Data (Use and Access) Act 2025

Section 85

Schedule 7 U.K. Transfers of personal data to third countries etc: general processing

Prospective

Introduction U.K.

1 Chapter 5 of the UK GDPR (transfers of personal data to third countries or international organisations) is amended as follows.

Commencement Information

I1 Sch. 7 para. 1 not in force at Royal Assent, see s. 142(1)

Prospective

General principles for transfers U.K.

2 (1) Omit Article 44 (transfers of personal data to third countries etc: general principle for transfers).

(2) After that Article insert—

“Article 44A General principles for transfers

1. A controller or processor may transfer personal data to a third country or an international organisation only if—

(a) the condition in paragraph 2 is met, and

(b) the transfer is carried out in compliance with the other provisions of this Regulation.

2. The condition is met if the transfer—

(a) is approved by regulations under Article 45A that are in force at the time of the transfer,

(b) is made subject to appropriate safeguards (see Article 46), or

(c) is made in reliance on a derogation for specific situations (see Article 49).

3. A transfer may not be made in reliance on paragraph 2(b) or (c) if, or to the extent that, it would breach a restriction in regulations under Article 49A.”

Commencement Information

I2 Sch. 7 para. 2 not in force at Royal Assent, see s. 142(1)

Prospective

Transfers approved by regulations U.K.

3 Omit Article 45 (transfers on the basis of an adequacy decision).

Commencement Information

I3 Sch. 7 para. 3 not in force at Royal Assent, see s. 142(1)

4 U.K. After that Article insert—

“Article 45A Transfers approved by regulations

1. For the purposes of Article 44A, the Secretary of State may by regulations approve transfers of personal data to—

(a) a third country, or

(b) an international organisation.

2. The Secretary of State may only make regulations under this Article approving transfers to a third country or international organisation if the Secretary of State considers that the data protection test is met in relation to the transfers (see Article 45B).

3. In making regulations under this Article, the Secretary of State may have regard to any matter which the Secretary of State considers relevant, including the desirability of facilitating transfers of personal data to and from the United Kingdom.

4. Regulations under this Article may, among other things—

(a) make provision in relation to a third country or international organisation specified in the regulations or a description of country or organisation;

(b) approve all transfers of personal data to a third country or international organisation or only transfers specified or described in the regulations;

(c) identify a transfer of personal data by any means, including by reference to—

(i) a sector or geographic area within a third country,

(ii) the controller or processor,

(iii) the recipient of the personal data,

(iv) the personal data transferred,

(v) the means by which the transfer is made, or

(vi) relevant legislation, schemes, lists or other arrangements or documents, as they have effect from time to time;

(d) confer a discretion on a person.

5. Regulations under this Article are subject to the negative resolution procedure.

Article 45B The data protection test

1. For the purposes of Article 45A, the data protection test is met in relation to transfers of personal data to a third country or international organisation if the standard of the protection provided for data subjects with regard to general processing of personal data in the country or by the organisation is not materially lower than the standard of the protection provided for data subjects by or under—

(a) this Regulation,

(b) Part 2 of the 2018 Act, and

(c) Parts 5 to 7 of that Act, so far as relevant to general processing.

2. In considering whether the data protection test is met in relation to transfers of personal data to a third country or international organisation, the Secretary of State must consider, among other things—

(a) respect for the rule of law and for human rights in the country or by the organisation,

(b) the existence, and powers, of an authority responsible for enforcing the protection of data subjects with regard to the processing of personal data in the country or by the organisation,

(c) arrangements for judicial or non-judicial redress for data subjects in connection with such processing,

(d) rules about the transfer of personal data from the country or by the organisation to other countries or international organisations,

(e) relevant international obligations of the country or organisation, and

(f) the constitution, traditions and culture of the country or organisation.

3. In paragraphs 1 and 2—

(a) the references to the protection provided for data subjects are to that protection taken as a whole,

(b) the references to general processing are to processing to which this Regulation applies or equivalent types of processing in the third country or by the international organisation (as appropriate), and

(c) the references to processing of personal data in the third country or by the international organisation are references only to the processing of personal data transferred to the country or organisation by means of processing to which this Regulation applies as described in Article 3.

4. When the data protection test is applied only to certain transfers to a third country or international organisation that are specified or described, or to be specified or described, in regulations (in accordance with Article 45A(4)(b))—

(a) the references in paragraphs 1 to 3 to personal data are to be read as references only to personal data likely to be the subject of such transfers, and

(b) the reference in paragraph 2(d) to transfer to other countries or international organisations is to be read as including transfer within the third country or international organisation.”

