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I share your fears Chris, but I look at this issue through different glasses! I’m thinking aloud a little here, so please excuse me:

‘Home office consent’ to which you refer is what I refer to as “consent as a condition of business”. It’s not ‘consent’ in the DPA tradition, in as much that it can’t be refused. But, to be legitimate, I have always judged it against whether it would be deemed an unfair contract term. Many years ago, I judged it against the OFT’s ‘unfair contract terms’ guidance; and more recently we have had other consumer legislation and the CPUTR’s.

So, for example, requiring a loan applicant to consent to CAIS / industry data sharing was legitimised as there was govt support for data sharing, to reduce the risk of consumers taking out numerous loans and becoming over-indebted. Readers may recall the suicides linked to credit card over-indebtedness of not that many years ago. It also seems fair to the credit industry, that they can make some assessment as to whether the person will/can repay any such loan. So, whilst the loan terms might say “you consent to…….”, it is not a ‘freely given’ consent. Indeed, use of the word ‘consent’ itself is something of a fiction; but arguably ‘consenting’ to pay 7.9% APR is also not consent, in as much that the rate and other loan terms are unlikely to be capable of being negotiated.

So, should we refer to such ‘consent’ as consent at all? It is ‘freely given’ in the sense of “I can take it or leave it”, but it does not allow a ‘pick and mix’ approach of which terms to accept and which to refuse. I think it more akin to a Sch 2 ‘legitimate interests’ processing condition, in as much that if it did not also meet the ‘legit interests’ processing condition test, it would likely be an unfair contract term – and if it was an unfair contract term it would be unenforceable.

As far as the “necessity” test under the new Regs is concerned, it will be interesting to see how this plays out. But the ICO has not taken action against ‘consent as a condition of business’ so long as it has met the fairness test; so one wonders whether things will change under the Regs?

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