Consent to Information SharingThe key issue with all of the existing and proposed database systems is that of gaining the consent of those to whom the information refers. As we have shown over the last couple of weeks, information may be shared without any consent whatsoever, or refusal of consent may be overridden by purported reliance on general, discretionary statutory provisions.
To give some examples of the vague powers being invoked to share data without consent: s2 Local Government Act 2000 gives a local authority (LA) power to do anything that promotes the economic, social and environmental well-being of their area. s37 Crime and Disorder Act 1998 requires that LAs should have the aim of preventing offending by children. s175 Education Act 2002 requires schools and LEAs to carry out their functions ‘with a view’ to safeguarding children’s welfare.
More specific information-sharing powers are provided by s114-121 of the Learning and Skills Act 2000, by s115 Crime & Disorder Act – which allows information to be shared where it is ‘expedient’- and, of course, by s12 Children Act 2004
As the potential to share information has increased, so, too, has the guidance to agencies on whether, when and how consent should be sought before sharing. We’ve already mentioned the Youth Justice Board’s ‘ID50’ guidance; elsewhere, other YJB guidance on sharing information about those thought to be potential young offenders advises that: “obtaining consent remains a matter of good practice, as opposed to a requirement of law”.
The Department for Constitutional Affairs data-sharing toolkit implies that agencies can rely upon a range of implied powers to share information, and suggests that: “If there is no existing legal power for the proposed data collection and sharing, then consideration should be given to establishing a statutory basis by enacting new legislation”.
s12 Children Act 2004 means that there is no requirement to obtain consent in order to populate the proposed Children’s Index, and the entire ethos of the ‘Every Child Matters’ agenda is one of widespread information-sharing. After considerable protest from various agencies, the DfES has now said, in its most recent guidance, that consent should normally be sought before sharing information – but this guidance is non-statutory and ultimately it will be for each local area to develop its own information-sharing protocol.
It is also important to consider what ‘informed consent’ actually means. We’ll look at that tomorrow.