Commencement Information

I4 Sch. 7 para. 4 in force at Royal Assent for specified purposes, see s. 142(1)(2)(h)

Prospective

Transfers approved by regulations: monitoring U.K.

5 After Article 45B (inserted by paragraph 4) insert—

“Article 45C Transfers approved by regulations: monitoring

1. The Secretary of State must, on an ongoing basis, monitor developments in third countries and international organisations that could affect decisions to make regulations under Article 45A or to amend or revoke such regulations.

2. Where the Secretary of State becomes aware that the data protection test is no longer met in relation to transfers approved, or of a description approved, in regulations under Article 45A, the Secretary of State must, to the extent necessary, amend or revoke the regulations.

3. Where regulations under Article 45A are amended or revoked in accordance with paragraph 2, the Secretary of State must enter into consultations with the third country or international organisation concerned with a view to improving the protection provided to data subjects with regard to the processing of personal data in the country or by the organisation.

4. The Secretary of State must publish—

(a) a list of the third countries and international organisations, and the descriptions of such countries and organisations, which are for the time being approved by regulations under Article 45A as places or persons to which personal data may be transferred, and

(b) a list of the third countries and international organisations, and the descriptions of such countries and organisations, which have been but are no longer approved by such regulations.

5. In the case of regulations under Article 45A which approve only certain transfers to a third country or international organisation specified or described in the regulations (in accordance with Article 45A(4)(b)), the lists published under paragraph 4 must specify or describe the relevant transfers.”

Commencement Information

I5 Sch. 7 para. 5 not in force at Royal Assent, see s. 142(1)

Prospective

Transfers subject to appropriate safeguards U.K.

6 (1) Article 46 (transfers subject to appropriate safeguards) is amended as follows.

(2) Omit paragraph 1.

(3) After that paragraph insert—

“1A. A transfer of personal data to a third country or an international organisation by a controller or processor is made subject to appropriate safeguards only—

(a) in a case in which—

(i) safeguards are provided in connection with the transfer as described in paragraph 2 or 3 or regulations made under Article 47A(4), and

(ii) the controller or processor, acting reasonably and proportionately, considers that the data protection test is met in relation to the transfer or that type of transfer (see paragraph 6), or

(b) in a case in which—

(i) safeguards are provided in accordance with paragraph 2(a) by an instrument that is intended to be relied on in connection with the transfer or that type of transfer, and

(ii) each public body that is a party to the instrument, acting reasonably and proportionately, considers that the data protection test is met in relation to the transfers, or types of transfer, intended to be made in reliance on the instrument (see paragraph 6).”

(4) In paragraph 2—

(a) in the words before point (a)—

(i) omit “appropriate”, and

(ii) for “paragraph 1” substitute “paragraph 1A(a)”,

(b) in point (a), for “public authorities or bodies” substitute “a public body and another relevant person or persons”,

(c) in point (b), after “rules” insert “approved”,

(d) in point (c), for “section 17C of the 2018 Act” substitute “Article 47A(1)”,

(e) in point (e), for “appropriate safeguards” substitute “safeguards provided by the code”, and

(f) in point (f), for “appropriate safeguards” substitute “safeguards provided by the mechanism”.

(5) In paragraph 3, in the words before point (a)—

(a) omit “appropriate”,

(b) for “paragraph 1” substitute “paragraph 1A(a)”,

(c) omit “, in particular,”, and

(d) in point (b), for “public authorities or bodies” substitute “a public body and another relevant person or persons”.

(6) At the end insert—

“6. For the purposes of this Article, the data protection test is met in relation to a transfer, or a type of transfer, of personal data if, after the transfer, the standard of the protection provided for the data subject with regard to that personal data by the safeguards required under paragraph 1A, and (where relevant) by other means, would not be materially lower than the standard of the protection provided for the data subject with regard to the personal data by or under—

(a) this Regulation,

(b) Part 2 of the 2018 Act, and

(c) Parts 5 to 7 of that Act, so far as relevant to processing to which this Regulation applies.

7. For the purposes of paragraph 1A(a)(ii) and (b)(ii), what is reasonable and proportionate is to be determined by reference to all the circumstances, or likely circumstances, of the transfer or type of transfer, including the nature and volume of the personal data transferred.

