Coroners and Justice Bill – destroying data protection


3:52 pm - January 23rd 2009

by Lee Griffin    


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Currently if anyone wants our data in this country they have little to no luck in obtaining it (unless they ask a company registered to sell your information, but even then you need to opt-in), the Data Protection act stops anyone from being able to share our information around willy-nilly. The only body that has comprehensive legal paths to obtain our data, no matter what, are the police and security services. If this happens, then it is only in matters of national security or child protection that the police may contravene the Data Protection Act.

Essentially what this means is that the state has the power to watch you if it has sufficient belief that to do so would prevent a crime that would threaten the security of the UK, or the welfare of children, but no more than this. The new Coroners and Justice bill contains clauses that will blow this out of the water, completely destroy such boundaries to our civil liberties and allow the government to effectively become the managers of our personal data.

What does this mean to you and me, the normal, law-abiding citizens of the country? Well first take a look at this paragraph…

50B Information-sharing orders: supplementary provision
1) An information-sharing order may—
(a) confer powers on the person in respect of whom it is made;
(b) remove or modify any prohibition or restriction imposed (whether by virtue of an enactment or otherwise) on the sharing of the information by that person or on further or onward disclosure of the information;
(c) confer powers on any person to enable further or onward disclosure of the information;
(d) prohibit or restrict further or onward disclosure of the information;
(e) impose conditions on the sharing of information;
(f) provide for a person to exercise a discretion in dealing with any matter;
(g) enable information to be shared by, or disclosed to, the designated authority;
(h) modify any enactment.

Wow, big words and confusing language. But don’t worry, what it essentially says is that a government minister that wants to share our personal information can also remove any existing laws relating to that data (such as that it can’t be used for commercial purposes, i.e. spammers), allow whoever is sharing the data to be allowed to share it with others without your consent, or to just get the information for themselves.

And for what purposes would they do that? For terrorists? Child molestors? Let’s see this paragraph…

50A (4) A designated authority may make an information-sharing order only if it is entitled to make the order by virtue of section 50C and it is satisfied—
(a) that the sharing of information enabled by the order is necessary to secure a relevant policy objective,
(b) that the effect of the provision made by the order is proportionate to that policy objective, and
(c) that the provision made by the order strikes a fair balance between the public interest and the interests of any person affected by it.

Nope, they would relax these laws to secure a policy objective. It also tries to ensure that there is a “fair balance” between you having your information used however the government deems to be right and “public interests”. This is wooly language at best, and given that the only time this point (part 4, section c) is going to get contested is at an appeal it doesn’t really matter. After all…they don’t have to tell you they’re taking your data, so how do you know to appeal?

But that idea of securing a policy objective is interesting. Let’s look at an example policy objective that has existed for the Department of Transport.

Encourage passengers to cycle to stations, especially as an alternative to driving

So long as no-one appeals it, it would be perfectly legal after this bill for the government to get records of all people parking at train stations through ANPR, allow them to share data with the DVLA, and then pass that data on to a private body that would commercially target them to cycle instead. They decide that they can do this, no-one, not even the Information Commissioner’s Office (ICO) has the power to stop them.

And finally, “by virtue of section 50C”…

50C Designated authority: entitlement to make an information-sharing order
(1) An appropriate Minister is entitled to make an information-sharing order only if the sharing of information enabled by the order is for the purposes of—
(a) in the case of the Secretary of State, any matter with which a department of the Secretary of State is concerned;
(b) in the case of the Treasury, any matter with which the Treasury is concerned;
(c) in the case of any other Minister in charge of a government department, any matter with which that department is concerned.
(2) Where more than one appropriate Minister is entitled to make an information-sharing order by virtue of subsection (1), any one or more of the appropriate Ministers acting (in the case of more than one) jointly is entitled by virtue of this section to make the order.

We’ve already seen that control orders can break down all your legal safeguards over your data, and allow it to be given to anyone the government likes without your consent. We’ve seen that they can do this based on any official government policy objective aims, no matter how small or large. Now we also see that anyone in the cabinet can make these decisions, with no judicial oversight whatsoever, so long as it relates to their department.

Essentially there is as good as no restriction on who in the government can do this, no oversight except from a toothless ICO that can’t do anything about it, and they can do what they like with your data as they share it around.

And what if they find something else in this information that they’re harvesting so that they can prop up businesses that meet their partisan policy objectives with our information? Something they don’t like?

50B(2) An information-sharing order may provide for the creation of offences triable either way which are punishable—
(a) on conviction on indictment, by imprisonment for a term not exceeding the specified period or to a fine or to both;
(b) on summary conviction, by imprisonment for a term not exceeding the specified period or to a fine not exceeding the statutory maximum or to both.

