Disclosure
of information
2.15 Clause 23 would allow a person to disclose private
information to anyone bound by the proposed code of practice on
victims and witnesses, or to a local probation board, or to the
Commissioner for Victims and Witnesses, or to an authority within
the remit of the Commissioner, for the purpose of—
a) complying with the code of practice; or
b) complying with the duties of local probation
boards in relation to victims of certain offences; or
c) helping the Commissioner to carry out his
or her functions.
2.16 Clause 23(7) provides that a person who makes
the disclosure would not be taken to breach any restriction on
the disclosure of information, however imposed. Clause 23(8) then
says: "But nothing in this section authorises the making
of a disclosure which contravenes the Data Protection Act 1998
(c. 29)".
2.17 In our view, this form of drafting could make
it possible for a person to make a disclosure which violates the
right to respect for private and family life, the home and correspondence
under ECHR Article 8. By allowing any disclosure despite any restriction
(however imposed), subject only to the express exception of disclosures
which would contravene the Data Protection Act 1998, the combined
effect of clause 23(7) and (8) seems to us to be that the Bill
limits the duty of public authorities under section 6(1) of the
Human Rights Act 1998 to act in a manner compatible with Convention
rights.
2.18 We are very concerned about this provision of
Clause 23. In the past, the Government has declined to include
in Bills provisions expressly making powers of public authorities
subject to the duty to act in a manner compatible with Convention
rights under section 6 of the Human Rights Act 1998. The Government
has in these cases argued that identifying that duty expressly
would tend to imply that the duty is not to apply when it is not
expressly mentioned. Here, we have the reverse effect: by expressly
preserving duties under the Data Protection Act 1998 while excluding
all other duties of non-disclosure, clause 23(7) and (8) of the
Bill seem to exclude the applicability of duties of non-disclosure
arising under the Human Rights Act 1998. We have already expressed
our concern in the case of clause 10 of the Asylum and Immigration
(Treatment of Claimants, etc.) Bill.##eb##[35]
We draw to the attention of each House our deep concern about
the provisions of clause 23 of the Domestic Violence, Crime and
Victims Bill which could restrict the operation of the Human Rights
Act 1998 and set a dangerous precedent.
2.19 On the other
hand, with regard to the substantive effect of clause 23 on human
rights, we consider that the Data Protection Act 1998 is likely
to be able to provide any necessary protection for the right to
respect for private life, etc., under ECHR Article 8.1, because—
a) all recorded personal information is subject
to the regime of the Data Protection Act 1998;
b) unlike the Human Right Act 1998, the Data
Protection Act 1998 applies directly to bodies which are not public
authorities as well as those which are; and
c) the exemptions in the Data Protection Act
1998 from compliance with the data protection principles in relation
to criminal investigations and prosecutions would probably not
apply to the disclosure of information for the incidental purposes
covered by clause 23.
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