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Where did the GPDR come from?

Bryan Edwards

The European General Data Protection Regulation is a fantastically complex piece of legislation but it is not an "Act" or, as Acts are called in the EU, a Directive.

It has been brought into law across the EU (and beyond) and will come into force on 25th May 2018.

Most importantly, it proves how domestic law in member states can be written by Europe outside the democratic process.

In the dark days when the Global Financial Crisis was at its worst, many sought to blame the banks and in many, but not all, ways that criticism was justified.

In Europe, there are two major financial centres: Frankfurt is a distant second from London and the EU, which has the European Central Bank in Frankfurt wants Frankfurt to be first. The fact that London is the biggest Euro market despite the UK not being in the Eurozone upsets them greatly. The EU decided that the Global Financial Crisis could be used to create a regulatory regime for European (not only Eurozone) banks which would remove many regulatory powers from the central banks and regulators in states and transfer that authority to the European Central Bank. But hidden in the paperwork was a grander scheme: it was a scheme to allow the EU to bypass the European Parliament and to issue laws across the entire legal structure of member states. The changes that allowed direct regulation in the financial sector did not begin and end at the financial sector.

In short, using regulation of the banks as cover, the EU, at one stroke, removed a major part of the European democratic process. No longer would the EU need Directives which are argued over in the EU parliament and, albeit a bit like a butterfly beating a buffalo, in national parliaments.

The General Data Protection Legislation is one of the first examples of how major changes in UK law are effected not by the UK's parliament nor even by politicians elected by Britons to the European Parliament but by non-elected officials.

European Regulations are not new. They have long been used for the original purpose of regulations in most jurisdictions: that of filling in the details in Acts and for defining procedures. What Regulations have not, in the EU or elsewhere, been used for is making new law and major changes. Now the EU is using Regulations for policy matters.

Historically, Regulations were possible only where there was an "enabling Act." Now, in the EU, the enabling Act is one that says, in effect, that the EU can make Regulations on anything it likes. It is no longer necessary for an enabling Act for each area in which regulations are needed.

There's something funny: today, the EU's own website at https://europa.eu/european-uni... says "The policy on "protection of individuals with regard to the processing of personal data by the Community institutions" is based on Regulation (EC) N° 45/2001 of the European Parliament and of the Council of 18 December 2000." That's at http://eur-lex.europa.eu/legal....

They should be looking at https://eur-lex.europa.eu/lega... for that is where the GDPR, 2016, will be found.

Bryan Edwards is a contributor to PleaseBeInformed.com. His views are his own.

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