Well look at that, could it be that they can take that information and literally conjure up an offence to convict you with? For example, if they are looking to convict anyone with an email address that contains the word “bomb” they could create an offence in line with that, and through the data sharing issue warrants for the arrest of those people. One can only hope that in reality this ambiguous term is actually only intended to relate to those that misuse the data, not those being spied upon.

And let’s not forget that all of this only means anything to you and me, the law-abiding (or maybe not so law-abiding) citizens of this country, as the authorities and governmental individuals of this country are, of course, exempt to any of this and so can never be scrutinised in the way they will intend to scrutinise us. The exact mentality that was present in the Labour plan to conceal MP Expenses from the tax payer.

This government wants to be overlords of information, it wants to be the one that says if your data can be given to a private company, not you. Isn’t that a scary enough idea, in a nation where we absolutely hate anything of an unsolicited nature, to Write to your MP and protest this bill right away? If you don’t do it in the next couple of days, you may regret it in the future. Time is fast running out.

This is a version of a post cross-posted from Program your own mind

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About the author
Lee is a 20 something web developer from Cornwall now residing in Bristol since completing his degree at the lesser university. He has strange dreams, a big appetite, a small flat, and when not forcing his views on the world he is probably eating a cookie. Lee blogs independently from party colours at Program your own mind.
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Reader comments


1. Alisdair Cameron

Truly terrifying. If anyone tries to defend this appalling legislation, could they just explain to me, why
a) the deceptive/stealthy way it’s being introduced
b) the lack of any safeguards in it of the individual’ s rights
C the pressing need for it

Have written to my MP already, but not holding out much hope on this…

Oh yes, I should add that this bill was first read on the 14th of January, and will be debated on Monday. That’s less than two weeks in which to analyse 232 pages of legislation, of which there is already one controversial element which we hope to be taking up time in debate aside from this.

That’s 19 pages (just over) a day to analyse. I’m no expert on it, but it took me Several hours simply to decipher and analyse two. This is a Bill that Labour want to sneak through with poor information and discussion, Henry Porter is spot on with his assessment of their strategy.

I too fear the worst, I can’t see this being held up to scrutiny, it’s depressing. The only thing we can do realistically is really watch for any SI’s that pop up and do our best to get MPs to protest against them.

Outstanding work, Lee.

I should clarify that these orders will have to go to a vote in parliament under section 67 of the DPA. however we all know how many people turn up to vote on SI’s, government records seem to show the last time one failed was 1969 or thereabouts. But, on the flip side, it gives us a very, very slight tool in the future to fight this.

Some are also having a bit of an argument over the idea that this part…

(d) prohibit or restrict further or onward disclosure of the information;

…is a gagging order clause. Given that information is something that “consists of or includes personal data” the scope of what that information could be is quite wide. I don’t want to get all paranoid, but one Statutory Instrument latter and we could happily have a block newspapers from reporting about a certain subject that has information about a certain person. This would go hand in hand with secret inquests and handpicked judges. It also doesn’t need any court involvement.

5. David Heigham

A public purpose of the Treasury is to raise revenue. These provisions appear to give the Treasury power to sell the data at their discretion, purely to raise revenue. Indeed, they appear to give the Treasury power to appoint any person to sell ‘the information’ at the discretion of that person.

What is included in ‘the information’? Is this the end of personal details given to the Census being kept secret for 100 years? Does it become legal for the Treasury to share with anyone they chose all personal tax details? Etc., etc.

The possible impact on Freedom of Information is extraordinary. For example, these powers appear to enable the Leader of the House (or another Minister) to make an order saying that the Clerks of the House may share information on Memebrs expenses with the Whips’ Office; making it an offence for even the MP whose expenses are at issue to share ‘the information’ with anyone else.

My impression is that these are hastily drafted provisions intended to cover the back of some Minister whose Department has been sharing data in a way which may be legally challengeable. They are so scrambled together that they are not even gramatical. For example, this Bill would enable Ministers to create offences punishable ‘to’ a fine; but not offences punishable by a fine. Then these provisions have been inserted into the least awkward spot in the current legislative programme.

MPs should be alerted. If that fails, we will have to rely on the Lords, once again.

“What is included in ‘the information’? Is this the end of personal details given to the Census being kept secret for 100 years?”

Well, if government passes an information sharing order, yes. Information is any thing that contains or is personal data.

“For example, these powers appear to enable the Leader of the House (or another Minister) to make an order saying that the Clerks of the House may share information on Memebrs expenses with the Whips’ Office; making it an offence for even the MP whose expenses are at issue to share ‘the information’ with anyone else.”

