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'Confusing' data sharing law in need of reform

11/07/14

Laws covering data sharing by public bodies cause misunderstanding and confusion and can be cleared up only by wholesale rewriting, the government's main adviser on law reform has said.

In a 190 page 'scoping report' the Law Commission, an independent panel of five leading legal experts, recommends that "a full law reform project should be carried out in order to create a principled and clear legal structure for data sharing, which will meet the needs of society." 

It says that needs for data sharing include efficient and effective government, the delivery of public services and the protection of privacy. "The project should include work to map, modernise, simplify and clarify the statutory provisions that permit and control data sharing and review the common law."

The scope of the review should extend beyond data sharing between public bodies to the disclosure of information between public bodies and other organisations carrying out public functions. It would need to be conducted by the UK's three different jurisdictions, England and Wales, Scotland and Northern Ireland.

Currently a public body can share data only when it has the legal power, which may be derived from common law or statutes, for example legislation creating "gateways". Ministers may also take advantage of the Royal prerogative and the so-called 'Ram doctrine', which states that a minister may "exercise any powers which the Crown has power to exercise" unless specifically precluded by statute.

Central government's attempts to clarify the position date back at least 12 years. However the commission says that only wholesale reform will achieve this.

Nicholas Paines QC, law commissioner for public law said: "Data sharing law must achieve a balance between the public interest in sharing information and the public interest in protecting privacy.

"We have identified widespread misunderstanding and confusion about the statutory framework for data sharing and its relationship with data protection, human rights and the common law. In our view, an effective, long-term solution can be achieved only through UK-wide law reform. A thorough analysis of law and practice, and reforms to modernise, simplify and clarify the provisions that permit and control data sharing are needed to restore confidence to the bodies that provide public services and the citizens that use them."

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