Commissioner has powers to: (a) order the controller and the processor (and in certain circumstances any other person) to provide necessary information by giving an information notice (“information notice”) (91); (b) carry out investigations and audits by giving an assessment notice, which may require the controller or processor to permit the Commissioner to enter specified premises, inspect or examine documents or equipment, interview people processing personal data on behalf of the controller etc. (“assessment notice”) (92); (c) obtain otherwise access to documents etc. of controllers and processors and access to their premises in accordance with Section 154 of the DPA 2018 (“powers of entry and inspection”); (d) exercise corrective powers including by means of warnings and reprimands or give orders by means of an enforcement notice, which requires controllers/processors to take or refrain from taking specified steps, including ordering the controller or processor to do anything specified in Article 58(2)(c)-(g) and (j) of the UK GDPR (“enforcement notice”) (93); (e) and issue administrative fines in the form of a penalty notice (“penalty notice”) (94). The latter can be issued also in case a public authority has failed to comply with the provisions of the UK GDPR (95).

(93) The ICO’s Regulatory Action Policy sets out the circumstances under which it will issue an information, assessment, enforcement or penalty notice (96). An enforcement notice given in response to a failure by a controller or processor may only impose requirements which the Commissioner considers appropriate for the purpose of remedying the failure. Enforcement and penalty notices may be issued to a controller or processor in relation to violations of Chapter II of the UK GDPR (principles of processing), Articles 12 -22 (rights of the data subject), Articles 25-39 (obligations of controllers and processors) and Articles 44-49 (international transfers) of the UK GDPR. An enforcement notice may also be given where a controller has failed to comply with the requirement to pay a charge in regulations made under Section 137 of the DPA 2018. In addition, a monitoring body under Article 41 or a certification provider can be given an enforcement notice if they fail to comply with their obligations under the UK GDPR. A penalty notice can be also given to a person who has not complied with an information notice, an assessment notice or an enforcement notice.

(94) The penalty notice requires the person to pay to the Information Commissioner an amount specified in the notice. In determining whether to give a penalty notice to a person and determining the amount of the penalty, the Information Commissioner must have regard to the matters listed in Article 83(1) and (2) of the UK GDPR, which are identical to the corresponding rules of Regulation (EU) 2016/679 (97). Under Article 83(4) and (5) the maximum amounts of the administrative fines in case of a failure to comply with the obligations referred to in those provisions are £8 700 000 or £17 500 000 respectively. In the case of an undertaking, the Information Commissioner can also impose fines as a percentage of worldwide annual turnover, if higher. As in the equivalent provisions of Regulation (EU) 2016/679, these amounts are set at 2% and 4% in Articles 83(4) and (5) respectively. In case of a failure to comply with an information notice, an assessment notice or an enforcement notice, the maximum amount of the penalty that may be imposed by a penalty notice is the higher of £17 500 000 or, in the case of an undertaking, 4% worldwide annual turnover.

(95) The UK GDPR together with the DPA 2018 have also strengthened other powers of the Information Commissioner. For example, the Commissioner can now conduct compulsory audits in relation to all controllers and processors through the use of assessment notices, whereas under the previous legislation, the Data Protection Act 1998, the Commissioner only had this power in respect of central government and health organisations, others having to agree to an audit.

(96) Since the introduction of Regulation (EU) 2016/679, the ICO handles about 40 000 complaints from data subjects per year (98) and, in addition, carries out about 2 000ex officio investigations (99). A majority of complaints are related to the rights of access to and disclosure of data. Following her investigations, the Commissioner is taking enforcement measures across a broad range of sectors. More specifically, according to the Information Commissioner’s latest annual report (2019-2020) (100), the Commissioner issued 54 information notices, 8 assessment notices, 7 enforcement notices, 4 cautions, 8 prosecutions and 15 fines during the reporting period (101).

