Government weakens Parliamentary and ICO supervision of the Data Protection Act

I have concluded that proposals published by the Government in relation to “the bonfire of the quangos” (the Public Bodies Bill) and in relation to reform of Parliament (the Parliamentary Voting System and Constituencies Bill) can both serve to weaken the effectiveness of the supervision of the Data Protection Act. There is a significant risk that a future Government could use powers in both Bills to reduce Parliamentary scrutiny of its own processing of personal data or threaten the Information Commissioner into not taking regulatory action.

Before the Public Bodies Bill was published, I thought the Office of the Information Commissioner (ICO) was “safe” from abolition. The text of the Bill shows that this is not the case, as the Bill specifies all quangos as falling within one of seven Schedules of the Bill.

For example, there is a Schedule for quangos to be abolished, a Schedule for those quangos that are to be merged with others, a Schedule of those quangos whose powers and functions are to be changed, a Schedule of those whose powers and functions are to be transferred and finally a Schedule of other public bodies which can be transferred into other Schedules.

The ICO can be found listed in the last Schedule. Technically, it is “safe” for the moment but the powers in the Bill mean that the ICO can be moved from the “safe” Schedule to any other Schedule (e.g. the “abolish” Schedule or the “merge functions” Schedule) at the stroke of a Ministerial pen. All the Minister needs do is lay an Order before Parliament changing the Commissioner’s place in the Schedules followed by another Order removing powers, transferring functions or whatever the Minister wants.

So suppose in future, an Information Commissioner is concerned about how Government processes personal data. If the Information Commissioner is viewed by the Minister to be “too pushy” or “unhelpful”, the Bill allows the Minister to change the powers and functions of the Commissioner or transfer those functions to a more compliant body.

In other words, the Commissioner cannot now be guaranteed to possess total independence from Government. In my view, the risks associated with the Public Bodies Bill makes the overwhelming case for the Commissioner to be taken away from the responsibility of the Ministry of Justice, and to report to, and to be funded by, Parliament.

Mind you, the change proposed above is not a panacea as the effectiveness of Parliamentary supervision is likely to be eroded by the second proposal from Government: the Parliamentary Voting System and Constituencies Bill. At the heart of the Bill there is a proposal to reduce the number of MPs by 50 so that 600 MPs are in Parliament. There is no proposal in the Bill to reduce the number of MPs who serve in Government.

As the Government is formed from MPs in Parliament, there exists is a “block vote” called the “payroll vote” that is worth about 150 votes. MPs in Government are expected to vote for the Government (or resign), so by reducing the number of MPs but not the MPs in Government, the payroll block vote increases its power from 23% to 25%.

In general, this block of guaranteed support for the Government on any given Parliamentary vote accounts for the fact that it is very rare for Government to be defeated. Additionally, as most MPs want to become Ministers, the Whips ensure that frequent “rocking the boat” usually ends that prospect. Sometimes, MPs who continually cause trouble could face threats of reselection if their party loyalty is continually called into question.

This explains why Parliament is a generally compliant body. There is no separation of powers as in the USA where Parliament can scrutinise the executive, because the executive has a significant block vote in the scrutinising chambers of Parliament, and the Whips (also part of the executive) dictate how MPs from the governing party vote.

So if there were to be a dispute about the Government’s processing of personal data, the only MPs likely to pick up the issue are the opposition ones who have no power. As seen regularly with the last Government, Ministers plough on regardless of what is said in Parliamentary Committee reports (like the ones from the Joint Committee of Human Rights or the Home Affairs Select Committee on surveillance). The record shows that these reports are often ignored.

In other words, reducing the number of MPs also reduces the scrutiny of Government by Parliament. So if Government wants its way with respect to the processing of personal data, then do not expect Parliament to protect the individual from the overbearing state. If the Information Commissioner steps out of line, then there again there is a risk that his powers to intervene could be reduced or removed by Ministerial order. Again, do not expect the Government to lose that vote.

These Bills can change the relationship between the individual and the state. Not only are we are “sleepwalking into a surveillance society” (to use the ICO’s popular phrase), we are also watching the Government taking powers to remove the independence of the Information Commissioner and reduce the ability of Parliament to protect that independence if the Information Commissioner were to act against Government in order to protect privacy.

Whether the above effects are deliberate or inadvertent can be argued. What can’t be argued is that the Coalition Government is creating a very dangerous structure that cannot guarantee individual privacy.

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Comments

[William Thirsk-Gaskill]

That was a very interesting item, and one that I will re-read in order to absorb all the constitutional niceties, but I think you have stuck to a slightly too mechanical view of how the machinery works.

Are you saying that the Coalition is simply ditching its previous sayings as part of the transition from opposition to government? Are you expressing a kind of anarcho-folk-belief that everybody in power is constantly on the make? You conclusion seems to tend towards, "Oh, my god - we are all going to die."

For a start, one of the things you have neglected is people like you. What happened to the other ingredients of a complex democracy? Free press? Pressure groups? Is it not true that, in the wake of the 'duck island' business, public interest in scrutiny of our rulers is, if not exactly high, at least higher than average?

[CP]

Another postscript

How do I think these powers will be used? Suppose I were a Minister getting very irritated with ICO’s actions (e.g. say on DNA for the sake of argument).

The powers would not be used to abolish the ICO, but to transfer DNA privacy policy to a new DNA independent (more compliant) regulator appointed by the Home Office.

The powers would be used to transfer a narrow salami slice of the ICO’s role leaving the vast majority of its role untouched and thereby avoiding a court case in Europe.

These powers are available to any future Government and should not be left unfettered – I think this is the point. Also transfer of the ICO from the MoJ is now essential.