I will be discussing the draft article below, which is to be posted on
our OUT-LAW web-site later on Monday, at our update sessions in London,
Manchester, B'ham and Glasgow). Details from
http://www.pinsentmasons.com/media/530983003.pdf 

Chris


Has the UK failed to implement one third of the Data Protection
Directive?

A European Commission has written twice to the UK Government to claim
that the UK's Data Protection Act (DPA) does not implement a third of
Data Protection Directive properly. The Ministry of Justice has rejected
this claim and has told OUT-LAW.COM that the UK Government believes it
has implemented the Directive fully. 

Using freedom of information legislation, OUT-LAW.COM has been able to
identify the 11 problematic Articles that have been raised by the
Commission in these letters, even though  the Government has  refused to
provide these details  to Parliament. 

In June 2005, Labour MP Harry Cohen, asked the Government to describe
the problems the Commission had identified when it said that the DPA was
a defective implementation of the Directive. He was told "We currently
have no plans to disclose the detail of those discussions as the formal
Commission investigation process is still taking place" and that  "If
the Government were to disclose the information requested, it would
prejudice the negotiating process between the UK and the Commission and
so prejudice UK interests".

However, OUT-LAW.COM can now reveal that the parts of the Directive with
which the Commission claim that have not been implemented properly. They
are Articles 2, 3, 8, 10, 11, 12, 13, 22, 23, 25, and 28; this is just
under a third of the 34 Articles in the Directive.

These Articles relate to: the definitions used in the Directive (e.g.
the meaning of personal data); the scope of the Directive's application
to manual files; the conditions when sensitive personal data can be
processed; the fair processing notices give to individuals; the rights
granted to data subjects; the application of exemptions from these
rights; the ability of individuals to seek a remedy when there is a
breach; the  liability of organisations for breaches of data protection
law; the transfer of personal data outside European Union, and the
powers of the Information Commissioner.

Data Protection expert Dr Chris Pounder of Pinsent Masons, the law firm
behind OUT-LAW.COM, said that the extent of the objections reflects
official attitude towards data protection policy. He said: "All  UK
Governments involved in implementing the Directive have had a policy of
minimising the Data Protection Directive's effect. The number of
problems raised by the Commission seem to indicate that the UK
Government may have misjudged the situation and minimised the effect of
too many obligations".

Dr Pounder added "The  fact that the Commission have a problem with
about a third of the Articles in the Directive is a surprise" and that
"I had expected a handful of objections which were linked to the Court
of Appeal decision in the case of Durant which had narrowed the scope of
personal data". He continued "Instead  there appears to be unexpected
issues  - for example, in relation to transfers, fair processing
notices, exemptions, powers of the Commissioner, penalties and
remedies".

The Commission's investigations were not prompted by a complaint, they
were initiated by the Commission itself. However, a statement from the
Ministry of Justice states that "The European Commission, as part of its
review of the implementation of the 1995 Data Protection Directive by
each member state, have raised a number of issues with the UK" . The
statement continued "We are in discussion with the Commission about
these issues. We believe that the UK has properly implemented the Data
Protection Directive via the Data Protection Act 1998 and other relevant
provisions of UK law". 

The issue will be discussed at Pinsent Masons data protection update
sessions (details from http://www.pinsentmasons.com/media/530983003.pdf.


Provide links to:
Durant ends his data protection battle, OUT-LAW News, 12/10/2005
Also, can you refer to an Out-law article on my FOI requests (around
18/09/2006)
 


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