Joint Committee on Human Rights First Report

F. Part 2 of the Bill: Disclosure of information for the purposes of criminal investigations

58. Clauses 47 and 49 of, and Schedule 1 to, the Bill would allow a very large number of public authorities (those listed in Schedule 1, plus the Inland Revenue and Customs and Excise) to disclose information for the purposes of any criminal investigation or criminal proceedings whatever, whether in the United Kingdom or elsewhere, or for the purpose of initiating such investigation or proceedings, or bringing them to an end, or facilitating a determination of whether it or they should be initiated or brought to an end.[79] The kinds of information held by the bodies concerned may be highly sensitive and personal, including information about health, disabilities, income and wealth, family ties, creditworthiness, education, indebtedness, sexuality, legal proceedings, utilities bills and service use, and business activities.

59. Like other provisions for sharing information between agencies, such as those proposed in the Social Security Fraud Bill currently before Parliament, these engage the right to respect for private and family life, home and correspondence under Article 8.1 of the ECHR. They also engage the right to privacy under Article 17 of the ICCPR. As a matter of European Community law, they must meet the demands of the EC Data Protection Directive 95/46,[80] which the Data Protection Act 1998 implements. The Directive expressly refers to privacy as one of the core values underpinning it. Clauses 47(6) and 49(6) of the Bill provide that the clauses do not authorise any disclosure which would be prohibited by the Data Protection Act 1998. There is also an extensive range of international 'soft law', i.e. standards promulgated by international institutions or through inter-state agreement which are not binding on states as a matter of international law, but which may be relevant to the interpretation of the State's binding legal obligations.

60. Article 8.1, as interpreted by the European Court of Human Rights, imposes obligations on public authorities in respect of the collection, storage, processing and disclosure of information about identifiable individuals, even if the information relates to their public and political activities. At each stage in the process of dealing with information, its gathering, storage, processing or disclosure must be justifiable. Public authorities also have an obligation to make personal records accessible to the individuals to whom they relate, unless withholding them can be justified. Some types of information (particularly health records and information about intimate sexual behaviour) are entitled to an especially high level of protection.

61. There are aspects of clauses 47 and 49 which gave rise to concern about their compatibility with ECHR Article 8.[81] In particular:

(a) the range of types of information which can be demanded is unspecified, and there is no requirement that there should be reasonable grounds for suspecting either that it would be relevant to an inquiry or that the data subject has committed any offence. This makes it possible that the clauses might deprive some people of the essence of the right under Article 8, and that the interference might be insufficiently delimited to satisfy the requirement of certainty which forms part of the notion of an interference being 'in accordance with the law';

(b) the absence of any requirement for a pre-disclosure assessment to be made of the proportionality of disclosing information on a particular individual, the possibility of making disclosures in respect of any offence (however minor), the very wide power to make disclosures 'for the purpose of initiating ... any such investigation or proceedings, or of facilitating a determination of whether it or they should be initiated...',[82] and the absence of any independent, prescribed procedure for making such an assessment, all make it difficult to be satisfied that any disclosure will be 'necessary in a democratic society' within the meaning of Article 8.2.

62. Other rules, which normally offer safeguards against improper disclosure of personal information in breach of privacy-related rights, do not apply. The protection of the 'fair and lawful dealing' principle under the Data Protection Act 1998 is limited where a case involves a criminal investigation. Section 29(3) of the Act broadly exempts data being dealt with for the prevention and detection of crime or the apprehension or prosecution of offenders, where the application of the data protection principles would be likely to prejudice any of those purposes. It is not clear that this leaves room for those objectives to be balanced against the data subject's rights and other interests, as ECHR Article 8.2 seems to demand.[83] Furthermore, there is judicial authority for the proposition that the protection offered by the common law and equitable doctrine of breach of confidence does not apply to disclosures between police forces for the purpose of performing their duties, even if the disclosure fails to meet extra-legal guidelines issued by the Home Office.[84]

63. The Government pointed out that clauses 47 and 49 do not compel the holder of information to disclose it on request. In addition, it should be possible to rely on investigators in the United Kingdom acting in good faith, and not requesting information for improper purposes.[85] However, we were concerned that information might be requested from, or become accessible to, private persons or bodies not subject to the obligations imposed on public authorities by ECHR Article 8 under the Human Rights Act 1998. We were also concerned that enabling disclosures of information in connection with any criminal investigation, however trivial the suspected offence, would make it difficult to ensure that the powers are used in a proportionate way.

