I fought the law, and the law won (until the Law Commission recommended a review)

As many readers will know, earlier this week the Law Commission released their report into Data Sharing between Public Bodies.  Those desperate to know the outcome will already have worked their way through the weighty tome, but I thought I’d highlight a few points for those who might be contemplating it as holiday reading!

Law Commission report front cover imageThere’s no such thing as a perfectly rational actor

The influence of behavioural psychology and insight has spread far and wide (see the Behavioural Insight team, amongst others) and it seems that the Law Commission has taken this on board.  The report acknowledges that the development of legislation doesn’t happen in a vacuum – external factors such as current public preoccupations, high profile individuals and political movements all have an impact.  Likewise, the way that legislation is applied is also affected by a variety of factors.  The Law Commission are clear that those external factors are outside its control – but that they have had on impact on the development of legislation related to information sharing over the years, and should be considered when contemplating future reform, as non-legislative activity might (will!) be needed to support any legal changes, whether that means codes of practice, training or case studies and practical examples.

The picture is complicated (and getting more so)

One striking conclusion of the report is that the legal landscape around information sharing is enormously complicated.  When a scoping project, conducted by a Law Commission team, works on the topic for around nine months and concludes that a list of relevant legal gateways is beyond its resources, you know how complicated it is!  At least now if anyone asks the Centre for a comprehensive list, we can point to the Law Commission’s conclusions on the impracticality of the task.  The proliferation of specific gateways also makes organisations less willing to rely on wider powers (such as the Localism Act).  An increase in commissioning and innovative service delivery means we need to think about sharing with third and private sector organisations.  And alongside the enormous number of gateways, the report makes the point that many gateways duplicate one another or cover very similar territory, making it difficult for organisations to know which gateway they should use in which scenario.  The variety in interpreting gateways is also noted – as the report says, that isn’t strictly a legal problem, but it does highlight that there might be a problem stemming from legislation.  Which leads me to…

There’s a lack of resource and expertise in this area

The report notes that specialist legal expertise around information sharing is in short supply, particularly outside the big government departments and agencies.  In fact, from our point of view, the key is to look at all the factors influencing information sharing, not simply legislation, so while legal eagles and information governance gurus are a key part of the team, they’re not the whole story.  Information sharing isn’t a job in itself – it is the responsibility of all of us involved in developing and delivering public policy, and so it is often poorly acknowledged and under-resourced.  Part of the Centre’s mission is to get information sharing recognised as a key enabler of delivering better public services, so that conversations about information sharing law happen in context.  And the report’s conclusion, that the legislation needs clarifying and simplifying, will hopefully make it easier for bodies to agree information sharing approaches, without getting trapped in legal argument.

There are no easy answers

Information sharing queries are often a search for the absolute.  A straightforward yes or no answer to the question “Can I do this?”.  But, more often than not, there isn’t a simple answer – it comes down to a balance of risks and benefits, being innovative while maintaining safeguards, and being willing to take decisions, supported by evidence.  The report follows that same theme: there is a balance to be struck around the public interest (respecting the privacy of the individual, whilst also making best use of limited public funds for the benefit of all), around the burden we place on the state against the burden on the individual (such as the use of consent), and around the need to be strategic and future-proof legislation, against the need to be specific in order to prevent abuses.  Policy and guidance over the last few years has demonstrated that thinking about information sharing does swing backwards and forwards, and that creates inevitable challenges for those creating and using legislation.  We can’t get away from those challenges, but it shows that an active balance needs to be maintained, rather than letting things slide too far one way or the other.

In conclusion, the Law Commission recommends a full law reform project, which (if accepted) will take two to three years to complete.  The Law Commission also recommends that “soft law” solutions (such as guidance, training and sharing best practice) should be considered within that.  So the work of the Centre is likely to be of great interest to a reform project, and we will certainly be ready to contribute in any way we can.  And in the meantime, we will do our best to help resolve some of these issues on the ground, and move the conversation about information sharing forward.