(97) This includes several significant monetary penalties imposed under Regulation (EU) 2016/679 and the DPA 2018. In particular, the Information Commissioner in October 2020 fined a British airline company £20 million for a data breach affecting more than 400 000 customers. At the end of October 2020, an international hotel chain was fined £18.4 million for failing to keep millions of customers’ personal data secure and in November 2020 a British service provider selling event tickets online was fined £1.25 million for failing to protect customers' payment details (102).

(98) In addition to the enforcement powers of the Information Commissioner described in recital (92), certain violations of the data protection legislation constitute offences and may therefore be subject to criminal sanctions (Section 196 of the DPA 2018). This applies, for example, to knowingly or recklessly obtaining or disclosing personal data without the consent of the controller, procuring the disclosure of personal data to another person without the consent of the controller (103), re-identifying information that is de-identified personal data without the consent of the controller responsible for de-identifying the personal data (104), intentionally obstructing the Commissioner’s power to exercise her powers in relation to the inspection of personal data in accordance with international obligations (105), making false statements in response to an information notice, or destroying information in connection to information and assessment notices (106).

2.6.3. Oversight over the judiciary

(99) Oversight of the processing of personal data by the courts and judiciary is twofold. Where a judicial office holder or a court is not acting in a judicial capacity, oversight is provided by the ICO. Where the controller is operating in a judicial capacity, the ICO cannot exercise its oversight functions (107) and the oversight is carried out by special bodies. This reflects the approach taken in Regulation (EU) 2016/679 (Article 55(3)).

(100) In particular, in the second scenario, for the courts of England and Wales and the First-tier and Upper Tribunals of England and Wales, such oversight is provided by the Judicial Data Protection Panel (108). Additionally, the Lord Chief Justice and Senior President of Tribunals have issued a Privacy Notice (109) which sets out how the courts in England and Wales process personal data for a judicial function. A similar notice has been issued by the Northern Irish (110) and Scottish judiciaries (111).

(101) Moreover, in Northern Ireland, the Lord Chief Justice of Northern Ireland has appointed a High Court judge as Data Supervisory Judge (DSJ) (112). They have also issued guidance to the Northern Irish Judiciary on what to do in the event of a loss or potential loss of data and the process for dealing with any issues arising from this (113).

(102) In Scotland, the Lord President has appointed a Data Supervisory Judge to investigate any complaints on grounds of data protection. This is set out under the judicial complaints rules which mirror those established for England and Wales (114).

(103) Finally, in the Supreme Court, one of the Supreme Court Justices is nominated to oversee data protection.

2.6.4. Redress

(104) In order to ensure adequate protection and in particular the enforcement of individual rights, the data subject should be provided with effective administrative and judicial redress, including compensation for damages.

(105) First, a data subject has the right to lodge a complaint with the Information Commissioner, if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of the UK GDPR (115). The UK GDPR retains the rules in Article 77 of Regulation (EU) 2016/679 on that right without material modifications. The same applies to Article 57(1)(f) and (2) that set out the tasks of the Commissioner in relation to the handling of complaints. As described in recitals (92) to (98) above, the Information Commissioner has the power to assess the compliance of the controller and processor with the UK GDPR and DPA 2018, require them to take or refrain from taking necessary steps in case of non-compliance and to impose fines.

(106) Second, the UK GDPR and DPA 2018 provide the right to a remedy against the Information Commissioner. Pursuant to Article 78(1) of the UK GDPR, an individual has a right to an effective judicial remedy against a legally binding decision of the Commissioner concerning them. In the context of the judicial review, the judge examines the decision being challenged in the claim, and considers whether the Information Commissioner has acted lawfully. Moreover, pursuant to Article 78(2) of the UK GDPR, if the Commissioner fails to appropriately handle a complaint made by the data subject, (116) the complainant has access to judicial remedy. It can apply to a First Tier Tribunal to order the Commissioner to take appropriate steps to respond to the complaint, or to inform the complainant of progress on the complaint (117). In addition, any person who is served one of the abovementioned notices (information, assessment, enforcement or penalty notice) by the Commissioner may appeal to a First Tier Tribunal (118). If the Tribunal considers that the decision of the Commissioner is not in accordance with the law or the Information Commissioner should have exercised her discretion differently, the Tribunal must allow the appeal, or substitute another notice or decision which the Information Commissioner could have given or made.

