A suitable case for recruitment

April 4th, 2009 by Timothy Pitt-Payne QC

 Information law overlaps with employment law in two main ways, in relation to employment vetting and employment monitoring. Broadly speaking vetting is about the enquiries that an employer can make before recruitment, and monitoring is about checking on the performance and behavior of existing employees.

 
The legal framework for employment vetting is changing radically, as the Safeguarding Vulnerable Groups Act 2006 is brought into force. The Act implements the Bichard Report, which followed an inquiry into the notorious 2002 Soham murders. It establishes a new vetting and barring scheme for those working with children or vulnerable adults, to be operated by a statutory body called the Independent Safeguarding Authority (ISA).

 
With effect from 20th January 2009, the ISA was given responsibility for decision-making under the 3 existing employment barring lists: the education list, (popularly known as “List 99”), the PoCA list (for those working with children) and the PoVa list (for those working with vulnerable adults). As from 12th October 2009 these 3 lists will be replaced by two new lists introduced by section 2 of the 2006 Act and maintained by the ISA –  the children’s barred list and the adults’ barred list.  Employers, social services and professional regulators will have a duty to share information with the ISA. From July 2010, new entrants to roles working with vulnerable groups and those switching jobs within the sector will be able to register with the ISA, and employers will be able to check registration status online. The legal requirement for new entrants and those moving jobs to register with the ISA, and for employers to check on their status, will come into force by November 2010. The intention is to bring the whole of the existing workforce into the scheme by 2015.

 
I will be delivering a paper about employment vetting at the Local Government Group conference on 29th April, and the paper will be available on 11KBW’s website after the conference.  For consideration of whether the existing PoVA list is compatible with articles 6 and 8 of the European Convention on Human Rights, see R (ota Wright) v Secretary of State [2009] UKHL 3.  For the timetable for implementing the 2006 Act, see here and here.

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Rowntree Report on Database State

March 23rd, 2009 by Anya Proops

The Joseph Rowntree Reform Trust has today published its report ‘The Database State’. The report purports to amount to the most comprehensive map of central government databases yet created. In total 46 databases across the major government departments were considered in the report, including, for example, the national DNA database, the national pupil database, the NHS detailed care record system and the automatic number-plate recognition system. In summary, the report concluded that:

  • a quarter of the 46 databases reviewed were ‘almost certainly illegal under human rights or data protection law; that they should be scrapped or substantially redesigned’ (including, for example, the Contactpoint index of all children in England and the national DNA database – on the latter database, see further the January 2009 post on the Marper case);
  • ‘more than half have significant problems with privacy or effectiveness and could fall foul of a legal challenge’ (including, for example, the NHS Summary Care Record and the National Pupil Database);
  • fewer than 15% were ‘effective, proportionate and necessary with a proper legal basis for any privacy instrusions’;
  • Britain was generally out of line with other developed countries as a result of its comparably greater tendancy to centralise and share records on sensitive matters like healthcare and social services; that ‘the benefits claimed for data sharing are often illusory’.

Along with the House of Lords Report on the Surveillance Society published in February 2009 (see further the February 2009 post on the Lords Report), this report is likely to increase pressure on the Government to reexamine a raft of policies on data collection, management and storage.

http://www.jrrt.org.uk/uploads/Database%20State.pdf

Executive Summary:

http://www.jrrt.org.uk/uploads/Database%20State%20-%20Executive%20Summary.pdf

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BMA Expresses Concerns about New Data Sharing Powers

February 18th, 2009 by Anya Proops

The Coroners and Justice Bill was introduced in the House of Commons on 14 January 2009. Clause 152 of the Bill provides for the Data Protection Act 1998 to be amended to include a number of new provisions on data sharing. Those provisions include a section which creates a broad general power enabling any ‘designated authority’ to make an ‘information sharing order’, which is to say an order which enables ‘any person to share information which consists of or includes personal data’ (new section 50A(1)). The relevant designated authorities’ are ‘appropriate Ministers’ (i.e. Secretaries of State, the Treasury and Ministers in charge of government departments); Scottish Ministers; Welsh Ministers and a Northern Ireland Department (new section 50A(2)). Whilst these broad powers are subject to a number of limitations including those provided for under new sections 50C, 50A(4) and 50A(6), this has not prevented concerns being expressed as to the potential risks entailed upon these new provisions. Most recently, in an interview with the Guardian (14 February 2009), the British Medical Association’s Chairman, Hamish Meldrum, confirmed that he was ‘extremely concerned’ about these new data sharing powers, not least because they would potentially enable Ministers to allow patient data to be shared not merely within the NHS but also with other ministries and even private companies. Mr Meldrum said that the trust between doctors and patients would be destroyed if the Bill became law as it stands. The new powers embodied in clause 152 of the Coroners and Justice Bill follow in the wake of the development of another significant and controversial data sharing scheme under which the medical records of everyone in England are to be uploaded onto a national database, known as the Spine.

