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UK weakens supervision of Data Protection Act

Bills could remove Info Commissioner's independence

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Opinion I have concluded that proposals published by the government in relation to “the bonfire of the quangos” (the Public Bodies Bill) and in relation to reform of parliament (the Parliamentary Voting System and Constituencies Bill) can both serve to weaken the effectiveness of the supervision of the Data Protection Act.

There is a significant risk that a future government could use powers in both bills to reduce parliamentary scrutiny of its own processing of personal data or threaten the Information Commissioner into not taking regulatory action.

Before the Public Bodies Bill was published, I thought the Office of the Information Commissioner (ICO) was “safe” from abolition. The text of the bill shows that this is not the case, as the bill specifies all quangos as falling within one of seven Schedules of the bill.

For example, there is a schedule for quangos to be abolished; a schedule for those quangos that are to be merged with others; a schedule of those quangos whose powers and functions are to be changed; a schedule of those whose powers and functions are to be transferred; and finally a schedule of other public bodies which can be transferred into other schedules.

The ICO can be found listed in the last schedule. Technically, it is “safe” for the moment, but the powers in the bill mean that the ICO can be moved from the “safe” schedule to any other schedule (eg the “abolish” schedule or the “merge functions” schedule) at the stroke of a ministerial pen. All the minister needs do is lay an order before parliament changing the commissioner’s place in the schedules followed by another order removing powers, transferring functions or whatever the minister wants.

So suppose in future, an Information Commissioner is concerned about how government processes personal data. If the Information Commissioner is viewed by the minister to be “too pushy” or “unhelpful”, the bill allows the minister to change the powers and functions of the commissioner or transfer those functions to a more compliant body.

In other words, the commissioner cannot now be guaranteed to possess total independence from government. In my view, the risks associated with the Public Bodies Bill makes the overwhelming case for the commissioner to be taken away from the responsibility of the Ministry of Justice, and to report to, and to be funded by, parliament.

Mind you, the change proposed above is not a panacea, as the effectiveness of parliamentary supervision is likely to be eroded by the second proposal from government: the Parliamentary Voting System and Constituencies Bill. At the heart of the bill there is a proposal to reduce the number of MPs by 50, so that 600 MPs are in parliament. There is no proposal in the bill to reduce the number of MPs who serve in government.

As the government is formed from MPs in parliament, there is a “block vote” called the “payroll vote” that is worth about 150 votes. MPs in government are expected to vote for the government (or resign). So by reducing the number of MPs – but not the MPs in government – the payroll block vote increases its power from 23 per cent to 25 per cent.

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