On 19 January I sent the following letter to my MP via WriteToThem:
Dear Alan Williams,
It has come to my attention that a Bill is being pushed through Parliament, namely the Coroners and Justice Bill, containing a clause, namely clause 152, amending the Data Protection Act (DPA). This clause would create a new type of order, Information Sharing Orders, which is explicitly a loophole in the data-sharing restrictions in the DPA that essentially render it meaningless.
Specifically, the extra clause 50B(1) enables department heads to relax or tighten any restriction on information sharing at its convenience. Given the Government's inexcusable losses of individuals' private records, for example its loss of CDs in the post containing the unencrypted details of millions of Child Benefit claimants, I no longer trust the government to keep my data private. I certainly cannot accept any law which would allow my data to be shared with anyone the Government chooses, which is what this amendment amounts to.
The added clause 50B(1)(d) also allows an Information Sharing Order that amounts to a gagging order, apparently without restriction. This makes moot the Prime Minister's decision the other day not to hold a vote on the Bill which would have enabled MPs to conceal their expenses, an issue on which I have already written to you in protest.
Of even more concern is clause 50B(2), which would allow the head of any Government department to create new summary offences by order. This makes a mockery of the rule of law and demonstrates the Government's contempt of it. If this bill passes intact, I shall have to emigrate as the UK will no longer be somewhere I can feel safe. In a liberal democracy the government should live in fear of its citizens, not the other way around.
The Coroners and Justice Bill simply cannot pass as it is now. It must be amended to remove clause 152, or it will no longer be possible to call the United Kingdom a liberal democracy which values the rule of law.
He forwarded the letter to Jack Straw, Lord Chancellor and Secretary of State for Justice, and got the following reply (written on 17 Feb), which he forwarded to me by post (on the 19th; it arrived today).
Dear Alan, [handwritten]
MR PETER BERRY, [address redacted]
Thank you for your letter of 23 January on behalf of your constituent, Mr Peter Berry, who is concerned about the Coroners and Justice Bill, and in particular the Government's proposals to introduce new data sharing powers.
The proposal to introduce a power to create a new data sharing gateway stems from the recommendations of the Data Sharing Review, conducted independently by the Information Commissioner, Richard Thomas and Dr Mark Walport of the Wellcome Trust. The Review was commissioned by the Prime Minister in October 2007 to consider, amongst other things, how data sharing policy should be developed to ensure proper transparency, scrutiny and accountability. The Government believes it is vitally important that public trust in the handling of personal data must be maintained and the privacy of citizens protected. At the same time, data sharing between Government departments is essential in providing (and improving) customer-focussed public service delivery and also ensures individuals get the services they require. It is a matter of balance: whilst there are occasions where data sharing may not be appropriate (in order to protect individuals' privacy, for example), there are occasions where not sharing data may cause considerable harm.
The Data Sharing Review report was published on 11 July 2008 and included several recommendations for changes to the legal framework surrounding data sharing. The Review noted that while legal uncertainty and confusion are significant barriers to sharing, there have also been instances when legitimate data sharing schemes have been prevented due to legal obstacles.
In its response to the Review, published in November 2008, the Government broadly welcomed the report and agreed with the Review's recommendation to introduce a new statutory fast-track procedure for instances where there is a genuine case for removing or modifying an existing legal barrier to data sharing. The Government proposes to amend the DPA so that a statutory instrument procedure is created that will permit the sharing of personal information between persons or bodies, so long as a robust case can be made for the sharing to take place.
The sharing of personal data between Government departments in a secure and appropriate manner is essential to protect the public and to deliver public services. In recent years, data sharing has helped the most vulnerable in society, for example by identifying elderly people needing support with fuel payments, children who qualify for free school meals, and those eligible for assistance in switching over to digital television. The proposed data sharing gateway would assist with the continued delivery of the protection and services expected of Government, with the ability to respond more effectively to quickly changing situations. These could involve the detection of fraud and other forms of organised crime, or respond to health epidemics and natural disasters.
I understand Mr Berry's concerns and I assure him that the Government takes the protection of personal information seriously. Data sharing must be justifiable, proportionate and only undertaken when proper safeguards are in place.
Mr Berry may be reassured to know that the proposed new data sharing powers are combined with important safeguards. The Government plans to make any order wishing to use this new data sharing gateway subject to debate in both Houses of Parliament (through the affirmative resolution procedure), so that Parliament will have to apprive [sic] every proposal. In addition, every proposal to share personal information using this new gateway will be subject to scrutiny by the Information Commissioner. The Commissioner may report on whether he is satisfied that the sharing of information enabled by the order is necessary to secure a relevant policy objective, that the effect of the provision made by the order strikes a fair balance between the public interest and the interests of any person affected by it. Proposals must further be accompanied by a Privacy Impact Assessment (PIA). A PIA will describe the initiative and analyse the proposal's implications for privacy and data protection, as well as benefits for individuals and the general public. The Government believes these measures will ensure individuals' rights are fully maintained and protected.
The power to permit data sharing would be an exercise of a minister's functions and, as with all other such matters, remain judicially reviewable. Consequently the power must be exercised within the terms of Articles 6 and 8 of the European Convention on Human Rights. While the power is capable of providing a legal basis for sharing where common law confidentiality and public law would otherwise prohibit it, the proposed power is to be structured in such a way that exemptions from common law and public law prohibitions will only be possible where it is necessary, proportionate and an effective balance between the public interest and the private interest of those affected has been achieved. I appreciate concerns that protections afforded by other laws may be set aside, however these safeguards ensure that this will not occur. Protection of the private personal information of individuals is paramount and the proposed power will only be capable of being put into effect where this principle is fully respected.
I trust that this information is helpful and I enclose a copy of this letter for you to forward to Mr Berry, should you wish to do so.