Brexit: Movement of People in the Cultural Sector (European Union Committee Report)

Lord Jay of Ewelme Excerpts

Wednesday 15th May 2019 Lords Chamber

Moved by

[Lord Jay of Ewelme]

To move that this House takes note of the report from the European Union Committee Brexit: Movement of People in the Cultural Sector (19th Report, HL Paper 182.)

[Lord Jay of Ewelme (CB)]

My Lords, perhaps I will wait a moment while free movement outside the cultural sector takes place.

It is a pleasure to introduce the European Union Committee’s report on movement of people in the cultural sector. Let me say at the start that I am grateful to the members of the sub-committee and to our excellent secretariat. The report was published on 26 July last year, and the Government’s response was received on 13 November—the day before the draft withdrawal agreement and political declaration were published. The Government have also since published their immigration White Paper, in December last year, setting out the UK’s future immigration system after free movement comes to an end. The House of Lords moves with due deliberation, and I shall not complain about the delay in scheduling this debate, which perhaps reflects the timeless nature of our culture.

Throughout the inquiry, and following publication of the report, the committee has engaged closely with the cultural sector. The committee heard from musicians, dancers and other artists, not only on the impact that ending free movement could have on the arts sector in the UK but on the negative impact that the uncertainty of the Brexit negotiations is already having. I will return to that. I was pleased to be able to discuss these concerns with Margot James, the Minister for Digital and the Creative Industries, in what was an encouraging meeting. However, I have the impression that the Home Office may be rather fiercer.

The committee made two clear recommendations to the Government to minimise disruption to the cultural sector after the UK leaves the EU. The first recommendation was that the Government should seek an EU-wide, multi-entry, short-term touring visa for UK citizens and offer a reciprocal commitment for EU citizens. This issue was raised a few minutes ago in a question from the noble Lord, Lord Wigley. Such a visa would enable self-employed artists and musicians to travel easily between the UK and the EU for temporary work. It would ensure that touring remains affordable and easy to organise for all self-employed artists. Ensuring that artists can continue to move freely between the UK and the EU will ensure that our cultural sector remains vibrant and rich in talent. If I may say so, this is equally true for the opulence of Covent Garden and the mud of Glastonbury. The committee was constantly struck by the extent to which the cultural sector depends on free movement of people within the European Union. The evidence from the Creative Industries Federation on that point was compelling.

Our second recommendation was to ensure that EU citizens travelling on short-term contracts to the UK after the transition period will not have to pay into our social security system, and that the Government should seek reciprocal arrangements with the EU. Under current EU provisions, posted workers and others who actively work in two or more member states pay social security contributions only in the member state in which they are regularly employed. The concern we have heard from the sector is that, without this policy, it would often be too expensive for UK artists and musicians to tour in the EU and vice versa.

The Government’s response to our report rightly echoed our praise of Britain’s cultural excellence and diversity, and—worth emphasising here—its importance to the economy, contributing up to £29.5 billion in 2017, the last year for which figures are available. But it was disappointing that the Government’s response to the report lacked, or seemed to lack, genuine consideration of our recommendations. The Government did not address our concerns that applying the current visa system to EU nationals would make it harder to bring talent to the UK; nor did they consider how they could encourage the EU to allow artists to tour easily and take part in temporary arrangements. Further, there was no consideration of our recommendation to waive social security payments for EU citizens travelling to the UK on short-term contracts.

When the immigration White Paper was published, the committee examined it carefully for proposals that reflected the recommendations made in our report. Alas, we found none. I invite the Minister to confirm when replying to this debate whether a touring visa has been ruled out and whether the Government are considering waiving social security payments for temporary EU workers whose regular work is in the European Union.

