EUROPEAN CONVENTION ON HUMAN RIGHTS

250.     The department has assessed the compatibility of the provisions in the Bill with the European Convention on Human rights (ECHR).

251.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Chancellor of the Exchequer has made the following statement:

"In my view the provisions of the Statistics and Registration Service Bill are compatible with the Convention rights."

The transfer of the conduct of population censuses (the Bill transfers this function from the Registrar General to the Statistics Board)

252.     Clause 23 transfers the current census functions of the Registrar General in relation to the preparation of population censuses to the Statistics Board. This clause transfers to the Board the functions of the Registrar General without substantive amendment. The functions being transferred are compatible with the European Convention on Human Rights ¹⁴.

¹³ In X v United Kingdom (1982) the Commission was asked to make a decision on the admissibility of an application that the obligation for a householder to complete a census form is an interference with the Article 8 right. The Commission concluded that where the information gathered by the census is treated with care and confidentiality the interference thereby occasioned with the applicant's right to respect for his private and family life is necessary in a democratic society, in the interests of the economic well-being of the country.

The Board's power to use and disclose information

253.     The Board will obtain the benefit of gateways authorising the disclosure of personal information to the current ONS, which will cease to exist when the Board is set up. In addition the Bill will establish certain new gateways that will provide for information to flow to and from the Board, both directly on the face of the Bill and by providing for the Treasury to make regulations permitting the introduction of new gateways.

254.     The provisions on use and disclosure of information by the Board raise privacy issues under Article 8 ECHR (right to privacy) but each gateway established in this Bill or transferred from ONS to the Board is formulated with sufficient precision to enable the individual to foresee the way in which information held by the Statistics Board may or may not be used and is justified as in accordance with one or more of the legitimate aims specified in Article 8(2).

The information sharing supplementary powers

255.     The clauses setting out supplementary information sharing powers (clauses 42 to 48) do not themselves raise Article 8 issues. However any power to make regulations creating new gateways will itself need to be exercised in a manner consistent with the Human Rights Act 1998. Any regulations made under the Bill when it is enacted, therefore, will need to be formulated with sufficient precision to enable the individual to foresee the way in which information held by the Statistics Board may or may not be used and is justified as in accordance with one or more of the legitimate aims specified in Article 8(2). Regulations made under these powers will only authorise disclosure of information for statistical purposes and require affirmative resolution clearance.

Safeguards to enhance Article 8 rights

256.     The Bill also provides express safeguards to ensure that the use of information by the Board will be in compliance with Article 8.

257.     The Bill introduces a new statutory duty in clause 36 which restricts the Board (and those to whom the Board discloses information directly or indirectly) from disclosing personal information other than in the circumstances set out in subsection (4). This new duty, that did not apply to ONS, enhances the protections accorded to Article 8 rights. The Bill further provides (clause 36) that it will be a criminal offence to disclose that information which is subject to the statutory duty where individuals may be identified from that disclosure, unless the disclosure was made for a lawful purpose.

258.     The Bill expressly provides that other enactments dealing with fair processing of information will apply to the Board, in particular the Data Protection Act 1998 and the Human Rights Act 1998. It also expressly provides that the power to make regulations to allow information to be shared with or by the Board requires (as appropriate) the Treasury, the Scottish Ministers, the Welsh Minister and the Northern Ireland department to be content that the disclosure of the information is in the public interest. Any regulations made under clauses 44 to 51 are subject to affirmative resolution procedures.

Offence in Clause 34

259.     The creation of the criminal offence of unlawful disclosure in clause 34 also engages Article 5 (right to liberty) and Article 6 (right to fair trial). The offence in subsection (8) is considered to be compatible with Article 6 as the individual will be tried before an appropriate court with all the relevant protections to ensure a fair trial. The possibility of a custodial penalty for commission of the offence also engages Article 5; the saving in Article 5 (a) will apply in that imprisonment will follow only after conviction by a court.

ANNEX A: LIST OF ABBREVIATIONS

BCE          Boundary Commission for England

DEFRA     Department for Environment, Food and Rural Affairs

DPA          Data Protection Act

ESA          European System of Accounts

EU          European Union

FSA          Financial Services Authority

GP          General Practitioner

GRO           General Register Office

GSS          Government Statistical Service

HMRC          HM Revenue and Customs

IDBR          inter-departmental business register

ILGs           index-linked gilt-edged securities

IT           Information Technology

PAYE          pay as you earn

MoU          Memorandum of Understanding

MPC          Monetary Policy Committee

NHS          National Health Service

NHSCR     National Health Service Central Register

NMD          Non-Ministerial Department

NS-SEC      National Statistics Socio-Economic Classification

ONS          Office for National Statistics

RDAs          Regional Development Agencies

RIA          regulatory impact assessment

RPI           Retail Prices Index

SIC          Standard Industrial Classification

SLA          Service Level Agreement

SOC           Standard Occupational Classification

TSC           Treasury Select Committee

VAT          value added tax

VML          Virtual Microdata Laboratory

ANNEX B: APPLICATION TO WALES