This article is one of a series that intends to inform and highlight the issue of Data/Information Sharing as proposed in the Coroners and Justice Bill currently being put before parliament. This is a serious issue for our individual liberties and is one I, and others, will be writing about over the course of the next month or two. If you have not already heard about this bill, please take a look at our analysis of the Coroners and Justice Bill’s contents, and account of both Liberty and the Information Commissioners Office (ICO) stating their opposition to the law as drafted.

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We’ve seen the debate, we’ve seen the law. The Coroners and Justice Bill can, in essence, remove the Data Protection Act wherever the government sees fit. Nevertheless, various people have jumped out of the woodwork to claim it is properly safeguarded. However, that the bill is somehow impossible to use in the means in which its laws are actually written down. Safeguards huh? Let’s see just how safe they are really.

The “good government” defence

I shall quote you one of the first things said in the committee that scrutinises the evidence of those with a stake in this bill, an exchange between David Howarth and Bridget Prentice…

David Howarth: But the circumstances—the pursuance of any Government policy—are not specific. Obviously, the Government do not have to tell anybody what their policies are; in fact they could act in pursuance of some new policy that they have just made up.
Bridget Prentice: One of the aspects of this Government is that we are constantly telling people what our policies are.
David Howarth: You do not have to.
Bridget Prentice: I dare say, but it is generally not good government not to tell people what the policy is.

The good government defence is a fraudulent one. What Bridget here is saying is that there is no need to tighten up the law as written because the government won’t possibly abuse it, they won’t mislead and they won’t hide their intentions. What Bridget is saying is an affront to the realities that at any point a government could take power that is not “good”. What Bridget is saying is an affront to the reality that the Labour government is not “good”.

Taking someone’s word for it, which is what we will have to do if the law is not tightened up and made more specific, is not something we are naturally inclined to do. If I agree to a payrise with my employer I don’t just take their word that I’ll get it, I’ll have it in writing. If I take a faulty appliance back to the store they don’t just take my word that I bought it from them, they require proof of purchase. Why this government seems to think that we should just trust them after a history of abusing and eroding our liberties, as well as losing our data, I just can’t fathom. Needless to say the idea that the government is good (from whoever’s perspective) being a safeguard is an astoundingly naive one.

The “proportionate” defence

The next defence is down to the section of the law that states…

[4] (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 affected by it.

Let’s just review what proportional means to this government. To this government it is perfectly proportional to create a database to hold the data of every single traveller in and out of the UK because of 0.036% of them being arrested (not even convicted) based on the data they already collect.

Proportionality (or fairness) is somewhat of a weasel word in politics. It means everything and nothing at the same time; judges in cases of law refuse to rule on the determination of “proportionality” due to it being an entirely political matter. If a minister says that what it’s doing is proportional then who is to say that it isn’t? It’s for this reason that the sentence that determines the need for proportionality is not a safeguard for erosion of our right to privacy, after all we know that there only has to be the suspicion of less than 0.05% of us to be doing something, or to be benefitted by data sharing, for all of us to needlessly have our data shared in the process…the precidents are set and they are not in our favour.

One could also look to the past to see how this government treats people with “fairness”…

We have had discussions about people who have lost their key. I find it slightly eccentric, although it is not impossible, that someone can lose a key that he needs to access a large amount of data. Such things happen, of course, and the person has a perfect defence if he has lost it and then forgotten it. I do not believe that a court would convict people in those circumstances if it believed them.

A government that believes that a person should be dealt with as guilty if they have simply lost a data encryption key, and forced to defend from the position of being guilty in the eyes of the government, is not a government that could ever be described as having a balanced description of how to “fairly” treat anyone, and that is not even going in to the argument of 42+ day detention for terrorist subjects, or arbitrary stop and searches that contravene methods to stop the police from discriminatory behaviour.

The “defined scope” defence

Just above the “safeguards” talked about above is the idea of a “defined scope”, that is to say that the government has to marry up the information sharing order to a policy that exists. What policies might they be? Well I’ve already provided a quote that shows the government doesn’t have to tell us what their policies are, nor why an order might link to that unknown policy. We as people affected by that policy don’t need to be told about it, and it can be made easily…so how exactly is this a safeguard? It is perfectly feasible for the government to decide they want to do a type of data sharing that they can’t link to a policy, proceed in inventing some policy to enable the sharing order, and carry through with it.

If sharing orders had to relate to something more substantial, something that could only be in place through proper debate involving those that are not solely biased through wishing to create such policies, then perhaps this would be a safeguard. However given that the sharing orders themselves need not be debated in the house, rather than in the back rooms in committees, it’s not a surprise that the government wishes to implement as few real hurdles to subjective and partisan law making as possible.

