The political party conference season has ended and it is very clear there is little in the way of privacy policy emerging. The Tories have a policy document on the surveillance state (see blog – not coherent); the Lib Dems are deliberating what to do via a Privacy Commission (we have to wait for white smoke), and Labour offers the same as before. Only the Scottish Nationalists seem to be trying something new.
The Tories do promise a Bill of Rights. However the difficulty is not defining the individual rights but rather when the rights do not apply. If the Bill of Rights is to substitute for the Human Rights Act (HRA), then it cannot be to too different from the HRA. If there were to be significantly differences from the HRA, then the demand for Easyjet flights to Strasbourg is likely to increase.
I think the main privacy problem is that the Government is an “active” data controller wanting to exploit its data assets; it is in a special position in that it can enact legislation that makes the processing lawful. It is very difficult to restrain privacy busting projects like the National Identity Register if you have a weak Parliamentary system of pre-legislative scrutiny combined with a weak system of post-legislation regulation (the UK has both).
Two decades ago you had what I call “benign” Government processing where the processing of personal data was mainly limited to individual Departmental needs. Now you have the “active” Government and the development of cross Departmental needs for the processing of personal data – that is why you have all these data sharing initiatives. The real problem is building a Parliamentary and regulatory structure that reduces the risk that the currently “active” becoming a future “malign”.
For example, it took ages for Marper’s DNA case to get to Strasbourg. I think it wrong that individuals have to take the UK Government to court on a privacy issue; this is a David v Goliath struggle where an under-resourced individual takes on an opponent who dips into the infinite kitty created by all taxpayers.
I think Article 8(2) of the HRA is an important safeguard as it identifies when public authorities can process personal data without consent; it follows that most other processing should be undertaken with consent (or a “no questions asked, right to object”). I also think that my construction of the definition of personal data in the “Reclaiming Privacy on the Internet” (see www.amberhawk.com) can afford wider protection. It the usual personal data definition plus the fact that if the data subject can easily provide the identifying information (e.g. to orgs like Google), then processing of IP address type data becomes the processing of personal data.
As it is the anniversary of Monty Python, now for something completely different. Given that the Scottish Nationalist Government is wanting to distinguish itself politically from all Westminster parties at the forthcoming General Election, how about the idea of the extending the role of the Scottish Human Rights Commissioner to protecting the rights of those domiciled in Scotland in terms of the Human Rights Act in terms of Westminster legislation (e.g. someone who could possibly assist in actions on behalf of individuals whose Human Rights have been breached by Westminster legislation)? If I were thinking of something unique to a Nationalist Party, offering additional protection to its electorate that its Conservative and Labour opponents would be unlikely to offer, then the idea Commissioner has a certain appeal.
The establishment of a Commissioner would also protect all of us in the UK as well. Perhaps we should all develop an interest in Scottish politics (as well as the malts).
NOTE: This blog has changed slightly from originally published in that I overlooked the establishment of the Scottish Human Rights Commission which started work in January 2009; the Commission was established by the Scottish Commission for Human Rights Act, 2006. The current Commission is mainly limited to the actions of Scottish Public Authorities and it is excluded from devolved matters. The idea here is to provide a limited role for the Commission with respect to the impact of UK-wide legislation in Scotland. For example, if regulations under the ID Card legislation, were in the opinion of the Scottish Human Rights Commission in breach of Article 8 of the Human Rights Act, I see no problem in them investigating the matter, holding evidence sessions, and writing a report, or indeed taking action or assisting action under the Human Rights Act in order to strike out the regulations.
Comments