Legal background Law enforcement processing
The legal basis of the LED is Article 16(2) of the TFEU. Article 16 (which relates to the protection of personal data) measures in the area of police co-operation and judicial co-operation in criminal matters are subject to Article 6a of the UK (and Ireland’s) opt-in Protocol No. 21 for measures in Title V of the TFEU (which covers the Area of Freedom, Security and Justice). Article 6a provides that the UK (and Ireland) are not bound by rules laid down on the basis of Article 16 of the TFEU which relate to the processing of personal data by the Member States in certain circumstances. These are when carrying out activities which fall within the scope of Chapters 4 or 5 of Title V of the TFEU where the UK (and Ireland) are not bound by the rules governing the forms of judicial co-operation in criminal matters or police co-operation which require compliance with the provisions laid down on the basis of Article 16. The terms of Article 6a are reflected in Recital 99 of the LED. Given this, the LED only applies to the UK in circumstances where data sharing is done under Title V measures in the area of police co-operation or judicial co-operation in criminal matters that bind the UK. For the reasons set out above, however, the provisions in Part 3 of the Act apply to all processing – domestic and trans-national – for law enforcement purposes.
	In accordance with the Government’s Transposition Guidance2, the approach taken in Part 3 of the Act is broadly to copy-out the LED wherever possible and only to elaborate where such elaboration is necessary to reflect UK-drafting style, clarify the legal effect of a provision or to take advantage of flexibility afforded by the terms of the LED.