Since the publication of our report the uncertainty over when and how the UK will leave the EU has increased greatly. We have heard that this uncertainty is already having a negative impact on the cultural sector. The Incorporated Society of Musicians has told us that some EU employers have been reluctant to hire talent in the face of a possible no-deal scenario. Indeed, a recent survey conducted by the Incorporated Society of Musicians found that one in 10 respondents reported that offers of work have been withdrawn or cancelled as a result of Brexit uncertainty. Its recent report stated:

“Brexit casts doubt about the need for visas and their cost which directly affects the viability of concerts”.


I do not expect the Minister to tell us what will happen next—one can always hope, but I do not expect—but I hope he will acknowledge the damage that uncertainty is already causing to our cultural sector.

We welcome the Government’s announcement that in the event of no deal EU citizens will be able to come to the UK for periods of up to three months to work and to apply for European temporary leave to remain to stay for up to 36 months. We are, however, concerned that UK citizens have not been offered reciprocal treatment to enter EU member states. The committee has asked the Minister for Immigration, Caroline Nokes, for an update on the Government’s engagement with EU member states on how they intend to treat UK nationals seeking to work in those countries if there is no deal. The Immigration Minister has, alas, failed to respond to that request. I hope the Minister will be able to give us an update today.

We did not focus much in our report on poetry, which gives me a chance now to say how much I welcome the appointment of Simon Armitage as Poet Laureate. His poems carved in stone along the Pennine Way are witness to the enduring character of British—and, of course, Yorkshire—culture.

However, British culture is also European and depends for its vibrancy on the free movement of people across our borders. I hope the Minister will assure us that the Government will do all in their power to make sure that Britain’s cultural sector, and the British economy with it, is not adversely by Brexit. I beg to move.

--- Later in debate ---

[Lord Jay of Ewelme]

My Lords, I am grateful to all those who have spoken in this debate: there have been some very powerful speeches this afternoon. I am also grateful to the Minister for his thoughtful reply and his undoubted commitment to our cultural sector. The debate has confirmed the importance of our culture, both for its intrinsic excellence and for its benefit to our economy and soft power aboard. I well remember, when I was ambassador in Paris, an excellent production of a British play sponsored by the British Council, whose title bashfulness forbids me to mention in the confines of your Lordships’ House.

Motion agreed.

Data Protection Bill [HL]

Lord Jay of Ewelme Excerpts

2nd reading (Hansard): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Lord Jay of Ewelme (CB)]

My Lords, it is always a pleasure to follow the noble Lord, Lord McNally. It is always a good thing when one optimist follows another. As chairman of the EU Home Affairs Sub-Committee, I will speak mainly about the EU Committee’s report on the EU data protection package, which we are debating alongside the Second Reading of the Data Protection Bill.

I understand that it is unusual procedure to debate a committee report alongside a Bill but I believe that it makes sense on this occasion. As the noble Lord, Lord Stevenson, said, the committee meets shortly—indeed, tomorrow—and I am sure it will consider his proposal, but taking into account how that would fit in with the traditional role of the committee and the programme we already have before us, I am sure the noble Lord will forgive me if I do not go further than that at this stage. We have not yet received a response to our report from the Government, which we await with keen anticipation, but we are pleased that this Second Reading debate has given us an opportunity to bring the EU Committee’s findings to the attention of the House.

In their recent Brexit position paper, The Exchange and Protection of Personal Data—A Future Partnership Paper, the Government said that they wanted to maintain free and uninterrupted data flows with the EU after we leave; and in proposing a new security and criminal justice treaty between the UK and the EU in her recent Florence speech, the Prime Minister laid out her ambition for a model underpinned by, among other things, high standards of data protection. Our report supports this objective: free and uninterrupted data flows matter to us all. But the committee was struck by the absence of clear and concrete proposals for how the Government plan to deliver that objective. The stakes are high, not least because the introduction of greater friction in data transfers could present a real barrier to future trade. It is hard to overstate the importance of cross-border data flows to the UK economy. Getting on for half of all large EU digital companies are based in the UK, and three-quarters of the UK’s cross-border data flows are with EU countries. What is more, any impediments to data flows following our withdrawal from the EU could seriously hinder police and security co-operation, and that means that lives, not just money, are at stake.

