The Law Commission has this month recommended 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”.
Concluding the scoping stage of its Data Sharing between Public Bodies project, the law reform advisory body said these needs included efficient and effective government, the delivery of public services and the protection of privacy.
“Data sharing law must accord with emerging European law and cope with technological advances," it added. " 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 Law Commission has also recommended that 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.
The report said the full project could usefully include consideration of the functions of the Information Commissioner in relation to data sharing, including the watchdog’s enforcement role.
This particular announcement has been welcomed by law firm DAC Beachcroft, which (in its submission to the consultation) proposed amendment of the legislation so as to require the Information Commissioner to publish details of his consideration of Data Protection Act 1998 issues.
“It was said to be notable that case law from the courts in both data protection and confidentiality was lacking, so that these decisions would help to provide guidance,” the Commission’s report said.
Judith Barnes, Partner at DAC Beachcroft, said: "The issue of data sharing is complex and challenging. Via a hat-trick of workshops, our team of legal experts, along with clients and contacts, set about identifying key practical and legal issues.
"We are delighted that the content generated from the workshops – especially a proposal that the Information Commissioner publishes decisions – has featured significantly in this crucial report that should ultimately help public bodies to share data more effectively and go some way to assisting with the integration of health and social care if the law in this area is simplified."
In its report the Commission also suggested that the work of other bodies providing advice and guidance in addition to the ICO should be explored to improve the consistent application of data sharing law across government and in public service delivery more widely.
The law reform advisory board said the full investigation should include consideration of ‘soft law’ solutions such as codes of practice, as well as advice and guidance, training of staff, and ways of sharing best practice in the management of data sharing between public bodies.
On publishing the scoping report, the Law Commission said: “Data sharing affects us all. Public bodies report that they cannot always share the data they need to share and, as a result, miss out on opportunities to provide better services to citizens.
“At the same time, the protection of privacy is fundamental to any data sharing regime. The law surrounding data sharing is complex. Powers to share data are scattered across a very large number of statutes and may be set out expressly or implied. In addition, there are common law powers. ”
The Commission said the project should be conducted on a tripartite basis by the Law Commission of England and Wales, together with the Scottish Law Commission and the Northern Ireland Law Commission.
Its report, Data Sharing between Public Bodies, A Scoping Report, can be viewed here.