WRITTEN ON January 25th, 2009 BY William Heath AND STORED IN Data nitwittery, Foundation of Trust, Official fibbing/bad stats, Transformational Government, What do we want?
This is a problem. Full text is below, but here’s the toxic clause para 152 of the proposed Coroners and Justice Bill and what it would add to the Data Protection act:
Subject to the following provisions of this Part, a designated authority may by order (an “information-sharing order” ) enable any person to share information which consists of or includes personal data. For the purposes of this Part “designated authority” means an appropriate Minister, the Scottish Ministers, the Welsh Ministers, or a Northern Ireland department; the Secretary of State, the Treasury, or any other Minister in charge of a government department.
No2ID spotted this; see OpenDemocracy’s comment here.
This means any Minister (hold in your mind here some of the mediocrities we’ve seen over the years) can spread this toxic soup of our shared personal details to any part of the public service without any further scrutiny or formality. It’s a terrible idea. It transforms the Data Protection Act, an imperfect measure which was meant to protect us, into a highly effective measure for bureaucratic intrusion into our lives. And it’s hidden away as para 152 in the bowels of legislation which appears to be about entirely different matters. What is an incoming Information Commissioner supposed to make of that?
Somewhere between this and IMP let us hope that we have hit the nadir of “database-state” policy in the UK. Deceptively introduced, probably illegal under EU law, patronising and insulting, this measure will be presented as helpful, efficient, supportive of those in most need (as if they didnt have as much right to dignity and privacy as everyone).
Can I say a word for No2ID here? It seems to me that they work harder, they’re smarter and more honest than all the policy officials in IPS, the Home Office and MoJ combined. They’re far more public-spirited, and vastly more deserving of medals and a public pension. How did we get to this state? I’m lost for Wibbies.
Coroners and Justice Bill
Coroners and Justice Bill
Part 8 — Data Protection Act 1998 (c. 29)100
152
Information sharing
(1)
After section 50 of the Data Protection Act 1998 (c. 29) insert—
“Part 5A
Information Sharing
5
50A
Power to enable information sharing
(1)
Subject to the following provisions of this Part, a designated authority
may by order (an “information-sharing order”) enable any person to
share information which consists of or includes personal data.
(2)
For the purposes of this Part—
10
“designated authority” means—
(a)
an appropriate Minister,
(b)
the Scottish Ministers,
(c)
the Welsh Ministers, or
(d)
a Northern Ireland department;
15
“appropriate Minister” means—
(a)
the Secretary of State,
(b)
the Treasury, or
(c)
any other Minister in charge of a government
department.
20
(3)
For the purposes of this Part a person shares information if the
person—
(a)
discloses the information by transmission, dissemination or
otherwise making it available, or
(b)
consults or uses the information for a purpose other than the
25
purpose for which the information was obtained.
(4)
A designated authority may make an information-sharing order only if
it is entitled to make the order by virtue of section 50C and it is
satisfied—
(a)
that the sharing of information enabled by the order is
30
necessary to secure a relevant policy objective,
(b)
that the effect of the provision made by the order is
proportionate to that policy objective, and
(c)
that the provision made by the order strikes a fair balance
between the public interest and the interests of any person
35
affected by it.
(5)
An information-sharing order must—
(a)
specify the person, or class of persons, enabled to share the
information;
(b)
specify the purposes for which the information may be shared;
40
(c)
specify the information, or describe the class of information,
that may be shared.
(6)
An information-sharing order may not enable any sharing of
information which (in the absence of any provision made by the order)
Coroners and Justice Bill
Part 8 — Data Protection Act 1998 (c. 29)101
would be prohibited by Part 1 of the Regulation of Investigatory
Powers Act 2000 (c. 23) (communications).
(7)
Nothing in this section (or any information-sharing order) is to be taken
to prejudice any power or duty to share information which exists apart
from this section.
5
50B
Information-sharing orders: supplementary provision
(1)
An information-sharing order may—
(a)
confer powers on the person in respect of whom it is made;
(b)
remove or modify any prohibition or restriction imposed
(whether by virtue of an enactment or otherwise) on the sharing
10
of the information by that person or on further or onward
disclosure of the information;
(c)
confer powers on any person to enable further or onward
disclosure of the information;
(d)
prohibit or restrict further or onward disclosure of the
15
information;
(e)
impose conditions on the sharing of information;
(f)
provide for a person to exercise a discretion in dealing with any
matter;
(g)
enable information to be shared by, or disclosed to, the
20
designated authority;
(h)
modify any enactment.
