Data proposal prompts legal warning

The government has been warned it could face legal problems over a proposal to change the rules on data sharing.

An expert on international law has said it could violate the European Convention on Human Rights, and the Information Commissioner's Office (ICO) has said there is already considerable scope for sharing under existing legal conditions.

"This proposal, if implemented, would basically throw data protection in the public sector out of the window," Douwe Korff, professor of international law at London Metropolitan University, said on 24 August 2006.

The statements follow a report in The Guardian that the MISC 31 committee, which was set up to examine data sharing issues, has decided a change is needed in the regulations for data sharing around government.

Under current policy public bodies and departments must provide a legal justification and specify the purpose each time they want to share data about individuals. The new policy would enable officials to assume personal data can be shared unless there are pressing reasons not to disclose it.

Korff said the change could break the Council of Europe Convention on Data Protection, the EU Framework Directive on Data Protection, and the Human Rights Act. He described it as "a manifest violation of the purpose limitation principle" that could run into trouble in UK and European courts.

He added, however, that the government's lawyers are probably aware of this, and that new regulations would be structured to ensure any restrictions on data sharing would be very loosely applied.

"Legal drafters in the UK are good at this, and often manage to persuade the court in Strasbourg that the law in some area is fine, even when practitioners know this is rubbish and the law is not applied in the way the government says it is," he said.

The ICO issued a more cautious statement, saying it expects "that the government will respect the principles of the Data Protection Act (DPA), which itself strikes a balance between the need to share information as part of delivering efficient public services and the need to protect the privacy of individuals' personal information".

It added that public can and should be sharing more information to benefit the public within the framework of the DPA. But it said there must be some limits to sharing, as people often feel strongly about the protection of their health and financial information.

"Few people would expect or be happy with a presumption that their medical or tax records will be shared widely between public bodies," the ICO said.

The Cabinet Office declined to answer questions on the report, but responded with a statement saying: "Transformational Government, amongst other reports, identified that there was a need for a cross-government strategy on information sharing. Cabinet Committee Misc 31 has been established to develop the Government's strategy on data sharing across the public sector."

It added that the committee will issue a policy statement "shortly".

This article was originally published at Kablenet.

Kablenet's GC weekly is a free email newsletter covering the latest news and analysis of public sector technology. To register click here.