A well respected privacy commentator has made a wise remark. He said of Nick Clegg’s speech as enthusiastically reported yesterday: “I'll wait to see the fine print”. Well, in my experience this cautious approach is well justified.
Back in 1990s, when I was perhaps a bit more “active” than I am now, I used to brief several opposition Labour MPs on data protection issues. In opposition, there was no difficulty in raising problems in connection with data protection; however, as soon as the 1997 General Election was over, things changed dramatically. I remember once that I was exploring a data matching issue in relation to benefit fraud and, in particular, the absence of obvious safeguards on the data sharing front. I was told by two Labour MPs that – “Sorry – I can’t be seen as a friend of the benefit cheat” and “We are in Government now; we can’t oppose in the same way”.
Indeed, shortly after being elected, the New Labour Government introduced a Data Protection Bill which adopted a minimalist approach to the implementation of Directive 95/46/EC. The MP who I had worked with over the past 15 years told me that he had been promised by the Whips that he was to be selected for the Committee that examined the Bill. So I worked tirelessly on several probing amendments that were tabled for debate by that Committee after Second Reading.
However, due to a “misunderstanding” (which I think was more deliberate than accidental), the MP was not chosen by the Whips and the Common’s Standing Committee was stacked with loyal MPs who knew little about the subject. What I think happened was that in my naivety, the tabling of amendments showed the Whips that there might be “trouble ahead” and a “misunderstanding” was engineered. All the amendments fell; they could not be selected for debate as the MP who tabled them was not a member of the Committee.
So what is the relevance of this for today? Well I think that when the dust has settled on that Clegg Speech and legislation is introduced, it could fall short of what is required in a number of important areas. For example, Clegg did not mention yesterday that there would be a strengthened Information Commissioner. So, suppose for the sake of argument that such strengthening provisions are absent in the relevant Parliamentary “Great Reform Bill” when it appears.
I can see all sorts of privacy activists using their contacts and lobbying for a change to the powers of the Commissioner, and I can anticipate the response will be exactly that I received. For example, “we are in coalition – we can’t rock the boat” or “we are scrapping the ID Card for you – can you accept that for a start as anything else is risky at the moment”.
These activists could then turn to mainstream Labour Party MPs, now in opposition. However, this does not really appeal. Would you like to ask Jack Straw etc to improve privacy legislation when in Government they systematically did the opposite? In fact, most established political old-hands would see the obvious trap and would avoid anything that risked raising, in Parliamentary debate, their previous record in the diminishing of data protection.
In other words, the main privacy opposition to this Government (if it falls short) will arise from the political fringe. This is the left of the Labour Party (which is always sidelined by Labour when in Government) or the handful of nationalists or the solitary Green. Being on the fringe has its disadvantage: what is said can be safely ignored by Ministers as being “loony left” or something similar. That is why, the next few years for privacy activists could be hard – especially if Government resurrect ambitious data sharing plans using the argument that increased data sharing would save lots of money.
Finally, I have to comment on the Clegg pledge to: “We will ask you which laws you think should go”. Well, I think of one law that is likely to come top of that list – it is the Data Protection Act – if organisations such as the British Chamber of Commerce (BCC) have its way! The BCC’s “Burdens Barometer” regularly has Data Protection on top of its repeal agenda.
