Brexit: the gift that keeps on giving… And they thought it was all over!

Stuart Ritchie

09.03.2017

The Three Knights are riding to the rescue!

Or… is it.. the Three Stooges, or perhaps Sanchos, tilting at the windmills that seem to be spinning ever more rapidly?

(yes, the GDPR does have a little dog in this race. But later…)

As for my initial view? A plague on both their houses. The Three Knights do a good job, as does Professor Elliot in pointing out weaknesses. However, some of the good Professor’s key points seem a trifle theoretical and, if that is right, dangerously susceptible to collapse if taken to the Supreme Court (which can reverse itself as and when it wishes on any points raised). So on the submissions I’m more likely persuaded by the Three Knights. Subsequently I read Ms Slowe’s analysis and was rather taken by the point that the CJEU will duck any case, until the matter is decided but for the CJEU’s assent. But what would I know? I’m just a humble ploughman in the fields of opportunity….

That said, I cannot resist pointing out, again, what should have been obvious last year. R(Miller) was an executive own goal from beginning to end. They could have "won" the case, with costs, very easily, just by not resisting and running to the parliament with all guns blazing to get their Article 50 vote. Instead the executive threw away three months and much political capital going precisely nowhere. And this newest bundle of fun seems an almost inevitable consequence of the can of worms opened by R(Miller). So the ministerial Miller self-torture is not yet over!

Hopefully the executive will see sense at last and seek a political solution by bullying, cowing, and intimidating the parliament, which is pretty much the MO of the executive anyway, as well as the expertise for which it is renowned. The alternative? go and pick a fight with people cleverer than you, under their rules and on their own turf (the constitution, yep that constitution you honour only in the breach), for no good reason and only a chance of victory. Bad idea and worse politics, which no executive would ever take up. Oh, that’s right, I forgot. That’s what they did in Miller…

Anyway, having avidly studied Brexit for four years, I’m thrilled that it’ll keep on giving such pleasure to millions, for at least another year or two. Or even three! Why three? Because if we’re really really lucky, and the executive keeps on being really really stupid, then the meaning of the UK’s constitutional requirements as interpreted by Article 50 will end up being judged by… boom boom… the CJEU after we all break out the popcorn on April Fool’s Day 2019. As some feared (and some bread and circuses afficionados, like myself, hoped) would happen last year.

And the consequences for data protection generally, and GDPR in particular? Prima facie, not a lot either way. GDPR is already law and it’ll be enforced next year come what may. So if Brexit doesn’t happen, then no change there (though the politics, and the binning of more of the usual suspects, and the revival of the Brexiteers’ Unionist passions, will be joyful to behold, especially if the Scots execute one of at least two non-UK legal options to torpedo either the deal or the result – almost as good as the US election, all over again!)

On the other hand, if post-GDPR Brexit does happen, as it probably will as soon as (if?) the executive gets a grip, then the UK suddenly may be subjected to the most ferocious data protection regime change in history. A target-rich litigation environment. Happy hunting for plaintiff and defence lawyers alike. Ironic, really.

So for data protection litigation, I’m hoping for Brexit. For personal entertainment, I’m hoping for status quo.

Whose side am I really on, then? Why, the constitution! Soooo mid-twentieth-century, I grant you. But I make no apologies: someone has to visit the constitution in the hospice.

UPDATES:

Yes, I must eat humble pie. When I specified April Fool’s day 2019 (above), I was two days shy. Three cheers for the executive! That particular own-goal was so obvious even they managed to spot it – I assume of course they avoid this little blog on the basis of my (entirely simulated) expertise.

Brexit Exit Clause (30 March 2017).

Slowe steps up the pace (7 April 2017)

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