(107) Third, individuals can obtain judicial redress against controllers and processors directly before the courts under Article 79 of the UK GDPR and Section 167 of the DPA 2018. If, on an application by a data subject, a court is satisfied that there has been an infringement of the data subject's rights under the data protection legislation, the court may order the controller in respect of the processing, or a processor acting on behalf of that controller, to take steps specified in the order or to refrain from taking steps specified in the order.

(108) Moreover, under Article 82 of the UK GDPR and Section 168 of the DPA 2018, any person who has suffered material or non-material damage as a result of an infringement of the UK GDPR has the right to receive compensation from the controller or processor for the damage suffered. The rules on the compensation and liability in Article 82(1) – (5) of the UK GDPR are identical with the corresponding rules in Regulation (EU) 2016/679. Under Section 168 of the DPA 2018, non-material damage includes also distress. Under Article 80 of the UK GDPR the data subject has also a right to mandate a representative body or organisation to lodge the complaint with the Commissioner on his or her behalf (under Article 77 of the UK GDPR) and to exercise the rights referred to in Articles 78 (right to an effective judicial remedy against the Commissioner), 79 (right to an effective judicial remedy against a controller or processor) and 82 (right to compensation and liability) of the UK GDPR on his or her behalf.

(109) Fourth, and in addition to the avenues for redress described above, any person that considers that his or her rights, including rights to privacy and data protection, have been violated by public authorities, can obtain redress before the UK courts under the Human Rights Act 1998 (119). An individual who claims that a public authority has acted (or proposes to act) in a way which is incompatible with a Convention right, and consequently unlawful under Section 6(1) of the Human Rights Act 1998, can bring proceedings against the authority in the appropriate court or tribunal, or rely on the rights concerned in any legal proceedings, when he or she is (or would be) a victim of the unlawful act.

(110) If the court finds any act of a public authority to be unlawful, it can grant such relief or remedy, or make such order, within its powers as it considers just and appropriate (120). The court can also declare a provision of primary legislation to be incompatible with a Convention right.

(111) Finally, after exhausting national remedies, an individual can obtain redress before the European Court of Human Rights for violations of the rights guaranteed under the European Convention of Human Rights.

3. ACCESS AND USE OF PERSONAL DATA TRANSFERRED FROM THE EUROPEAN UNION BY PUBLIC AUTHORITIES IN THE UNITED KINGDOM

(112) The Commission also assessed the United Kingdom’s legal framework for the collection and subsequent use of personal data transferred to business operators in the United Kingdom by United Kingdom public authorities in the public interest, in particular for criminal law enforcement and national security purposes (hereinafter referred to as “government access”). In assessing whether the conditions under which government access to data transferred to the UK under this Decision would fulfil the “essential equivalence” test pursuant to Article 45(1) of Regulation (EU) 2016/679, as interpreted by the Court of Justice of the European Union in light of the Charter of Fundamental Rights, the Commission took into account in particular the following criteria.

(113) First, any limitation to the right to the protection of personal data must be provided for by law and the legal basis which permits the interference with such a right must itself define the scope of the limitation on the exercise of the right concerned (121).

(114) Second, in order to satisfy the requirement of proportionality, according to which derogations from and limitations to the protection of personal data must apply only in so far as is strictly necessary in a democratic society to meet specific objectives of general interest equivalent to those recognized by the Union, the legislation of the third country in question which permits the interference must lay down clear and precise rules governing the scope and application of the measures in question and impose minimum safeguards so that the persons whose data has been transferred have sufficient guarantees to protect effectively their personal data against the risk of abuse (122). The legislation must, in particular, indicate in what circumstances and under which conditions a measure providing for the processing of such data may be adopted (123) as well as subject the fulfilment of such requirements to independent oversight (124).

(115) Third, that legislation must be legally binding under domestic law and these legal requirements must not only be binding on the authorities, but also enforceable before courts against the authorities of the third country in question (125). In particular, data subjects must have the possibility of bringing legal action before an independent and impartial court in order to have access to their personal data, or to obtain the rectification or erasure of such data (126).