(2)
An information-sharing order may provide for the creation of offences
triable either way which are punishable—
(a)
on conviction on indictment, by imprisonment for a term not
25
exceeding the specified period or to a fine or to both;
(b)
on summary conviction, by imprisonment for a term not
exceeding the specified period or to a fine not exceeding the
statutory maximum or to both.
(3)
In subsection (2)(a) and (b) “specified period” means a period provided
30
for by the order but the period must not exceed—
(a)
in the case of summary conviction, 12 months (or, in Northern
Ireland, 6 months), and
(b)
in the case of conviction on indictment, 2 years.
(4)
A designated authority making an information-sharing order must
35
ensure that any specified period for England and Wales which, in the
case of summary conviction, exceeds 6 months is to be read as a
reference to 6 months so far as it relates to an offence committed before
the commencement of section 282(1) of the Criminal Justice Act 2003
(increase in sentencing power of magistrates’ courts from 6 months to
40
12 months for certain offences triable either way).
50C
Designated authority: entitlement to make an information-sharing
order
(1)
An appropriate Minister is entitled to make an information-sharing
order only if the sharing of information enabled by the order is for the
45
purposes of—
(a)
in the case of the Secretary of State, any matter with which a
department of the Secretary of State is concerned;
Coroners and Justice Bill
Part 8 — Data Protection Act 1998 (c. 29)102
(b)
in the case of the Treasury, any matter with which the Treasury
is concerned;
(c)
in the case of any other Minister in charge of a government
department, any matter with which that department is
concerned.
5
(2)
Where more than one appropriate Minister is entitled to make an
information-sharing order by virtue of subsection (1), any one or more
of the appropriate Ministers acting (in the case of more than one) jointly
is entitled by virtue of this section to make the order.
(3)
The Scottish Ministers are entitled to make an information-sharing
10
order only if the sharing of information to which it relates consists of
one or both of the following—
(a)
the disclosure of information by a relevant Scottish body to
another such body where the information was held by the first
body in connection with its devolved Scottish functions and is
15
disclosed to the second body for the purposes of its devolved
Scottish functions;
(b)
a relevant Scottish body consulting or using information which
was obtained by it for the purposes of one or more of its
devolved Scottish functions for the purposes of any of its other
20
devolved Scottish functions.
(4)
The Welsh Ministers are entitled to make an information-sharing order
only if the sharing of information to which it relates consists of one or
both of the following—
(a)
the disclosure of information by a relevant Welsh body to
25
another such body where the information was held by the first
body in connection with its devolved Welsh functions and is
disclosed to the second body for the purposes of its devolved
Welsh functions;
(b)
a relevant Welsh body consulting or using information which
30
was obtained by it for the purposes of one or more of its
devolved Welsh functions for the purposes of any of its other
devolved Welsh functions.
(5)
A Northern Ireland department is entitled to make an information-
sharing order only if the sharing of information enabled by the order is
35
for the purposes of any matter with which that department is
concerned and that sharing consists of one or both of the following—
(a)
the disclosure of information by a relevant Northern Ireland
body to another such body where the information was held by
the first body in connection with its devolved Northern Ireland
40
functions and is disclosed to the second body for the purposes
of its devolved Northern Ireland functions;
(b)
a relevant Northern Ireland body consulting or using
information which was obtained by it for the purposes of one or
more of its devolved Northern Ireland functions for the
45
purposes of any of its other devolved Northern Ireland
functions.
(6)
Where more than one Northern Ireland department is entitled to make
an information-sharing order by virtue of subsection (5), any one or
more of those departments acting (in the case of more than one) jointly
50
is entitled by virtue of this section to make the order.
Coroners and Justice Bill
Part 8 — Data Protection Act 1998 (c. 29)103
(7)
In subsections (3) to (5) any reference to the sharing of information
enabled by the information-sharing order includes a reference to any
further or onward disclosure of information enabled by the order by
virtue of section 50B(1)(c).
