The recent decision of the Information Commissioner to appeal the recent judgement of the Court of Appeal with respect to the retention of criminal records (see last Thursday and Friday’s blog) raises an intriguing question. Is the Information Commissioner with a mission statement that focuses on information rights seeking to expand the protection of those rights into the Human Rights arena?
In his press statement David Smith, Deputy Information Commissioner says the Court of Appeal judgment “engages serious questions about the applicability of Article 8 of the European Convention on Human Rights to conviction data held by the police”. Consequently “we have applied to the Supreme Court for leave to appeal and we hope that the application will be successful so that these issues can be examined by the Supreme Court”.
I welcome this move as there is an indirect link between Article 8 of the Human Rights Act and Schedule 2 of the Data Protection Act through the use of the word “necessary”. So, for example, when a public authority claims that its processing of personal data is “necessary for the exercise of any functions conferred on any person by or under any enactment” (Sched 2, para 5), it implicitly means that there exists an enactment that allows for an interference by a public authority into private and family life and correspondence etc.
In particular, Article 8(2) requires that any law that permits interference is “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
If the Supreme Court were to cement a strong link between the two regimes, there is a prospect that the Information Commissioner could subsequrntly apply to a Court so that it can use powers in the Human Rights Act to strike out statutory instruments that provide for wide ranging powers of data sharing (that this Government is too fond of enacting). This action could be justified on the grounds that the processing does not have a Schedule 2 ground because it is “not necessary for the exercise of any functions conferred on any person by or under any enactment”. And that processing is “not necessary...” because a particular SI is not “necessary in a democratic society....” (the link to Human Rights Act).
So, if the Commissioner is given leave to appeal to the Supreme Court, data subjects can, for a moment, dream of an intriguing linkage that could significantly extend privacy protection.
Reference: In Part 1 of “Nine principles for assessing whether privacy is protected in a surveillance society” (see download section of www.amberhawk.com), I provide a full analysis of the links between the HRA and DPA. In Part II of that analysis, I suggest the Sixth Principle should be used to make that linkage explicit (this has the advantage over the above as it does not disturb the Special Purposes, in particular investigative journalism).