New, weaker data protection laws looming?

Friday afternoon – what a splendid day to bury bad news!

You can read the above blogpost by Mariano delli Santi here

It relates to this policy announcement by the Culture Secretary.

“New data laws to boost British business, protect consumers and seize the benefits of Brexit”

Gov UK 17 June 2022

One of the several worrying things is what happens to the Information Commissioner – who regulates all things data protection and freedom of information. His office has been under-resourced ever since its inception. In my opinion at least.

“the UK Data Reform Bill will codify cronyism into law. The Secretary of State is being given the power to arbitrarily amend the Commissioner’s salary, issue “a statement of priorities” to their Office, and vetoing the adoption of statutory codes and guidance, thus exposing the ICO to political direction, corporate capture and corruption”

Open Rights Group (MdS) 17 June 2022

For a regulator to be effective, they have to be politically and functionally independent from and of ministers. I expect the great and the good will both shred this in blogposts and articles, while at the sigh in despair at the same time knowing that the House of Commons won’t do anything substantive to change it.

“Why the despair?”

Here’s the former Cabinet Secretary Lord Turnbull on Newsnight.

The resignation of *another* adviser on standards to the Prime Minister is *not normal*

And it was this Prime Minister who appointed one of his closest allies as Culture Secretary to drive through (amongst other things) the controversial privatisation of Channel 4. Which has divided opinion again – and perhaps more dangerously for the Prime Minister and the Conservatives generally, created a new set of adversaries that might otherwise have stayed out of the political rough and tumble.

As the Institute for Government’s Dr Cath Haddon states:

“Lord Geidt’s resignation must lead to a stronger standards system “

Dr Cath Haddon, Institute for Government, 17 June 2022

And if the Prime Minister is unwilling to do it based on the existing, broken system that he has played a very large part in breaking, the pressure from opposition parties and the wider public will grow for a more radical overhaul of our political structures, systems, and processes later on down the line.

“If the public feel that the principles at the heart of the code cannot be upheld by a system based solely on convention, they will press for strengthening. If they feel the prime minister does not seem to abide by the standards he claims to want to defend, and the system is unable to protect them from him, the inevitable solution is greater strengthening, therefore codification.”

Dr Cath Haddon, Institute for Government, 17 June 2022

Dr Haddon mentions ‘codification’ – i.e. taking things out of convention and putting them into law – or strengthening existing laws that enable the courts/judiciary to intervene. What could this mean in practice? It could mean a new government tabling new legislation that says ‘when a minister has misled the house, that minister *must* resign.’

What we have at the moment in various bits of legislation is that named office holders have to ensure that a Code or a document exists, and that its content covers specific issues. Take the Constitutional Reform and Governance Act 2010. It says:

“The Minister for the Civil Service must publish a code of conduct for special advisers”

Part 1 S8(1) of the Constitutional Reform and Governance Act 2010

It does not give chapter and verse on what constitutes breaking said Code, nor does it set out what penalties are given for breaking it either. Hence why special advisers – and ministers have been able to get away with staying in post when in previous generations they would have had the ‘personal sense of honour and integrity to resign’.

Put more detail whether in primary or secondary legislation (an Act of Parliament, or Regulations made under an enabling clause within an Act of Parliament (eg “The minister may make regulations dealing with codes of conduct…”) that says “A public office holder must resign if they breach the given Code” and very quickly the courts become involved in defining through case law 1) what constitutes a breach of the Code, and 2) whether or not a named individual subject to it has breached that Code and should be compelled by law to resign.

Because of his reckless behaviour, the Prime Minister has given his opponents the political ammunition to bring in a much tougher standards system – one that indicates the ‘good chap’ convention is now irreparably broken and one that will have the power to override the authority of a future prime minister. But then perhaps this might not be a bad thing after all.

Food for thought?

I used to write lots on politics and the civil service – being a former civil servant myself. Every so often I get dragged back into that territory. These days I try to keep things local (in and around Cambridge – esp following recent stays in hospital. Feel free to support my continued blogging if you are able to:

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