The right hon. Gentleman gets right to the heart of the case. I believe that the answer to his question is no they would not, or at least we do not know what the outcome would be. I suggest that the right hon. Member for Haltemprice and Howden might well not have won his case against the Government if he had not been able to rest on article 8. The hon. Member for Banbury (Victoria Prentis), who intervened earlier, might have persuaded the court that the then Home Secretary, now the Prime Minister, was right in what she was doing and that the right hon. Member for Haltemprice and Howden was wrong. We do not know what that Appeal Court would have decided, but I put it to the right hon. Member for Forest of Dean (Mr Harper)—I think he is rather implicitly accepting the point—that if article 8 had not been there for the right hon. Member for Haltemprice and Howden to rest on, the outcome of that case and of lots of others could well have been different.
To quote Dr O’Brien again, she made the point that the gap that is created by no longer having the charter of fundamental rights in UK law is probably clearest in the case of data protection because of the charter
“creating fairly specific, concrete rights that are not necessarily enunciated in exactly the same terms elsewhere.”
I think that is the answer to the intervention I have just been responding to: actually, these rights are not readily available elsewhere.
I was delighted to hear from the Minister that we will get a document—I think he said by 5 December—setting out all the rights in the charter of fundamental rights and where they can be found elsewhere in UK law. That will make very interesting reading. I simply make the point at this stage that a number of experts are saying that some of the rights—this is particularly the case with article 8—are not elsewhere. It will be interesting to see what that document says.
It is worth reminding the Committee of what article 8 says. The first two of the three points within it state:
“Everyone has the right to the protection of personal data concerning him or her…Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.”
As has been mentioned in this debate, there is a right to be forgotten, and that is provided by the right to have data rectified. It goes on to say that there needs to be an independent body in charge of all this. That is what article 8 says, word for word. My amendment says that that needs to be on the statute book in the UK. I do not think that those forms of words would cause great difficulty to the Government. We all agree that these are appropriate things, but they need to be explicitly set out in the law so that they can be drawn on in future, because they are not set out clearly elsewhere.
4.15 pm
The Minister, in responding to an earlier intervention prompted by a comment from the Solicitor General, suggested that article 8 of the European convention on human rights was good enough. That certainly is not correct, as it sets out the right to respect for private and
family life. While I can see that there is some sort of vague connection, article 8 of the ECHR does not even mention data. If the Government think that they are going to get the European Commission to confirm that our data protection is adequate on the basis of article 8 of the ECHR, they really are in for a very rude shock in due course. It does not cover that at all.
The right hon. and learned Member for Beaconsfield (Mr Grieve) suggested that a way forward could be to incorporate the words I read out from article 8 of the charter of fundamental rights in a Bill, thereby giving them a status on a par with the Human Rights Act. Certainly, if the Government were to move in that direction, it would meet the aims of my amendment. If this is no longer spelled out clearly in UK law, there will be some uncertainty about how UK data protection law will work after Brexit, and that would be unfortunate.
However, there is a far more serious issue at stake than a bit of difficulty in how we interpret the law in future, because this lack of clarity would put at risk the outcome of the European Commission’s determination of whether data protection regulation in the UK is “adequate”—a technical decision that the Commission will be called on to make in due course. Failure to secure such a determination would be catastrophic for the UK economy.