50D
Consultation and Commissioner’s report on draft order
5
(1)
This section applies where a designated authority proposes to make an
information-sharing order.
(2)
The designated authority must—
(a)
issue a general invitation to make representations, in a manner
likely in the authority’s opinion to bring the invitation to the
10
attention of as large a class of affected persons who may wish to
make representations as is reasonably practicable, and
(b)
take account of any representations made.
(3)
The designated authority must submit a copy of the draft order to the
Commissioner.
15
(4)
The Commissioner may, within the 21-day period, submit to the
designated authority a report stating whether or not the Commissioner
is satisfied of the matters in section 50A(4)(b) and (c).
(5)
The designated authority may not lay the draft order before Parliament
in accordance with section 67 before—
20
(a)
the Commissioner submits a report under subsection (4), or
(b)
the end of the 21-day period,
whichever first occurs.
(6)
If the Commissioner submits a report under subsection (4) and the
designated authority proceeds to lay the draft order before Parliament,
25
the designated authority must at the same time lay a copy of the report
before Parliament.
(7)
In this section references to “Parliament” are to be read—
(a)
in the case of a proposal of the Scottish Ministers to make an
information-sharing order, as references to the Scottish
30
Parliament;
(b)
in the case of a proposal of the Welsh Ministers to make an
information-sharing order, as references to the National
Assembly for Wales;
(c)
in the case of a proposal of a Northern Ireland department to
35
make an information-sharing order, as references to the
Northern Ireland Assembly.
(8)
In this section—
“affected persons” means persons likely to be affected by the
proposed information-sharing order;
40
“the 21-day period” means the period of 21 days beginning with
the day on which the designated authority gives a copy of the
draft order to the Commissioner.
50E
Requirements for consent and further consultation
(1)
An information-sharing order made by an appropriate Minister (other
45
than an order made by the responsible Secretary of State alone or jointly
Coroners and Justice Bill
Part 8 — Data Protection Act 1998 (c. 29)104
with another appropriate Minister) may be made only with the consent
of the responsible Secretary of State.
(2)
A designated authority (other than an appropriate Minister) must
consult the responsible Secretary of State before making an
information-sharing order.
5
(3)
An appropriate Minister must obtain the consent of the Scottish
Ministers before making an information-sharing order which—
(a)
authorises information to be shared by or disclosed to a relevant
Scottish body in connection with any devolved Scottish
function of the body, or
10
(b)
modifies any provision made by or by virtue of an Act of the
Scottish Parliament or any subordinate legislation made by the
Scottish Ministers.
(4)
An appropriate Minister must obtain the consent of the Welsh
Ministers before making an information-sharing order which—
15
(a)
authorises information to be shared by or disclosed to a relevant
Welsh body in connection with any devolved Welsh function of
the body, or
(b)
modifies any provision made by or by virtue of a Measure or
Act of the National Assembly for Wales or any subordinate
20
legislation made by the Welsh Ministers (or by the National
Assembly for Wales established under the Government of
Wales Act 1998).
(5)
An appropriate Minister must obtain the consent of the appropriate
Northern Ireland department before making an information-sharing
25
order which—
(a)
authorises information to be shared by or disclosed to a relevant
Northern Ireland body in connection with any devolved
Northern Ireland function of the body, or
(b)
modifies any provision made by Northern Ireland legislation
30
where that provision deals with transferred matters.
(6)
Any question as to which Northern Ireland department is the
appropriate Northern Ireland department in relation to an information-
sharing order is to be determined by the Office of the First Minister and
Deputy First Minister.
35
(7)
In this section “responsible Secretary of State” means the Secretary of
State having primary responsibility for government policy in relation
to the protection of data.
