Information Sharing (Clauses
8 and 23)
1.22 Clause 8 provides for the creation of databases
containing information in respect of persons to whom arrangements
under clauses 6 or 7 of the Bill, and s. 175 Education Act 2002,[12]
relate. The Secretary of State is given power either to require
children's services authorities to establish and operate such
databases[13] or to establish
and operate one or more such databases him or herself, or make
arrangements for doing so,[14]
including by establishing a body corporate to establish and operate
such databases.[15]
1.23 Clause 8(3) gives the Secretary of State power
to make regulations to make provision in relation to the establishment
and operation of any such databases, including (clause 8(4)):
- as to the information which
may or must be contained in such database, including information
as to services provided to, or activities carried out in relation
to, the child or young person, and information as to the existence
of any cause for concern in relation to them;[16]
- permitting or requiring the disclosure of information
for inclusion in such database;
- permitting or requiring the onward disclosure
of information included in such database;
- permitting or requiring any person to be given
access to such database to add to or read the information.
1.24 The regulations may also provide that anything
which may or must be done under the regulations must or may be
done notwithstanding any rule of common law which prohibits or
restricts the disclosure of information.[17]
1.25 The Secretary of State is given power to issue
guidance and directions to any person or body establishing or
operating such a database, who is under an obligation to comply
.[18] Such guidance and
directions can include the conditions on which access must or
may be given to a database.[19]
1.26 From a human rights perspective, it is an important
part of the State's positive obligation to secure Convention rights
to all those within its jurisdiction that its laws facilitate
the sharing of information about individuals to the extent that
this is necessary to protect their Convention rights (including
where necessary against interference by other individuals). Some
provision in national law for information sharing concerning children
and young people is therefore required by the positive obligations
imposed by human rights law.
1.27 However, there is an important countervailing
privacy interest at stake: the sharing of any personal information
is an interference with Article 8 ECHR which requires justification.[20]
Children prima facie enjoy the benefit of the protection
in Article 8, even though obviously the younger or more vulnerable
the child the weightier is likely to be the justification for
any interference with that right under Article 8(2). But the less
vulnerable the child, and in particular the more mature they are,
the more is likely to be required by way of justification for
the interference.
1.28 The Explanatory Notes acknowledge that the creation
of databases containing personal details of all children may constitute
an interference with Article 8 rights, but asserts that the interference
is proportionate and justified under Article 8(2).[21]
No reasoning is offered to elaborate on this single sentence assertion
that the interference with Article 8 is proportionate.
1.29 It is impossible for us to make any judgment
about the proportionality of what will undoubtedly constitute
an interference with Article 8 rights in the absence of more detail
about what is proposed. We are concerned that the sheer breadth
of the authority clause 8 proposes to confer on the Secretary
of State to interfere with Article 8 rights, without any indication
of the provision which will be made in relation to a large number
of crucial questions including
- What is the purpose of keeping
the information in the proposed databases?
- Whose personal information will be able to be
included on the database?
- What kind of information will be included on
the database?
- What is included in "information as to services
provided to" a child in clause 8(5)(a)? Is this confined
to specialist services provided to particularly vulnerable children,
such as special educational need provision or psychiatric intervention,
or does it include ordinary services such as health and education?
- What is meant by the broad phrase "information
as to activities carried out in relation to" a child in clause
8(5)(a)?
- What is meant by "any cause for concern"
in relation to a child in clause 8(5)(b)?
- How is it proposed to confine the recording of
a cause for concern to the mere existence of such a cause for
concern rather than its nature?
- In what circumstances may or must information
be disclosed to those compiling the database? What will be the
criteria determining when such disclosure is permitted or required?
- In what circumstances may or must information
on the database be disclosed onwards? What will be the criteria?
- To whom will such disclosure be made?
- Who will be given access to the database?
- What will be the criteria for determining the
level of access given to the database?
- What sorts of conditions will it be possible
to impose on access to the database, or the use of information
on the database?
- How long will data on the database be retained?
- To whom is it proposed to delegate the Secretary
of State's discretion as to what may or must be done under the
regulations (clause 8(6)). Will that person be regarded as a functional
public authority for the purposes of the Human Rights Act1998?