The “scrutiny” defence

Possibly the greatest safeguard myth of all is the idea that all of what will be passed is up for scrutiny, by the ICO and by other MPs. That’s not to say it isn’t true, scrutiny will be achieved…the myth is in that such scrutiny will change anything. Look at this division in a standing order of the past, note that the committee is made up of proportions roughly equal to the house of commons, thus there are more Labour members than non-Labour. What you’ll see is that as long as the members of the committe on the side of Labour are loyal, there is no way that scrutiny can result in the order not being passed. It’s precisely why no statutory instrument has been voted against by majority since the 1960′s.

It’s a sad fact of our democracy that our constituent views rarely matter, unless they reinforce the points of the parties that such constituency MPs wish to make. It is for this reason that governments can make legislation one year that promises (and here’s more of that “good government” bollocks) that it will never use a law for anything other than a set of specific circumstances then another year open up the law to all and sundry (read: Anti-Terrorism, Crime and Security Act (2001)). Phone call data being stored started as voluntary, then a statutory instrument made it mandatory…then another added a list of public bodies that could access that information. This practice has continued and continued so that whereas we started with a law that allowed 9 public bodies to access such information to stop terrorism and protect national security, we now have many hundreds that can access it for reasons that include to stop people from committing suicide or to (famously) check if people are in the correct school catchment area.

All of this could happen because the amendments to primary legislation, debated in the house properly, are done by less than 20 people in a back room in a manner that is short on time and where ammendments and therefore proper scrutiny is disallowed. If this bill passes in the same way then it is that level of scrutiny without effect that will be felt on orders that could take the Anti-Terrorism, Crime and Security Act’s beginnings to allowing 1000′s of public and private bodies to use your data for whatever reason they like, including selling it on for profit.

The “accountability” defence

An argument that the ICO gave, naively, in favour of the legislation’s parts that they agreed with was that there was accountability in theory. The simple claim is that if the government has to apply to the ICO, for a privacy impact assessment, and then debate an affirmative resolution order, that there is enough accountability to see who did what wrong. The accountability defense is flawed for two main reasons however. Firstly even if a discrepency and an abuse of power was found, there is nothing the electorate can do until another election. Accountability only matters when people can be held to account in a relevant amount of time, and given that every individual in the country would have to be religiously following the OPSI pages for new Sharing Orders before even having a hope of spending their own cash on thwarting any such occurance the liklihood of accountability is extremely slim.

Secondly the accountability relies on governments “playing ball” with the ICO, and even with the members of the house. Richard Thomas states:

The statute will say that there is only 21 days for the office to comment, which is not very long at all, but in practical terms I would certainly expect any Department wishing to bring forward a scheme to contact my office many months in advance, to keep us up to speed as to what is envisaged, to consult us on how it will conduct the privacy impact assessment, and to share it with us before bringing the order at the formal stage for our comment. Unless that kind of contact happens in practice, with many exchanges before the 21 days start to run, I think that some of your concerns are justified.

There is no requirement in this bill for anyone to give any notice to the ICO of these Sharing Orders. It could invoke the “national security” argument that has won them so many powers in the last decade and shove something on to the table, give the ICO no time to do a proper assessment, and then not give anyone that is meant to keep the process accountable and transparent a chance to suggest alterations…given they, or members of the house, are able to amend any terrible order trying to be passed through.

All of the above point to the ongoing tactic of the Labour government to over-legislate to give itself powers to not only act in terms that are necessary, but also for them to act as judge and jury in whether or not to allow more innocent actions are determined to be illegal. You only have to take the example of making it illegal to photograph police officers from today, Labour will insist that it won’t prosecute anyone simply taking tourist pictures and happening to snap a copper, but they will be undermining the law they create…but at least it will mean that when someone comes along that they DO want to prosecute, for whatever reason, if they can happen to find one instance of these overzealous and disproportionate laws being broken they will have the right to bring down their full power upon them.

That is precisely what this Coroners and Justice Legislation aims to do as well. They will tell us that they will “never abuse” the powers they’ve got, but they are all the happier that such laws are there to be abused if they suddenly feel the urge…and it’ll be all the worse if we sit back, fold our arms, and pretend that there are barriers there for our safety when the reality is that there are none. At the very least Part 8, 152, 50B (h) enables a government to remove any and all of these safeguards, and any safeguards in the Human Rights Act and the Data Protection Act, at any time it wishes.

About the author
Lee is a 20 something web developer from Cornwall now residing in Bristol since completing his degree at the lesser university. He has strange dreams, a big appetite, a small flat, and when not forcing his views on the world he is probably eating a cookie. Lee blogs independently from party colours at Program your own mind.
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