4. Memorandum from the Information
The Information Commissioner has the dual responsibility
for enforcing data protection and freedom of information legislation.
The Data Protection Act 1998 (the 1998 Act)
replaced with effect from 1 March 2000 the Data Protection Act
1984 (the 1984 Act). The Act gives rights to individuals and places
obligations on data controllers to be open about how information
about individuals is used and to follow eight principles of good
information handling practice.
The Freedom of Information Act 2000 (the 2000
Act) gives, subject to exemptions, a general right of access to
all types of "recorded" information held by public authorities
subject to exemptions. Implementation will be gradual; however,
it must be brought fully into force by 30 November 2005.
UK Data protection law was initially defined
by the Data Protection Act 1984 which enabled the UK to ratify
the 1981 Council of Europe Data Protection Convention (European
Treaty Series 108). Convention 108 exists to secure a balance
between the right to privacy and the right to freedom of expression
found in Articles 8 and 10 of the European Convention on Human
Rights. Article 1 of the Convention gives its purpose as:
". . . to secure . . . for every individual
. . . Respect for his rights and fundamental freedoms, and in
particular his right to privacy, with regard to automatic processing
of personal data relating to him (`data protection')."
This human rights background has been further
strengthened by the European Union Data Protection Directive (95/46/EC).
The 1998 Act which repealed the 1984 Act reflects the requirements
laid down in this directive. Article 1 of the directive provides
"In accordance with this directive, Member
States shall protect the fundamental rights and freedoms of natural
persons, and in particular their right to privacy with respect
to the processing of personal data."
More recently the European Union recognised
not only the right to respect for private life but also specifically
the right to protection of personal data in Articles 7 and 8 of
The Charter of Fundamental Rights of the European Union (the Nice
Although UK Freedom of Information legislation
was not developed from specific requirements of European or International
Human Rights instruments, the law is fundamentally related to
freedom of expression and the notion of a democratic society.
But it is particularly noteworthy that Article 42 of the Nice
Charter gives an explicit right of access to European Parliament,
Council and Commission documents.
It is clear that both the 1998 Act and the 2000
Act fall within the Human Rights domain and proposals for a Human
Rights Commission would therefore have significant consequences
for the Commissioner and the legislation she enforces.
Data Protection and Freedom of Information should
not be seen as opposed to each other. However, there may be occasions
where an acceptable balance will need to be found between the
competing values of freedom of information and personal privacy.
Having a joint Commissioner for both pieces of legislation has
a particular administrative benefit in allowing an integrated
and coherent approach to information handling.
We welcome the Human Rights Act 1998 because
it places the present legislation that falls within the responsibility
of the Information Commissioner, in an appropriate and relevant
context. The Human Rights Act is a particularly relevant aid to
interpreting both pieces of legislation because of their specific
origins in human rights instruments.
3.0 The subsequent paragraphs follow the
numbering of the questions in the Committee's Call for Evidence.
3.1 There is certainly some merit in establishing
a Human Rights Commission. Whilst there is some debate about the
limit of its powers, a Commission would be in a position to co-ordinate
the views and activities of existing bodies that have a responsibility
for the protection of some aspects of human rights. An appropriate
initial approach may be to start off with a relatively small brief.
Possibly with the Commission addressing particular problem issues,
assisting in the creation of a human rights culture and carrying
out an educational role. The Commission should not act primarily
as an enforcement body but by bringing legal proceedings that
concern the wider public interest it could help to test or clarify
the law. A distinction will need to be drawn between cases that
support this strategy and others, to ensure that public funding
is used effectively. A Commission with full enforcement powers
might prove expensive and may duplicate the work already covered
by other agencies.
3.2 If a Human Rights Commission were established,
it should work collaboratively with the Committee reporting to
Parliament, but the Commission should be an independent statutory
body with the necessary powers and finance to carry out a high
profile public role. One of its purposes would be to play an advisory
role to the Committee, allowing the Committee to draw on the expertise
of the members of the Commission.
3.3 The priority of a Human Rights Commission
should be to raise the profile of human rights in the UK by carrying
out an educational and culture development role. The main focus
should be establishing a culture of human rights rather than becoming
involved in the legal processes, except perhaps as explained in
the answer to question 1.
The strategy of the Information Commissioner
is to seek to promote best practice by advice and education. If
a Human Rights Commission were to be set up, this modus operandi
would appear a most appropriate use of resources and may prevent
the need for later enforcement.
3.4 If the Commission is to be seen as a
public body assisting the development of democratic culture and
working with Parliament there is an argument for similar bodies
working with each of the devolved Parliaments or Assemblies.
3.5 We would expect all the Commissions
to have wide functional, if in some cases territorially limited,
jurisdiction. The Commissions should agree between themselves
which should lead on particular issues and cases.
3.6 The Commission should be established
as an umbrella organisation, where existing bodies would retain
their own jurisdictions but be brought within the umbrella of
the Commission. The umbrella body would provide an opportunity
for co-operation between existing organisations, thus avoiding
potential conflicts and providing a framework for the sharing
of views. Its purpose would be to provide a forum for discussion
and to enhance the effectiveness of these organisations, not to
take over specialist areas that are already well established.
The primary advantages of a Commission would, on the one hand,
be a means of developing thinking on matters relating to fundamental
rights and of giving Parliament authoritative advice. On the other
hand it would be a means of bringing together and, if necessary,
reconciling the work of those enforcing different aspects of fundamental
rights. For example potential conflicts between privacy and freedom
3.7 To maintain its independence and freedom
of action to carry out its role effectively, the Commission should
report to the Human Rights Parliamentary Committee rather than
to Ministers. The staff would be appointed by the Commission itself,
on conventional public sector terms. The majority of members should
be drawn from those bodies under the umbrella of the Commission,
but the Chair and extra members could be appointed in a number
of different ways. Two possibilities might be:
1. Appointments could be made by arrangements
presently common in a number of Francophone countries where they
are drawn from nominations of other bodies such as Courts and
Houses of Parliament; or
2. The North American approach could be adopted
where these types of appointments are subject to confirmation
hearings before Parliament, prior to the Chair and the members
being finally approved. There is already in this country some
precedent, for example, in the case of Parliamentary hearings
for the appointment to the Monetary Policy Committee.
3.8 A staff of 12-20 people would seem appropriate
in view of how we envisage the Commission operating. These staff
should be committed to high-level co-ordination, conducting or
commissioning research, and carrying out the other functions of
The size of the annual budget would depend on
the extent to which the Commission would be expected to undertake
independent publicity and litigation.
3.9 To reiterate much of what has been provided
in our response to previous questions, we consider that initially
the Commission should concentrate on promoting an awareness of
human rights and good practice and for this purpose undertake
research and educational activities. The idea of the Commission
being treated as an enforcement body is, we consider, premature.
However, the Commission should be able to initiate legal proceedings
in cases that are considered in the public interest as previously
described in question 1. The Commission should also be able to
act as a amicus curiae to provide factual information and
expert advice to the court in other cases.
27 June 2001