See clauses 152-154

The British Computer Society (BCS) has issued a bluntly-worded critique of the data-sharing proposals buried in the Coroners and Justice Bill. Buried in the Bill are clauses which set out powers for any government minister to make an order for the sharing of personal data “in order to secure a relevant policy objective”.

The BCS document notes that these powers are wide-ranging and general, and that the Bill does not set out any corresponding checks and balances to curtail their inappropriate use.

The BCS further notes that the Bill is likely to contravene UK and EU Human Rights legislation, that it undermines the fundamental principles of the Data Protection Act 1998, that it weakens the independence of the incoming Information Commissioner (welcome to your new job, Mr Graham…), and that it will do further damage to the public’s condifence in government’s ability (and willingness) to process personal data with due regard to personal privacy.

The BCS’ position is neither trivial nor new. As David Evans points out in his blog post here, it is based on, among other things, a programme of consultation going back to 2006. The current Information Commissioner, Richard Thomas, expressed his deep concerns at the Bill last year, both in formal statements from his office, and in his keynote speech at the Privacy By Design conference.

It seems clear that, at one level, the intention of clauses 152-154 is simplification. Someone, somewhere must have concluded that the current position on data-sharing is just too complex, and that what is needed is a straightforward clause which cuts through all the nonsense and says “here’s why we want to share this data, it’s obviously sensible for us to do so, let’s get on with it”.

The issue is that, complicated and confusing as it may be, the patchwork of privacy-enhancing legislative measures we have in the UK consists of elements which are there for a reason, and are intended to protect both individuals and the public good. The main effect of introducing a ‘simplfying’ clause which allows ministers to over-ride existing protections is actually to make matters more complicated and more confusing – because these conflicting laws will now have to be played off against one another, both in plans to implement public policy and (with a grinding inevitability) in the national and European courts.

Quite apart from any other consideration, it ought surely to arouse the most lively scepticism when an existing Act (the Data Protection Act) is fundamentally modified by clauses buried deep in a separate bill ostensibly about ‘Coroners and Justice’. Clauses 152-154 deserve to be flushed out of their obscure hiding-place in the Coroners and Justice Bill, and into that sunlight which Justice Louis Brandeis described as “the best disinfectant”.

Incidentally, Justice Brandeis said a couple of other things which bear repeating in this context:

“Electric light [is said to be] the most efficient policeman” – which, given that he said it in 1913, was as accurate a harbinger of the technological surveillance society as one could ask for. Today he would have referred to CCTV, communications interception and automatic numberplate recognition, but the underlying principle is the same.

He also said, though, that “if we desire respect for the law, we must first make the law respectable.” In that regard, clauses 152-154 set a regrettably poor example.