Thanks to those who commented.
I am reasonably content with my original analysis.
On the ICO guidance (esp. para 51) where there is a statutory function I am not sure if this really survives GDPR.
I was always a bit dubious about s 1(4) DPA 1998 on which it was based as this could in some circumstances possibly be incompatible with the directive definition of data controller - particularly where both parties had statutory duties.
However s6(2) of DPA 2018 is actually very different as it adds s6(2) (b) which was not in the 1998 Act.
I don't see how ICO advice can survive that change in its present form. Take as an example a small LA 'contracting out' its Social Services functions to a neighbouring large LA. The provider and its staff including solicitors and social workers will be, through professional expertise, determining means. s6(2)(b) does not therefore require them to be merely 'processors'.
Similarly in the NHS one body which has the primary duty to provide a particular service in its area (perhaps a community Trust) often commissions another (the overlapping acute Trust) to provide some of the required clinical services. On any analysis of the ICO guidance that is 'controller work' and applying s6 2018 rather than s1 1998 we are not required to regard that as nevertheless a pure processing arrangement - if indeed that was ever compatible with the Directive.
I am currently working in the NHS and the difference s6(2)(b) makes has perhaps not been widely appreciated ....
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