3.1. General legal framework

(116) As an exercise of power by a public authority, government access in the United Kingdom must be carried out in full respect of the law. The United Kingdom has ratified the European Convention of Human Rights (see recital (9)) and all public authorities in the United Kingdom are required to act in compliance with the Convention (127). Article 8 of the Convention provides that any interference with privacy must be in accordance with the law, in the interests of one of the aims set out in Article 8(2), and proportionate in light of that aim. Article 8 also requires that the interference is “foreseeable”, i.e. have a clear, accessible basis in law, and that the law contains appropriate safeguards to prevent abuse.

(117) In addition, in its case law, the European Court of Human Rights has specified that any interference with the right to privacy and data protection should be subject to an effective, independent and impartial oversight system that must be provided for either by a judge or by another independent body (128) (e.g. an administrative authority or a parliamentary body).

(118) Moreover, individuals must be provided with an effective remedy, and the European Court of Human Rights has clarified that the remedy must be offered by an independent and impartial body which has adopted its own rules of procedure, consisting of members that must hold or have held high judicial office or be experienced lawyers, and that there must be no evidential burden to be overcome in order to lodge an application with it. In undertaking its examination of complaints by individuals, the independent and impartial body should have access to all relevant information, including closed materials. Finally, it should have the powers to remedy non-compliance (129).

(119) The United Kingdom also ratified the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108), and signed the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (known as Convention 108+) in 2018 (130). Article 9 of Convention 108 provides that derogations from the general data protection principles (Article 5 Quality of data), the rules governing special categories of data (Article 6 Special categories of data) and data subject rights (Article 8 Additional safeguards to the data subject) are only permissible when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences, or for protecting the data subject or the rights and freedoms of others (131).

(120) Therefore, through membership of the Council of Europe, adherence to the European Convention of Human Rights and submission to the jurisdiction of the European Court of Human Rights, the United Kingdom is subject to a number of obligations, enshrined in international law, that frame its system of government access on the basis of principles, safeguards and individual rights similar to those guaranteed under EU law and applicable to the Member States. As stressed in recital (19), continued adherence to such instruments is therefore a particularly important element of the assessment on which this Decision is based.

(121) Further, specific data protection safeguards and rights are guaranteed by the DPA 2018 when data is processed by public authorities, including by law enforcement and national security bodies.

(122) In particular, the regime for the processing of personal data in the context of criminal law enforcement is set out in Part 3 of the DPA 2018, which was enacted to transpose Directive (EU) 2016/680. Part 3 of the DPA 2018 applies to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security (132).

(123) The concept of “competent authority” is defined in Section 30 of the DPA as a person listed in Schedule 7 to the DPA 2018 as well as any other person to the extent that the person has statutory functions for any of the law enforcement purposes (133). As explained below (see recital (139)), certain competent authorities (for example the National Crime Agency) may make use, under certain conditions, of the powers provided by the Investigatory Power Act 2016 (IPA 2016). In this case, the safeguards provided by the IPA 2016 will apply in addition to those provided by Part 3 of the DPA 2018. The intelligence services (Secret Intelligence Service, Security Service and the Government Communications Headquarters) are not “competent authorities” (134) falling under Part 3 of the DPA 2018 and, therefore, the rules provided therein do not apply to any of their activities. A specific Part of the DPA 2018 (Part 4) is dedicated to the processing of personal data by intelligence services (for more details see recital (125)).