The Bill:

http://www.publications.parliament.uk/pa/cm200809/cmbills/009/2009009.pdf

Guardian Articles:

http://www.guardian.co.uk/technology/2009/feb/14/medical-records-nhs-privacy

http://www.guardian.co.uk/society/2008/sep/18/health.nhs

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Appeal in Data Sharing Case

January 28th, 2009 by Anya Proops

The Information Tribunal has been seized by an appeal against a decision of the Information Commissioner in a case on data sharing. The Appellant requested information from the Cabinet Office relating to a Cabinet Committee which had been set up to consider data sharing in the public sector. The Cabinet Office disclosed some information. However, it refused to disclose minutes of the Committee’s meetings on the basis that they were exempt from disclosure under section 35 FOIA (policy exemption). The Cabinet Office also refused to disclose the names of junior civil servants who attended the meeting on the basis that this information was exempt under section 40(2) FOIA. The Commissioner held that that the Cabinet Office’s refusal to disclose the minutes was lawful. The Appellant is now appealing the Commissioner’s decision to the Tribunal.

Information Commissioner’s Decision Notice:

http://www.ico.gov.uk/upload/documents/decisionnotices/2008/fs_50177136.pdf

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Government Superdatabase

January 27th, 2009 by Anya Proops

Over the last few months, there has been considerable media coverage of Government plans to introduce a new ‘superdatabase’ designed to track all internet and telephone use. The stated purpose of the database is to assist law enforcement agencies by facilitating access to information currently held by individual Telecoms companies. It is expected that the Government will publish its detailed proposals later on this month. However, the new Director of Public Prosecutions, Kier Starmer QC has already expressed the view that, provided that proper safeguards are put in place, the database would be legitimate. Mr Starmer’s assessment contrasts starkly with that of his predecessor, Sir Ken MacDonald, who expressed the view that the database would create a ‘hell-house’ of personal privae information. The Information Commissioner has previously warned that the creation of such a database would raise serious data protection concerns (see his 15 July 2008 Press Release).

Draft Communications Data Bill:

http://www.commonsleader.gov.uk/output/Page2461.asp

Information Commissioner’s Press Release

http://www.ico.gov.uk/upload/documents/pressreleases/2008/annual_report_web_version.pdf

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Coroners and Justice Bill

January 24th, 2009 by Timothy Pitt-Payne QC

The Coroners and Justice Bill was introduced into the House of Commons on 14th January 2009 and will have its Second Reading on 26th January 2009.

 
The title sounds remote from information law; but Part 8 of the Bill contains some  important proposed amendments to the Data Protection Act 1998. 

In the first place, there are provisions giving the Information Commissioner new inspection and audit powers in relation to government departments and certain other public bodies, in order to assess their compliance with the Data Protection Act.  These appear to be a response to the well-publicised series of public sector data losses over the last year or so.

More controversially, the Bill makes provision for information-sharing orders, designed to facilitate the use of personal information for purposes other than those for which it was originally obtained.  Data sharing is a subject of long-standing debate (especially within the public sector);   it was recently considered in the Wolpert/Thomas data sharing review.  The Bill is intended to bring greater clarity to this area.   The proposals have however drawn a hostile response from some civil liberties groups concerned with personal privacy. 

For the full text of the Bill as introduced, see:

http://www.publications.parliament.uk/pa/cm200809/cmbills/009/2009009.pdf

For a Ministry of Justice paper explaining the various powers to make delegated legislation that are contained in the Bill, see:

http://www.justice.gov.uk/docs/coroners-justice-bill-memo-hol-delegated-powers.pdf

For the Wolpert/Thomas review, see:

http://www.justice.gov.uk/docs/data-sharing-review-report.pdf

For criticism of the proposals, see:

http://www.boingboing.net/2009/01/23/worstever-threat-to.html

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