64. In his oral evidence to us, the Minister identified three provisions under which disclosures might be requested from someone who might not be a public authority.[86] Subsequently, after further consideration, the Government took the view that the only provision under which information could be requested from anyone other than a public authority was section 4 of the Electronic Communications Act 2000. That section is not in force, and the Government have no plans to bring it into force.[87] It will lapse if not brought into force within five years. The Government placed reliance on the Data Protection Act 1998 as a 'filter' for requests, and the need for a public authority to comply with the Human Rights Act 1998 and act in good faith and for a proper purpose when making a request for disclosure, assessing the lawfulness of disclosures on a case by case basis. In any case, the Government do not think it appropriate to ask private people or bodies to embark on making an assessment of proportionality, as they will not normally have the necessary information. In relation to disclosures by public authorities to other bodies, the Government noted in addition that there would be a duty to comply with the Human Rights Act 1998 in making any disclosure, and that criminal sanctions lie against those who make unauthorised disclosures.[88] The Government regard these various factors as sufficient safeguards against abuse of personal information concerning innocent people.[89]

65. In response to inquiries about the very wide range of bodies brought within the scope of the disclosure regime by Schedule 1 to the Bill, the Government replied that they preferred to include as many bodies as possible in order to avoid uncertainty as to the power of those bodies (including the Equal Opportunities Commission and the Commission for Racial Equality) to disclose information for the purpose of a criminal investigation or prosecution.[90]

66. We recognise the significance of these considerations. However, we remain concerned that the exemption from the operation of the Data Protection Act 1998, contained in section 29 of that Act, and the possible weakness of the common law protection against unauthorised disclosure of personal information as seen in a recent judicial decision,[91] might undermine the adequacy of safeguards for ECHR Article 8 rights in a field of activity (criminal investigation) which is by its nature secretive and not readily open to scrutiny. There is a need to introduce adequate safeguards into this legislation. Consideration should be given to amending these provisions to include, as noted above, a requirement that there should be reasonable grounds for suspecting that the information in question would be relevant to a criminal inquiry or that the data subject has committed an offence, and a requirement that a pre-disclosure assessment be made of the proportionality of disclosing information on a particular individual in the context of the offence in question. Consideration should also be given to limiting the very wide power to make disclosures 'for the purposes of initiating ... any such investigation or proceedings.' We draw the attention of each House to these provisions, and consider that necessary safeguards should be provided to ensure that they are compatible with the right to privacy.

79   Clauses 47(2), 49(2). Back

80   [1995] OJ L281/31. Back

81   See for example the note on clauses 47 and 49 in the briefing by Liberty for the Second Reading of the Bill in the House of Commons, reprinted in Annex B to the Committee's First Special Report. Back

82   Clauses 48(2)(c) and 50(2)(c). Back

83   See also Data Protection (Processing of Sensitive Personal Data) Order (SI 2000 No. 417); R. (A.) v. Chief Constable of C. [2001] 1 WLR 461. Back

84   R. (A.) v. Chief Constable of C. [2001] 1 WLR 461, referring to Home Office Circular 9/93, Protection of Children: Disclosure of Criminal Background of Those with Access to Children (although it is not clear from the report whether any argument based on the doctrine of legitimate expectation was addressed to the judge). Back

85   Home Office Memorandum, para. 71. Back

86   Water Industry Act 1991, s. 206; Water Resources Act 1991, s. 204; Electronic Communications Act 2000, s. 4 (oral evidence, answer to Q. 38). Back

87   Home Office Supplementary Memorandum, para. 19. Back

88   Oral evidence, answer to Q. 38; Home Office Supplementary Memorandum, paras. 19-27. Back

89   Home Office Supplementary Memorandum, para. 28. Back

90   Home Office Supplementary Memorandum, paras. 29-33. Back

91   R. (A.) v. Chief Constable of C. [2001] 1 WLR 461. Back

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