8. In this Article—

(a) references to the protection provided for the data subject are to that protection taken as a whole;

(b) “relevant person” means a public body or another person exercising functions of a public nature.”

Commencement Information

I6 Sch. 7 para. 6 not in force at Royal Assent, see s. 142(1)

Prospective

7 U.K. In the heading of Article 47 (binding corporate rules) at the beginning insert “Transfers subject to appropriate safeguards:”.

Commencement Information

I7 Sch. 7 para. 7 not in force at Royal Assent, see s. 142(1)

8 U.K. After Article 47 insert—

“Article 47A Transfers subject to appropriate safeguards: further provision

1. The Secretary of State may by regulations specify standard data protection clauses which the Secretary of State considers are capable of securing that the data protection test set out in Article 46 is met in relation to transfers of personal data generally or in relation to a type of transfer specified in the regulations.

2. The Secretary of State must keep under review the standard data protection clauses specified in regulations under paragraph 1 that are for the time being in force.

3. Regulations under paragraph 1 are subject to the negative resolution procedure.

4. The Secretary of State may by regulations make provision about further safeguards that may be relied on for the purposes of Article 46(1A)(a).

5. The Secretary of State may only make regulations under paragraph 4 if the Secretary of State considers that the further safeguards are capable of securing that the data protection test set out in Article 46 is met in relation to transfers of personal data generally or in relation to a type of transfer specified in the regulations.

6. Regulations under paragraph 4 may, among other things—

(a) make provision by adopting safeguards prepared or published by another person;

(b) make provision about ways of providing safeguards which require authorisation from the Commissioner.

7. Regulations under paragraph 4 which amend Article 46 may do so only in the following ways—

(a) by adding ways of providing safeguards, or

(b) by varying or omitting ways of providing safeguards which were added by regulations under this Article.

8. Regulations under paragraph 4 are subject to the affirmative resolution procedure.”

Commencement Information

I8 Sch. 7 para. 8 in force at Royal Assent for specified purposes, see s. 142(1)(2)(h)

Derogations for specific situations U.K.

9 (1) Article 49 (derogations for specific situations) is amended as follows.

(2) In paragraph 1, in the first subparagraph—

(a) for “adequacy regulations under section 17A of the 2018 Act, or of appropriate safeguards pursuant to Article 46, including binding corporate rules” substitute “approval by regulations under Article 45A and of compliance with Article 46 (appropriate safeguards)”, and

(b) in point (a), for “an adequacy decision” substitute “approval by regulations under Article 45A”.

(3) In paragraph 1, in the second subparagraph, for “a provision in Article 45” substitute “Article 45A”.

(4) In paragraph 4, for “section 18(1) of the 2018 Act” substitute “paragraph 4A”.

(5) After paragraph 4 insert—

“4A. The Secretary of State may by regulations specify for the purposes of point (d) of paragraph 1—

(a) circumstances in which a transfer of personal data to a third country or international organisation is to be taken to be necessary for important reasons of public interest, and

(b) circumstances in which a transfer of personal data to a third country or international organisation which is not required by an enactment is not to be taken to be necessary for important reasons of public interest.”

(6) Omit paragraph 5A.

(7) After paragraph 6 insert—

“7. Regulations under this Article—

(a) are subject to the made affirmative resolution procedure where the Secretary of State has made an urgency statement in respect of them;

(b) otherwise, are subject to the affirmative resolution procedure.

8. For the purposes of this Article, an urgency statement is a reasoned statement that the Secretary of State considers it desirable for the regulations to come into force without delay.”

Commencement Information

I9 Sch. 7 para. 9 in force at Royal Assent for specified purposes, see s. 142(1)(2)(h)

Public interest restrictions U.K.

10 After Article 49 insert—

“Article 49A Restriction in the public interest

1. The Secretary of State may by regulations restrict the transfer of a category of personal data to a third country or international organisation where—

(a) the transfer is not approved by regulations under Article 45A for the time being in force, and

(b) the Secretary of State considers the restriction to be necessary for important reasons of public interest.

2. Regulations under this Article—

(a) are subject to the made affirmative resolution procedure where the Secretary of State has made an urgency statement in respect of them;

(b) otherwise, are subject to the affirmative resolution procedure.

3. For the purposes of this Article, an urgency statement is a reasoned statement that the Secretary of State considers it desirable for the regulations to come into force without delay.”

Commencement Information

I10 Sch. 7 para. 10 in force at Royal Assent for specified purposes, see s. 142(1)(2)(h)