I have the power

AUTHOR
Paul Simpkins

ABSTRACT

A analysis of the tensions in delivering e-government and joined up working in the public sector without infringing the rights of the individual to privacy in respect of their personal data.

The existing legal framework which governs public bodies’ powers to collect, use and share personal data is far flung and often difficult to track down.

There is an interaction with the Data Protection Act 1998, the Human Rights Act 1998, the common law tort of breach of confidence and other relevant legal provisions.

Essentially Public bodies cannot share data (or indeed buy paperclips) unless there is a specific power established by statute that they can do so.

In some cases specific statutory powers have been taken to ensure that proposed data-sharing is lawful. An example of a lawful gateway can be seen in section 122 of the Social Security Administration Act 1992. This provision empowers the Inland Revenue and the Commissioners of Customs and Excise to supply the Secretary of State for Work and Pensions with information for use in connection with the prevention of social security offences or for checking the accuracy of social security information.

Another example is section 115 of the Crime and Disorder Act 1998 which authorises any person to provide information to the police, local authorities, probation authorities, health authorities in connection with the purposes of that Act.

Many other acts of parliament create gateways for the passing of data from one body to another. One of the main gateways is strangely the Data Protection Act 1998 which permits disclosure of personal data where it is required by any enactment, by any rule of law or by any order of the court.

However there is no specific power for public bodies to buy paperclips.

This came to a head with the debate about re-use of council tax data for other purposes such as debt recovery and the verification of entitlement to benefits and concessions. After taking a leading Counsels opinion the Data Protection Registrar in the late 90s opined that it was not lawful to use council Tax data for any other purpose other than Council Tax. Since then a series of equally eminent barristers have interpreted the legislation in a different way based on general powers hidden in ancient acts such as section 111 (1) of the Local Government Act 1972 that provides that a local authority ‘shall have power to do any thing ? which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their statutory functions’.

Similarly Section 2 (1) of the Local Government Act 2000 that provides that a local authority shall ‘have power to do anything which they consider is likely to achieve any one or more of the following objects – (a) the promotion or improvement of the economic well-being of their area; (b) the promotion or improvement of the social well-being of their area; (c) the promotion or improvement of the environmental well-being of their area’.

The issue is complicated by the recent arrival in UK courts of the Human Rights Act. Previously reserved for mainland europe for the last 3 years individuals have been taking action in the courts to protect their image, their home, their children from intrusive photography or journalism. As well as famous people flattering their egos some ordinary human beings have taken exercised article 8 and their right to respect for their home their family life etc.

Unfortunately Article 8 is a qualified right and although many claim it not all are granted.

Down at the chalk face however there is a general assumption that if an individual consents to their data being used by one public sector body that it will be shared by others. The sectors of Health, Education, Police and The Council are considered by many to be actively sharing data. Those most in need of public services don’t have the time to debate their qualified right to privacy or the powers of one public body to share data with consent – they just want their service delivering on time.

Leading commentators feel the rush to share data even with consent does not sit comfortably with the rights of the individual.

This paper will consider how these tensions can be resolved.

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