In our report, we considered four elements of the EU’s data protection package: the general data protection regulation—the GDPR—which the Data Protection Bill seeks to transpose into UK law; the police and criminal justice directive; the EU-US privacy shield, and the EU-US umbrella agreement. Both the regulation and the directive will enter into force in May 2018, while we are still a member of the EU. The agreements with the US are already in force, but will cease to apply to the UK after our withdrawal. Our report considers the Government’s policy options both short and long term.

The committee wanted first to look at possible data protection arrangements once the UK becomes a third country outside the EU, and we heard evidence on two broad options. The first option is for the UK Government to secure a so-called adequacy decision from the European Commission which would certify that the UK offered a standard of protection that was “essentially equivalent” to EU data protection standards. To date, the Commission has adopted 12 such decisions. The second option would be for individual data controllers and processors to adopt their own safeguards using tools such as standard contractual clauses and binding corporate rules. Our report comes to a clear conclusion that this second option would be less effective. The tools available to individual data controllers, including small businesses, are bureaucratic and would be vulnerable to legal challenges. We therefore agree with the Information Commissioner that the Government should seek an adequacy decision for the UK as a whole. This should offer certainty for businesses, particularly SMEs. It would also follow the approach taken by Switzerland, which has secured an adequacy decision from the EU. I am therefore pleased that the Government’s position paper also calls for a future relationship that builds on the adequacy model.

But there is a fly in this particular ointment. The general data protection regulation only provides for adequacy decisions for third countries, not countries leaving the EU. Decisions also follow a lengthy procedure, so the chances of having an adequacy decision in place by March 2019 are small. So to avoid a cliff edge, we will need transitional arrangements. The Government’s position paper acknowledges this but lacks detail. I hope that in responding to this debate the Minister will update us on the Government’s thinking on transition and perhaps provide some more of that detail. In particular, I hope that as a Home Office Minister she can comment on the risks facing law enforcement. One of the most striking findings in our inquiry was that as a third country the UK could find itself held to higher standards of data protection than as a member state. This will be the case both when the European Commission considers an adequacy decision and when the UK’s data retention and surveillance regime is tested before the Court of Justice, at which point we will no longer be able to rely on the national security exemption enjoyed by member states under the EU treaties. The United States has fallen foul of EU data protection law in the past, and it is not impossible that the United Kingdom will do the same when it is no longer a member state.

On a related theme, the committee also considered whether the UK’s data protection regime would continue to be influenced by EU legislation after withdrawal. What we found was that the general data protection regulation will continue to apply to transfers of personal data from the EU to the UK, significantly affecting UK businesses that handle EU data. If we obtain an adequacy decision, the rulings of the new European Data Protection Board and the Court of Justice will have an effect, albeit indirectly, by altering the standards that the UK will need to maintain an adequate level of protection. This means that there will be no clean break. We will also continue to be affected by EU rules on the onward transfer of personal data to third countries. This could be a particular problem in the field of security, whereby our approach to sharing personal data with, say, the United States could put any adequacy decision at risk. In summary, it seems likely that EU and UK data protection practices will need to remain alive long after we leave the EU.

The Bill that we are debating today reflects a comprehensive EU data protection regime which has been heavily influenced over the years by the United Kingdom. Withdrawal from the EU means that we stand to lose the institutional platform from which we have exercised that influence. The committee’s report therefore concludes that the Government must aim to retain the UK’s influence wherever possible, starting by securing a continuing role for the Information Commissioner’s Office on the European Data Protection Board. I am glad that the Government’s data protection position paper spells out our aim to do just that, but in the longer term, the Government will also need to find a way to work in partnership with the EU to influence the development of data protection standards at both the EU and the global level. The continued success of our commercial and security relations with the EU will depend on that.