(124) Similarly to Directive (EU) 2016/680, Part 3 of the DPA 2018 sets out the principles of lawfulness and fairness (135), purpose limitation (136), data minimisation (137), accuracy (138), storage limitation (139) and security (140). The legislation imposes specific transparency obligations (141) and provides individuals with a right of access (142), rectification and deletion (143) and the right not to be subject to automated decision-making (144). The competent authorities are also required to implement data protection by design and default, to keep records of processing activities, and, for certain processing operations, to carry out data protection impact assessments and to pre-consult the Information Commissioner (145). Pursuant to Section 56 of the DPA 2018, they are required to demonstrate compliance. Moreover, they are required to put in place appropriate measures to ensure security of processing (146) and are subject to specific obligations in case of a data breach, including notification of such breaches to the Information Commissioner and data subjects (147). As is the case in Directive (EU) 2016/680, there is also a requirement for a controller (unless it is a court or other judicial authority acting in a judicial capacity) to designate a data protection officer (DPO) (148) which assists the controller in complying with its obligations as well as monitoring that compliance (149). Furthermore, the legislation imposes specific requirements for international transfers of personal data for law enforcement purposes to third countries or international organisations to ensure continuity of protection (150). At the same date as this Decision, the Commission has adopted an adequacy decision on the basis of Article 36(3) of Directive (EU) 2016/680, finding that the data protection regime applicable to processing by United Kingdom criminal law enforcement authorities ensures a level of protection essentially equivalent to the one guaranteed by Directive (EU) 2016/680.

(125) Part 4 of the DPA 2018 applies to all processing by or on behalf of the intelligence services. In particular, it sets out the main data protection principles (lawfulness, fairness and transparency (151); purpose limitation (152); data minimisation (153); accuracy (154); storage limitation (155) and security (156)), imposes conditions on the processing of special categories of data (157), provides for data subject rights (158), requires data protection by design (159) and regulates international transfers of personal data (160). The ICO has recently issued detailed guidance on the processing by intelligence agencies under Part 4 of the DPA 2018 (161).

(126) At the same time, Section 110 of the DPA 2018 provides for an exemption from specified provisions in Part 4 of the DPA 2018 (162) when such exemption is required to safeguard national security. This exemption can be relied upon on the basis of a case-by-case analysis (163). As explained by the United Kingdom authorities and confirmed by the case law, a “controller must consider the actual consequences to national security or defence if they had to comply with the particular data protection provision, and if they could reasonably comply with the usual rule without affecting national security or defence” (164). Whether or not the exemption has been used appropriately is subject to the oversight of the ICO (165).

(127) Moreover, in relation to the possibility to restrict for the protection of “national security” the application of the above specified provisions, according to Section 111 of the DPA 2018, a controller may apply for a certificate signed by a Cabinet Minister or the Attorney General certifying that a restriction of such rights is a necessary and proportionate measure to the protection of national security (166).

(128) The United Kingdom government has issued guidance to assist controllers when considering whether to apply for a national security certificate under the DPA 2018 that notably highlights that any limitation to data subjects’ rights for safeguarding national security must be proportionate and necessary (167). All national security certificates must be published on the ICO’s website (168).

(129) The certificate should be for a fixed duration of no more than five years, so to be regularly reviewed by the Executive (169). A certificate shall identify the personal data or categories of personal data subject to the exemption as well the provisions of the DPA 2018 to which the exemption applies (170).

(130) It is important to note that the national security certificates do not provide for an additional ground for restricting data protection rights for national security reasons. In other words, the controller or processor can only rely on a certificate when it has concluded it is necessary to rely on the national security exemption which, as explained above, must be applied on a case-by-case basis (171). Even if a national security certificate applies to the matter in question, the ICO can investigate whether or not reliance on the national security exemption was justified in a specific case (172).

(131) Any person directly affected by the issuing of the certificate may appeal to the Upper Tribunal (173) against the certificate (174) or, where the certificate identifies data by means of a general description, challenge the application of the certificate to specific data (175). The tribunal will review the decision to issue a certificate and decide whether there were reasonable grounds for issuing the certificate (176). It can consider a wide range of issues, including necessity, proportionality and lawfulness, having regard to the impact on the rights of data subjects and balancing the need to safeguard national security. As a result, the tribunal may determine that the certificate does not apply to specific personal data which is the subject of the appeal (177).