- What is the proposed relationship between this
legislation and the Data Protection Principles in the Data Protection
Act 1998?
1.30 The Explanatory Notes[22]
claim that clause 8 sets out "the principles that would govern
information sharing using the information databases", and
that the regulations will deal with "detailed operational
requirements". In fact, clause 8 contains very few "principles"
which would regulate the use of the proposed databases. Virtually
all of the key questions which must be asked in order to assess
for compatibility with Article 8 ECHR are left unanswered, to
be dealt with in the regulations.
1.31 We have written to the Minister asking what
the justification is for not dealing with the details of the proposed
database in primary legislation, and for answers to the above
questions. We draw this matter
to the attention of each House.
Reasonable chastisement defence
1.32 In our Report on the UN Convention on the Rights
of the Child, the Committee concluded, after taking evidence on
the issue and careful consideration of the arguments, that the
failure to replace or repeal the defence of reasonable chastisement
was incompatible with the UK's obligations under the CRC.[23]
The Bill does not include any provision abolishing the defence
of reasonable chastisement. However, the Government has indicated
that it is prepared to give careful consideration to any amendment
brought forward on this issue and to consider allowing a free
vote at the relevant stage of the Bill.[24]
The Government's stated concern is that it does not want to interfere
with the right of parents to punish their children appropriately,
and it has said that it will not support any amendment which constitutes
a ban on smacking children.
1.33 We are concerned that the failure to remove
the reasonable chastisement defence is in breach of the UK's obligation
under Article 46 ECHR to abide by final judgments of the European
Court of Human Rights. The decision in A v UK gives rise
to an obligation on the UK to adopt general measures to prevent
a repetition of the violation found in that case.
1.34 We have written
to the DPP to ask if it his view that minor cases of smacking
would not be prosecuted because they would not satisfy the public
interest test.[25] We
have also asked the Minister for the justification for not including
in the Bill a short provision simply abolishing the common law
defence of reasonable chastisement, in the interests both of legal
certainty and of complying with the Strasbourg judgment in A
v UK. We draw this matter
to the attention of each House.
1.35 We will report further on the Bill in the light
of the Government's response to the questions set out above.
1 Minutes of Evidence, 20 April 2004, HC 537-i Back
2
See letter from the Chair, Appendix 1a Back
3
Cl. 1(1) Back
4
Cl. 2(1) Back
5
Cl. 2(2) Back
6
Baroness Ashton, HL Deb., 30 March 2004, cols. 1302-3 (emphasis
added). Back
7
Ibid at col. 1303 Back
8
HL Deb., 4 May 2004, col. 1060 Back
9
UN Committee on the Rights of the Child General Comment 2 (2002),
The Role of Independent National Human Rights Institutions in
the Protection and Promotion of the Rights of the Child, 15 November
2002, explaining the scope of the obligation under Article 4 CRC
to "undertake all appropriate legislative, administrative
and other measures for the implementation of the rights recognised
in the present Convention." Back
10
Minutes of Evidence, 20 April 2004, HC 537-i, QQ 26-29 Back
11
Tenth Report of Session 2002-03, The UN Convention on the Rights
of the Child, HL Paper 117, HC 81, at para. 25 Back
12
Duty on LEAs and governing bodies of maintained schools to make
arrangements for ensuring that their respective functions are
exercised with a view to safeguarding and promoting the welfare
of children. Back
13
Cl. 8(1)(a) Back
14
Cl. 8(1)(b) Back
15
Cl. 8(2).Cl. 23 confers a similar power on the National Assembly
for Wales, subject to Assembly procedures. Back
16
Cl. 8(5) Back
17
Cl. 8 (7) Back
18
Cl. 8(8) Back
19
Cl. 8(9)(a) Back
20
See e.g. M.S. v Sweden (1997) EHRR; R (Robertson) v
City of Wakefield MC [2002] 2 WLR 889 (disclosure of details
on the electoral roll). Back
21
EN para. 209 Back
22
Para. 51 Back
23
Tenth Report of Session 2002-03, The UN Convention on the Rights
of the Child, HL Paper 117, HC 81 at paras 94-111. Back
24
Baroness Ashton, HL Deb 30 March 2004, col. 1308 Back
25
See Appendix 1b Back