Yep, perfectly possible. In fact, pretty much anything is possible because as long as the instrument is passed, it is able to amend (for the purposes of the sharing order only) any act of parliament, and make any offence. The only limitations seem to be that the sharing order has to be linked to a policy objective (easy enough to create), has to be issued by a minister in control of that policy area (even easier to convince), and has to relate to personal data (irrelevant as the sharing order can alter the terms of what constitutes personal data and rewrite the bits of the DPA that don’t quite fit).

So essentially, as long as it relates to pretty much any information that can loosely be determined to be personal, a sharing order can rewrite pretty much any law in order to facilitate either the sharing, or the gagging, of any information.

It’s a government information management bill and a censorship bill all rolled in to one.

What’s the current state of play regarding the US government’s access to British data held by US companies? The civil service uses EDS, which is an American company and therefore might fall under the jurisdiction of the Patriot Act.

This is stunning and depressing all at once. That they think that they can get away with this, and that they are right to think so, is pretty horrifying.

I think we’re now at a point where all we can do is keep a list of all of these things and hope that the next government repeals them, which is a vanishingly slim chance in itself.

The facebook groups around are a hoot. Aside from thinking that this site is a conspiracy site purely because of the URL, there are a shocking number of people that when presented with this information seem to believe that it’s just being spun. This is the legal wording, this is what will and can happen!

As I said on Facebook, I can’t understand the mentality of giving a child a firework and hoping it never finds the match.

Lee,
Intersting that you elide the use of the word proportionate in section 50A(4)(b). Your piece would be more complete, and less shrill, if you maybe turned your mind to how that would be defined if judicial review of decisions made under this section were applied for.

Of course, that might drive a coach and horses through much of your argument, especially your chosen example, but the question is whether you ignored that point because you didn;t get it, or because you feared it was fatal to your case and decided to ignore it.

For those that don’t know what Bob is talking about, he’s referring to this…

“that the effect of the provision made by the order is proportionate to that policy objective, and”

I also didn’t note that each information-sharing order has to be voted on as a statutory instrument, largely because in practice it will mean very little unless the culture of Westminster is radically overhauled.

“Your piece would be more complete, and less shrill, if you maybe turned your mind to how that would be defined if judicial review of decisions made under this section were applied for.”

How do you define proportionate? I can’t see any other definition here other than that the order has to pertain to that policy objective, which probably also means proportionate in terms of the policies scope.

Just because these sharing orders are unlikely to be blanket national orders doesn’t make them any less dangerous. We’d be screaming louder, of course, if they were able to just make such blanket orders…but they’re smart, because by doing it this way they can make a dozen sharing orders and effectively have created a network of sharing that is the same as that blanket order, but people like you will sit back and go… “hmm, well…but it *is* proportionate so..I guess that’s ok then!”

“Of course, that might drive a coach and horses through much of your argument, especially your chosen example, but the question is whether you ignored that point because you didn’t get it, or because you feared it was fatal to your case and decided to ignore it.”

Given that these information sharing orders are introduced through statutory instrument, which are rarely visited by members of either house, the reliance would be on people constantly using FOI requests or being lucky enough to realise what is happening before they could call any kind of appeal against the ruling. That’s on top of the issue I mention above of the sheer spectrum of people that can push these forward and thus “policies” that can be utilised to facilitate information sharing.

For me I’d rather that law wasn’t passed that in practice will require citizens to constantly be questioning to government what their data is being used for, just so that it can go through a costly appeals process in the hope that their understanding of the word “proportionate” is the same held by the judges and that the instrument will be overturned or annulled.

You seem to feel differently, I’d love to know why you would rather give government these powers and trust them not to abuse them rather than not give them these powers in the first place. Given RIPA is so obviously abused given it’s original purpose I think the “trust” part of this relationship has been worn out, don’t you?

This is the act that will enable the Government to take all your internet and email records, by the way.

It also seems to allow them to prosecute you for things you did that weren’t crimes when you did them, or bang people up for protecting other people’s private personal data.

If this gets past the house of lords (can’t see that happening in a million years), it will be challenged by the European Court of Human Rights – specifically as a breach of the Right to Privacy.

Still, they could do an awful lot of damage and destroy a lot of lives (and bang up a lot of political opponents) before they’re forced to stop, assuming they can be stopped at all.

For those interested the debate is today from about 3.30pm.

You can use http://www.discryptor.net/en to make your data protected


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  6. Lee Griffin

    @glynmoody Another case of Civil Servants recycling old and defeated ideas. I wrote about it first time around. http://t.co/QylsPgL2

  7. Lee Griffin

    Getting some Deja Vu, just like with extension of RIPA recently.. Now: http://t.co/ekZFKVEa Then: http://t.co/QylsPgL2





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