50F
Interpretation of this Part
(1)
In this Part—
40
“appropriate Minister” has the meaning given by section 50A(2);
“designated authority” has the meaning given by section 50A(2);
“devolved Northern Ireland functions” are functions relating to
transferred matters;
“devolved Scottish functions” are functions—
45
(a)
relating to matters within the legislative competence of
the Scottish Parliament, or
Coroners and Justice Bill
Part 8 — Data Protection Act 1998 (c. 29)105
(b)
conferred on the Scottish Ministers by an Act or
instrument made under an Act (whenever passed or
made);
“devolved Welsh functions” are functions—
(a)
relating to matters within the legislative competence of
5
the National Assembly for Wales, or
(b)
in relation to which functions are exercisable by the
Welsh Ministers, the First Minister for Wales or the
Counsel General to the Welsh Assembly Government;
“enactment” means an enactment contained in or in an instrument
10
made by virtue of—
(a)
an Act of Parliament,
(b)
an Act of the Scottish Parliament,
(c)
a Measure or Act of the National Assembly for Wales, or
(d)
Northern Ireland legislation,
15
whenever passed, or made;
“information-sharing order” has the same meaning as in section
50A;
“Minister of the Crown” includes a government department;
“modify” includes amend, add to, revoke or repeal;
20
“relevant Northern Ireland body” means any public body, public
office or holder of such an office whose functions (in each case)
are exercisable only in or as regards Northern Ireland;
“relevant policy objective” means—
(a)
in the case of an information-sharing order made by the
25
Scottish Ministers, a policy objective which relates to—
(i)
matters within the legislative competence of the
Scottish Parliament, or
(ii)
functions conferred on the Scottish Ministers by
an Act or an instrument made under an Act
30
(whenever passed or made);
(b)
in the case of an information-sharing order made by the
Welsh Ministers, a policy objective which relates to—
(i)
matters within the legislative competence of the
National Assembly for Wales, or
35
(ii)
functions exercisable by the Welsh Ministers, the
First Minister for Wales or the Counsel General
to the Welsh Assembly Government;
(c)
in the case of an information-sharing order made by a
Northern Ireland department, a policy objective which
40
relates to—
(i)
transferred matters, or
(ii)
functions exercisable by a Minister within the
meaning of the Northern Ireland Act 1988 or by
a Northern Ireland department;
45
(d)
in the case of an information-sharing order made by an
appropriate Minister, a policy objective of that Minister;
“relevant Scottish body” means—
(a)
any part of the Scottish Administration;
Coroners and Justice Bill
Part 8 — Data Protection Act 1998 (c. 29)106
(b)
any public body, public office or holder of such an office
whose functions (in each case) are exercisable only in or
as regards Scotland;
“relevant Welsh body” means any public body, public office or
holder of such an office whose functions (in each case) are
5
exercisable only in relation to Wales;
“transferred matters” has the meaning given by the Northern
Ireland Act 1998;
“Wales” has the meaning given by the Government of Wales Act
2006.
10
(2)
For the purpose of this Part functions are not to be regarded as
exercisable by the Welsh Ministers, the First Minister for Wales or the
Counsel General to the Welsh Assembly Government merely
because—
(a)
the agreement of the Welsh Ministers, the First Minister for
15
Wales or the Counsel General to the Welsh Assembly
Government is required to the exercise of a function by a
Minister of the Crown, or
(b)
the Welsh Ministers, the First Minister for Wales or the Counsel
General to the Welsh Assembly Government must be consulted
20
by a Minister of the Crown about the exercise of a function.”
(2)
In section 67 of that Act (general provision about orders etc under the Act)—
(a)
after subsection (3) insert—
“(3A)
In the case of orders under section 50A—
(a)
subject to paragraph (b), subsections (1) and (2) have
25
effect as if references to the Secretary of State were
references to a designated authority (within the
meaning of section 50A),
(b)
an order made by a Northern Ireland department is to
be made by statutory rule for the purposes of the
30
Statutory Rules (Northern Ireland) Order 1979 (and
subsection (1) does not apply), and
(c)
subsection (3) does not have effect.”, and
(b)
after subsection (4) insert—
“(4A)
A statutory instrument containing an order made by the
35
appropriate Minister under section 50A must not be made
unless a draft of the instrument has been laid before, and
approved by a resolution of, each House of Parliament.
(4B)
A statutory instrument containing an order made by the
Scottish Ministers under section 50A must not be made unless a
40
draft of the instrument has been laid before, and approved by a
resolution of, the Scottish Parliament.
(4C)
A statutory instrument containing an order made by the Welsh
Ministers under section 50A must not be made unless a draft of
the instrument has been laid before, and approved by a
45
resolution of, the National Assembly for Wales.
(4D)
A statutory rule containing an order made by a Northern
Ireland department under section 50A is subject to affirmative
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