Joint Committee On Human Rights Twenty-Sixth Report

5. Letter from the Legal Adviser to Mark Francois MP


As part of its function to consider human rights in the United Kingdom, the Joint Committee on Human Rights examines all bills introduced to either House with a view to reporting to each House on their compatibility with Convention rights under the Human Rights Act 1998, and with other rights which arise in international law under human rights instruments by which the United Kingdom is bound. The Committee is considering whether to report to each House on the Data Protection (Amendment) Bill. It has carried out an initial examination of this Bill, and would be grateful for your comments on the following points raised by its Legal Adviser. I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Human Rights Act 1998.

As you know, the Bill would amend the Data Protection Act 1998 by inserting a new section 35A into the Data Protection Act 1998. This would exempt data controllers from obligation of non-disclosure in respect of personal information under the Data Protection Act 1998 when "information is requested by a Member of Parliament pursuing casework inquiries on behalf of a named constituent."[14] The Bill contains no definition of "casework inquiries". This gives rise to a significant human rights issue, as the Data Protection Act 1998 was designed to give effect to an appropriate level of protection to meet the requirements of Article 8(1) together with the EC Data Protection Directive, which itself (as its Preamble makes clear) was intended to provide effective protection for rights in personal information against disclosure in circumstances which you violate Article 8.

Disclosure of personal information pursuant to the proposed new section 35A of the 1998 Act would engage the right to respect for private life under ECHR Article 8(1). An interference with that right would be justifiable under Article 8(2) if (a) in accordance with the law, and (b) necessary in a democratic society for a purpose permitted under Article 8(2). The terms of the proposed new section 35A would be likely to be sufficiently clear and accessible to meet the test of being "in accordance with the law". However, the Bill does not make clear the legitimate aim under Article 8(2) which any disclosure under proposed new section 35A would have to pursue. As a result, the proposed provision seems to give rise to a serious risk that the Bill would purport to authorise an interference with Article 8 rights which would be unjustifiable and incompatible with those rights.

Even if the aim, in a particular case, were legitimate under Article 8(2), it would be necessary to show that there was a pressing social need for the disclosure and that it was a proportionate response to that need. The Bill does not seek to limit disclosures in a way that would provide an adequate safeguard against unnecessary or disproportionate disclosures. For example, there is no restriction to cases where there are reasonable grounds to believe that the disclosure would provide evidence of crime, or would enable anyone to protect their rights, or would advance a powerful and pressing national interest; nor is there any procedure for an independent body to determine the need for and proportionality of the disclosure in each case before the disclosure is made.

The Committee would be grateful for any comments that you may wish to make on these reflections on the compatibility of the Bill with human rights. The Committee understands the difficulties which the sponsors of private members' bills, with limited resources, often face in responding to questions from the Committee about the human rights implications of their bills. Nevertheless, without suggesting that you are under any obligation to respond to its concerns, the Committee would of course give full weight to any representations which you might wish to put before it.

If you wished to submit a response, the Committee would appreciate receiving it by Friday 4 October.

24 July 2002

14   Clause 1, inserting a new s. 35A(1) into the Data Protection Act 1998 Back

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