We have previously posted about the above decision: see here.
The case is now available online here on the website of the Upper Tribunal (Administrative Appeals Chamber).
Author: Timothy Pitt-Payne KC
BIOMETRIC INFORMATION IN SCHOOLS
In my post yesterday about the Protection of Freedoms Bill I referred to the provisions about biometric information in schools. I asked why this subject had been singled out for attention in the Bill, and whether there was any evidence that the current situation was unsatisfactory.
Action on Rights for Children (ARCH) have just posted on their website a very interesting briefing on the subject: see here. This is clearly an issue that has been of concern to ARCH for some years, and their paper gives an overview of developments since 2001. ARCH welcome the proposal to introduce consent into the process of taking children’s biometric data, but suggest that ensuring any consent is valid and informed will present a considerable challenge.
PAPERS FROM THIS WEEK’S SEMINAR
The papers from this week’s Information Law seminar are now on the 11KBW website here and here. Many thanks to all of those who attended. Thanks also to UK Human Rights Blog for reposting my post yesterday about the Protection of Freedoms Bill, and to those who have commented on Twitter about the seminar (searchable under #11kbw).
PROTECTION OF FREEDOMS BILL – A NEW DAWN FOR PRIVACY?
This post is an extract from my presentation at 11KBW’s Information Law seminar last night.
The Coalition Government’s Programme for Government, launched on 20th May 2010, made a number of commitments relating to information law, including issues about privacy and data protection. It also stated that the Government would introduce a Freedom Bill. On Friday last week (11th February) the Protection of Freedoms Bill was duly published, with lengthy explanatory notes stating that it implemented 12 specific commitments in the Programme for Government.
As well as extending the Freedom of Information Act (“FOIA”) and giving effect to the hitherto mysterious “right to data” promised in the Programme for Government, the Bill addresses a number of other information law issues:
(i) the taking and retention of DNA samples and profiles and other biometric data;
(ii) use of biometric data in schools;
(iii) regulation of CCTV and other surveillance camera technology;
(iv) the use of RIPA by local authorities;
(v) the employment vetting system, in particular the role of the ISA and the system of CRB checks;
(vi) the retention of information regarding convictions or cautions for offences involving consensual gay sex with a person aged 16 or over; and
(vii) the appointment and tenure of the Information Commissioner.
On the face of it the Bill appears to be a privacy-friendly piece of legislation, with a number of provisions that reduce the amount of information held by public authorities or that limit various manifestations of the “surveillance society”. However, the approach has its limitations.
First, the Bill is something of a rag-bag. For instance, why has the use of biometric technology in schools been singled out for attention? Is there actually any evidence that the existing DPA framework has not been coping with this adequately? There is little evidence in the Bill of a comprehensive attempt to think through issues about privacy: the impression is more of an attempt to address specific issues that have caused public controversy (e.g. employment vetting), created legal problems in Strasbourg (e.g. DNA retention), or otherwise caught the eye of politicians. Contrast the approach in New Zealand, for instance, where the Law Commission is conducting a comprehensive review of the law of privacy.
A second, related point is that the regulatory framework in this area is becoming increasingly fragmented. The Information Commissioner is responsible for the DPA. Other regulators deal with different aspects of privacy. The Office of the Surveillance Commissioners oversees the use of covert surveillance and covert human intelligence sources. The Interception of Communications Commissioner reviews the interception of communications, the acquisition of communications data and related issues. The Equality and Human Rights Commission also has a role to play in relation to article 8 of the Convention. Now in addition we are to have a Commissioner for the Retention and Use of Biometric Material and a Surveillance Camera Commissioner. A less scattergun and more considered approach to reform in this area might begin by looking at whether the time has come to introduce a Privacy Commissioner (perhaps by expansion of the existing ICO) to bring all of these various functions under a single roof. See here for discussion along similar lines.
A third point is that the Bill is very much focused on the activities of the public sector as a potential threat to privacy. For instance, the focus is on public sector rather than private operators of CCTV systems. There is nothing that reflects contemporary debates about the use of personal information by credit reference agencies or social networking sites.
ENHANCED CRB CHECKS – YET AGAIN
The system of CRB checks (established under Part V of the Police Act 1997) is currently under review: for the review’s terms of reference, see here. At present, where an enhanced CRB check is carried out it is for the police to decide whether there is any non-conviction information that ought to be included in the enhanced CRB certificate: for instance, information about acquittals, or about allegations that have never been tested at a criminal trial. The legal principles governing this exercise – in particular, the relevance of Article 8 of the Convention – were extensively discussed by the Supreme Court in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3.
The recent decision of the Court of Appeal in Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3 raises a different issue: for the purposes of the law of negligence, do the police owe a duty of care to the individual who is the subject of the certificate? The Court of Appeal holds that they do not.
In Desmond, the claimant’s case (put very shortly) was that adverse information about him had been included in an enhanced CRB check; that the information disclosed was misleading; and that the decision to disclose could not be justified on the basis of the material available to the police, and had been reached without making proper enquiries. He brought a claim against the relevant Chief Constable, alleging (inter alia) breach of Article 8, breach of the Data Protection Act 1998, and negligence.
The claim in negligence was struck out, but this decision was partly reversed on appeal by Wyn Williams J, whose judgment is at [2009] EWHC 2362 (QB). On further appeal, the Court of Appeal restored the original decision to strike out the negligence claim in full. There was no proper basis for concluding that the chief officer was to be taken to have assumed responsibility to Mr. Desmond; the structure and purpose of the relevant legislation strongly suggested that there should be no duty of care; there was no case which persuaded the Court of Appeal, by analogy, that a duty of care should be imposed; and the existence of various other remedies that Mr. Desmond could pursue also supported the conclusion that no duty of care was owed.
The Court of Appeal also states that Article 8 of the Convention is likely to be applicable in every case where non-conviction information is disclosed as part of an enhanced CRB certificate, and that a breach of Article 8 would give rise to a potential damages claim under section 8 of the Human Rights Act 1998: see paragraph 9 of the judgment. It appears from the Court of Appeal’s judgment that Mr. Desmond’s Article 8 claim still continues, as does his claim under the Data Protection Act 1998.
PUBLIC SECTOR EARNINGS – MORE INFORMATION
The Cabinet Office has now published details of quango employees earning more than £150,000. The information has been added to the list- published at the beginning of June – of the highest earning senior civil servants, and the consolidated list is available here. According to the Cabinet Office website, information has been withheld for 24 individuals: there is no explanation as to whether this was simply because the individuals objected, or for other reasons.
Further information about special advisers was published on 10th June, including a list of those earning more than £58,200 a year (sadly, Tamzin Lightwater does not appear).