(132) A different set of possible restrictions concern those applying, under Schedule 11 of the DPA 2018, to certain provisions of Part 4 of the DPA 2018 (178) to safeguard other important objectives of general public interest or protected interests such as, for example, parliamentary privilege, legal professional privilege, the conduct of judicial proceedings or the combat effectiveness of the armed forces (179). The application of these provisions is either exempted for certain categories of information (“class based”), or exempted to the extent that the application of these provisions would be likely to prejudice the protected interest (“prejudice based”) (180). Prejudice-based exemptions can only be invoked as far as the application of the listed data protection provision would be likely to prejudice the specific interest in question. The use of an exemption must therefore always be justified by referring to the relevant prejudice that would be likely to occur in the individual case. Class-based exemptions can be invoked only with respect to the specific, narrowly defined category of information for which the exemption is granted. These are similar in purpose and effect to several of the exceptions to the UK GDPR (under Schedule 2 of the DPA 2018) which, in turn, reflect those provided in Article 23 GDPR.

(133) It follows from the above that limitations and conditions are in place under the applicable UK legal provisions, as also interpreted by the courts and the Information Commission, to ensure that these exemptions and restrictions remain within the boundaries of what is necessary and proportionate to protect national security.

3.2. Access and use by United Kingdom public authorities for criminal law enforcement purposes

(134) The law of the United Kingdom imposes a number of limitations on the access and use of personal data for criminal law enforcement purposes, and provides oversight and redress mechanisms in this area which are in line with the requirements referred to in recitals (113) to (115) of the present decision. The conditions under which such access can take place and the safeguards applicable to the use of these powers are assessed in detail in the following sections.

3.2.1. Legal bases and applicable limitations/safeguards

(135) Pursuant to the principle of lawfulness guaranteed under Section 35 of the DPA 2018, the processing of personal data for any of the law enforcement purposes is lawful only if it is based on law and either the data subject has given consent to the processing for that purpose (181) or the processing is necessary for the performance of a task carried out for that purpose by a competent authority.

3.2.1.1. Search warrants and production orders

(136) In the United Kingdom legal framework, the collection of personal data from business operators, including those that would be processing data transferred from the EU under the present adequacy decision, for purposes of criminal law enforcement is permissible on the basis of search warrants (182) and production orders (183).

(137) Search warrants are issued by a court, usually on the application of the investigating officer. They permit an officer to enter premises to search for material or individuals relevant to their investigation and retain anything for which a search has been authorised, including any relevant documents or material containing personal data (184). A production order, which also needs to be issued by a court, requires the person specified in it to produce or give access to material they are in possession or control of. The applicant must justify to the court why the warrant or order is necessary, as well as why it is in the public interest. There are several statutory powers that permit the issuance of search warrants and production orders. Each provision has its own set of statutory conditions which must be satisfied for a warrant (185) or a production order (186) to be issued.

(138) Production orders and search warrants may be challenged by way of judicial review (187). In terms of safeguards, all criminal law enforcement authorities falling within the scope of Part 3 of the DPA 2018), may only access personal data – which is a form of processing – in line with the principles and requirements set out in the DPA 2018 (see recitals (122) and (124) above). Therefore, a request made by any law enforcement authority should be in compliance with the principle according to which the purposes of processing must be specified, explicit and legitimate (188) and that the personal data processed by a competent authority must be relevant to that purpose and not excessive (189).

3.2.1.2. Investigatory powers for law enforcement purposes

(139) For the purpose of preventing or detecting only serious crimes (190), certain law enforcement authorities, for example the National Crime Agency or the Chief of Police (191), can use targeted investigatory powers under the IPA 2016. In this case, the safeguards provided by the IPA 2016 will apply in addition to those provided by Part 3 of the DPA 2018. The specific investigatory powers that those law enforcement authorities can rely upon are: targeted interceptions (Part 2 of the IPA 2016), acquisition of communications data (Part 3 of the IPA 2016), retention of communications data (Part 4 of the IPA 2016) and targeted equipment interference (Part 5 of the IPA 2016). Interception covers the acquisition of the content of a communication (192) while acquisition and retention of communications data is not aimed at obtaining the content of the communication, but at the “who”, “when”, “where” and “how” of the communication. This covers for instance the time and duration of a communication, the phone number or email address of the originator and recipient of the communication, and sometimes the location of the devices from which the communication was made, the subscriber to a telephone service or an itemised bill (193). Equipment interference is a set of techniques used to obtain a variety of data from equipment, which includes computers, tablets and smart phones as well as cables, wires and storage devices (194).

