Joint Committee On Human Rights Appendices to the Minutes of Evidence

4.  Memorandum from the Information Commissioner


  The Information Commissioner has the dual responsibility for enforcing data protection and freedom of information legislation.

  The Data Protection Act 1998 (the 1998 Act) replaced with effect from 1 March 2000 the Data Protection Act 1984 (the 1984 Act). The Act gives rights to individuals and places obligations on data controllers to be open about how information about individuals is used and to follow eight principles of good information handling practice.

  The Freedom of Information Act 2000 (the 2000 Act) gives, subject to exemptions, a general right of access to all types of "recorded" information held by public authorities subject to exemptions. Implementation will be gradual; however, it must be brought fully into force by 30 November 2005.


  UK Data protection law was initially defined by the Data Protection Act 1984 which enabled the UK to ratify the 1981 Council of Europe Data Protection Convention (European Treaty Series 108). Convention 108 exists to secure a balance between the right to privacy and the right to freedom of expression found in Articles 8 and 10 of the European Convention on Human Rights. Article 1 of the Convention gives its purpose as:

    ". . . to secure . . . for every individual . . . Respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him (`data protection')."

  This human rights background has been further strengthened by the European Union Data Protection Directive (95/46/EC). The 1998 Act which repealed the 1984 Act reflects the requirements laid down in this directive. Article 1 of the directive provides that:

    "In accordance with this directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data."

  More recently the European Union recognised not only the right to respect for private life but also specifically the right to protection of personal data in Articles 7 and 8 of The Charter of Fundamental Rights of the European Union (the Nice Charter).

  Although UK Freedom of Information legislation was not developed from specific requirements of European or International Human Rights instruments, the law is fundamentally related to freedom of expression and the notion of a democratic society. But it is particularly noteworthy that Article 42 of the Nice Charter gives an explicit right of access to European Parliament, Council and Commission documents.

  It is clear that both the 1998 Act and the 2000 Act fall within the Human Rights domain and proposals for a Human Rights Commission would therefore have significant consequences for the Commissioner and the legislation she enforces.

  Data Protection and Freedom of Information should not be seen as opposed to each other. However, there may be occasions where an acceptable balance will need to be found between the competing values of freedom of information and personal privacy. Having a joint Commissioner for both pieces of legislation has a particular administrative benefit in allowing an integrated and coherent approach to information handling.

  We welcome the Human Rights Act 1998 because it places the present legislation that falls within the responsibility of the Information Commissioner, in an appropriate and relevant context. The Human Rights Act is a particularly relevant aid to interpreting both pieces of legislation because of their specific origins in human rights instruments.


  3.0  The subsequent paragraphs follow the numbering of the questions in the Committee's Call for Evidence.

  3.1  There is certainly some merit in establishing a Human Rights Commission. Whilst there is some debate about the limit of its powers, a Commission would be in a position to co-ordinate the views and activities of existing bodies that have a responsibility for the protection of some aspects of human rights. An appropriate initial approach may be to start off with a relatively small brief. Possibly with the Commission addressing particular problem issues, assisting in the creation of a human rights culture and carrying out an educational role. The Commission should not act primarily as an enforcement body but by bringing legal proceedings that concern the wider public interest it could help to test or clarify the law. A distinction will need to be drawn between cases that support this strategy and others, to ensure that public funding is used effectively. A Commission with full enforcement powers might prove expensive and may duplicate the work already covered by other agencies.

  3.2  If a Human Rights Commission were established, it should work collaboratively with the Committee reporting to Parliament, but the Commission should be an independent statutory body with the necessary powers and finance to carry out a high profile public role. One of its purposes would be to play an advisory role to the Committee, allowing the Committee to draw on the expertise of the members of the Commission.

  3.3  The priority of a Human Rights Commission should be to raise the profile of human rights in the UK by carrying out an educational and culture development role. The main focus should be establishing a culture of human rights rather than becoming involved in the legal processes, except perhaps as explained in the answer to question 1.

  The strategy of the Information Commissioner is to seek to promote best practice by advice and education. If a Human Rights Commission were to be set up, this modus operandi would appear a most appropriate use of resources and may prevent the need for later enforcement.

  3.4  If the Commission is to be seen as a public body assisting the development of democratic culture and working with Parliament there is an argument for similar bodies working with each of the devolved Parliaments or Assemblies.

  3.5  We would expect all the Commissions to have wide functional, if in some cases territorially limited, jurisdiction. The Commissions should agree between themselves which should lead on particular issues and cases.

  3.6  The Commission should be established as an umbrella organisation, where existing bodies would retain their own jurisdictions but be brought within the umbrella of the Commission. The umbrella body would provide an opportunity for co-operation between existing organisations, thus avoiding potential conflicts and providing a framework for the sharing of views. Its purpose would be to provide a forum for discussion and to enhance the effectiveness of these organisations, not to take over specialist areas that are already well established. The primary advantages of a Commission would, on the one hand, be a means of developing thinking on matters relating to fundamental rights and of giving Parliament authoritative advice. On the other hand it would be a means of bringing together and, if necessary, reconciling the work of those enforcing different aspects of fundamental rights. For example potential conflicts between privacy and freedom of expression.

  3.7  To maintain its independence and freedom of action to carry out its role effectively, the Commission should report to the Human Rights Parliamentary Committee rather than to Ministers. The staff would be appointed by the Commission itself, on conventional public sector terms. The majority of members should be drawn from those bodies under the umbrella of the Commission, but the Chair and extra members could be appointed in a number of different ways. Two possibilities might be:

    1.  Appointments could be made by arrangements presently common in a number of Francophone countries where they are drawn from nominations of other bodies such as Courts and Houses of Parliament; or

    2.  The North American approach could be adopted where these types of appointments are subject to confirmation hearings before Parliament, prior to the Chair and the members being finally approved. There is already in this country some precedent, for example, in the case of Parliamentary hearings for the appointment to the Monetary Policy Committee.

  3.8  A staff of 12-20 people would seem appropriate in view of how we envisage the Commission operating. These staff should be committed to high-level co-ordination, conducting or commissioning research, and carrying out the other functions of the Commission.

  The size of the annual budget would depend on the extent to which the Commission would be expected to undertake independent publicity and litigation.

  3.9  To reiterate much of what has been provided in our response to previous questions, we consider that initially the Commission should concentrate on promoting an awareness of human rights and good practice and for this purpose undertake research and educational activities. The idea of the Commission being treated as an enforcement body is, we consider, premature. However, the Commission should be able to initiate legal proceedings in cases that are considered in the public interest as previously described in question 1. The Commission should also be able to act as a amicus curiae to provide factual information and expert advice to the court in other cases.

27 June 2001

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