Wide-ranging UK DATA SHARING moves one step closer

Privacy safeguards?

The 28 July documentation claims that the privacy safeguards against excessive data sharing include: "The Data Protection Act 1998; Law of Confidentiality; Article 8 of the European Convention on Human Rights and EU legislation on data sharing". I will now show when these legal safeguards are unlikely to apply.

For instance, with respect to the common law of confidence, it is well known that one can always set aside a confidentiality obligation if there is a statutory requirement to disclose such confidential personal data. So as soon as ministers exercise their data sharing powers to demand disclosure, so it's “goodbye” common law of confidence.

It is also well known that the Human Rights Act is under threat of abolition by the Conservative ministers in the coalition, who are currently driving the data sharing agenda. So if a Conservative government is returned after the next Election, we don’t know the nature of the Article 8 replacement. As for Europe – we might leave following an in-out referendum! In both cases, the safeguards on offer are uncertain.

With respect to the Data Protection Act (DPA), I have often argued that once statutory powers are applied to a disclosure, then the disclosure is almost invariably “lawful” and the disclosure itself can be subject to the exemption from the non-disclosure provisions (S.35(1)). This exemption can exclude several data protection principles (Fairness, Second to Fifth Principles) and the rights that could block disclosure.

The Third Principle can be neutered if broad purposes are defined in data sharing legislation. For example, if a controller says "personal data item X is relevant to a housing benefit purpose", the claim can objectively be tested: essentially, we can ask “is the data item relevant or not relevant to the housing benefit purpose?”.

However, this test is substantially diminished if the purpose is broadly defined as in "the purpose of the efficient delivery of public services"; many items of personal data could satisfy this requirement.

In summary, when a purpose is narrowly defined, the more precise the relevance test of the Third Principle becomes, and the more protection there is from the DPA. The converse is also true; the broader the purpose description, the less precise is the relevance test and the poorer the protection afforded by the DPA. The same argument applies to the retention criteria of the Fifth Principle as it, like the Third, the level of protection is linked to "the purpose" of the processing.

In summary, there will be not much data protection on offer when statutory data sharing powers are exercised.

What's missing....

Some of these are listed below; they are very easy to identify if, unlike the document, one asks the simple question “what could go wrong?”.

Whenever data subject consent is impracticable, then there has to be a right for any data subject to object to any further data sharing, at any time, without providing a reason. In fact, transparency arrangements should offer an “opt-out”. Exceptions to this right to object can be catered for and easily be identified (e.g. to permit data sharing in relation to fraud).

At the moment, there is no right to object that would apply to non-consensual data sharing, and it is important to understand that the current right to object to the processing under the DPA (S.10) won’t apply.

As soon as statutory powers for data sharing are exercised any data sharing required by law would be legitimate in terms of Paragraph 3 of Schedule 2, whereas the current right to object in the DPA only applies when paragraph 5 and 6 applies to the data sharing. In addition, the data subject has to show that data sharing would cause or likely to cause “unwarranted” and “substantial” damage or distress; this is a high barrier to the exercise of this right.

The second safeguard, I suspect, is needed when personal data are used for data matching and/or profiling; the Information Commissioner should be tasked to produce a statutory code of practice if data sharing involves these two.

Thirdly, there needs to be a counter-balance to the exercise of ministerial powers by Statutory Instrument (SI) as the UK parliament hardly ever rejects the use of powers granted to ministers (even when the SI is subject to debate in a Select Committee). The Information Commissioner should be given the explicit right to apply to court on the grounds that the processing of personal data is disproportionate in terms of Article 8 of the Human Rights Act. This raises the prospect of the power being declared unlawful and the SI being struck out.