(140) Targeted interception powers can also be used when “necessary for the purpose of giving effect to the provisions of an EU mutual assistance instrument or an international mutual assistance agreement” (so-called “mutual assistance warrant” (195)). Mutual assistance warrants are only provided in relation to interception, not acquisition of communications data or equipment interference. These targeted powers are regulated in the Investigatory Powers Act 2016 (IPA 2016) (196), which, together with the Regulation of Investigatory Powers Act 2000 (RIPA) for England, Wales and Northern Ireland and the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) for Scotland, provide for the legal basis and set out the applicable limitations and safeguards for the use of such powers. The IPA 2016 also provides the regime for the use of bulk investigatory powers, although those are not available to law enforcement authorities (only intelligence agencies can make use of them) (197).

(141) In order to exercise these powers, the authorities need to obtain a warrant (198) issued by a competent authority (199), and approved by an independent Judicial Commissioner (200) (so-called “double-lock” procedure). The obtaining of such a warrant is subject to a necessity and proportionality test (201). Since these targeted investigatory powers provided by the IPA 2016 are the same as those available to national security agencies, the conditions, limitations and safeguards applicable to such powers are addressed in detail in the Section on access and use of personal data by United Kingdom public authorities for national security purposes (see recitals (177) and following).

3.2.2. Further use of the information collected

(142) The sharing of data by a law enforcement authority with a different authority for purposes other than the ones for which it was originally collected (so-called “onward sharing”) is subject to certain conditions.

(143) Similarly to what is provided under Article 4(2) of Directive (EU) 2016/680, Section 36(3) of the DPA 2018 allows that personal data collected by a competent authority for a law enforcement purpose may be further processed (whether by the original controller or by another controller) for any other law enforcement purpose, provided that the controller is authorised by law to process data for the other purpose and the processing is necessary and proportionate to that purpose (202). In this case, all the safeguards provided by Part 3 of the DPA 2018, referred to in recitals (122) and (124) apply to the processing carried out by the receiving authority.

(144) In the United Kingdom legal order, different laws explicitly allow such onward sharing. In particular, (i) the Digital Economy Act 2017 allows the sharing between public authorities for several purposes, for example in case of any fraud against the public sector which would involve loss or a risk to loss for public authorities (203) or in case of a debt owed to a public authority or to the Crown (204); (ii) the Crime and Courts Act 2013 that permits the sharing of information with the National Crime Agency (NCA) (205) for combating, investigating and prosecuting serious and organised crime; (iii) the Serious Crime Act 2007 that allows public authorities to disclose information to anti-fraud organisations for the purposes of preventing fraud (206).

(145) These laws explicitly provide that the sharing of information should be in compliance with the principles set in the DPA 2018. Moreover, the College of Policing has issued an Authorised Professional Practice on Information Sharing (207) to assist the police in complying with their data protection obligations under the UK GDPR, DPA and Human Rights Act 1998. The compliance of the sharing with the applicable data protection legal framework is, of course, subject to judicial review (208).

(146) Moreover, similarly to what is set out in Article 9 of Directive (EU) 2016/680, the DPA 2018 provides that personal data collected for any law enforcement purpose may be processed for a purpose that is not a law enforcement one when the processing is authorised by law (209).

(147) This type of sharing covers two scenarios: 1) when a criminal law enforcement authority shares data with a non-criminal law enforcement authority other than an intelligence agency (such as, e.g. a financial or tax authority, a competition authority, a youth welfare office, etc.); and 2) when a criminal law enforcement authority shares data with an intelligence agency. In the first scenario, the processing of personal data will fall within the scope of the UK GDPR as well as under Part 2 of the DPA 2018. The Commissi