Census disclosures do not breach human rights

Disclosures of personal information gathered as part of the 2011 census, made during a criminal investigation or proceedings, do not breach rights to privacy under Article 8, the High Court has ruled.

Mohammed Ali, who lives in Coventry, and an Afghan national known as ‘SJ’ brought a judicial review against the Minister for the Cabinet Office and the Statistics Board.

The court heard that they were concerned that information gathered by the census might be transferred abroad as part of a “foreign criminal investigation”, perhaps for a minor offence.

Ali completed the census form while SJ, a refugee, refused to, saying he was particularly concerned that personal details would be disclosed to “external agencies, including the Afghan authorities”.

Mr Justice Beatson said there were three arguments at the heart of the claimants’ case.

The first was that, because census information was provided under compulsion in the form of a criminal sanction, particular weight needed to be given to the protection of its confidentiality.

“The second is that the absence of criteria for disclosure mean that the regime does not constitute a clear, transparent and sufficiently predictable body of law and thus does not satisfy the requirement in Article 8(2) that any disclosure be ‘in accordance with the law’,” Beatson J said.

“The third, and related submission, is that the absence of such criteria means there is no adequate way of assessing whether any such disclosure that is being considered or has been made would be or is proportionate.”

The Statistics Board argued that appropriate protection was in place to protect the confidentiality of information through the Data Protection Act 1998, the Human Rights Act 1998 and its policy of refusing requests for disclosure where it was lawful to do so.

Beatson J said Article 8 contained “implicit procedural safeguards” to ensure that decision-making processes were fair.

“But, in a case in which there is a risk of imperilling the investigation or proceedings, the fact that the data subject is not informed or not informed in advance will not, of itself, constitute a breach of Article 8.”

What was required was “an assessment of the decision-making process as a whole”, he said.

“I do not consider the fact that, in the case of data processed for the prevention or detection of crime, the fact that the conditions do not explicitly refer to the seriousness of the criminal offence in question means that they are insufficient. “First, there is no duty on the board to comply with a request for disclosure for the investigation or prosecution of a minor offence, such as the traffic infraction canvassed during the hearing.

“Secondly, the board, as a public body, would be obliged by section 6 of the Human Rights Act not to order a disclosure which was a disproportionate interference with the data subject’s Article 8 rights.”

Beatson J said the board’s policy was not to disclose information unless a court order was made requiring it to.

He said the regime contained in the DPA 1998, the HRA 1998 and the Statistics and Registration Act 2007, which established the Statistics Board, constituted a “sufficiently accessible and predictable” body of law for the purposes of Article 8.

“The board’s policy to refuse to disclose personal census data unless compelled by a court provides an important additional safeguard. It means that, looking at the decision-making process as a whole, the interests of the data subject will be adequately protected.”

Beatson J dismissed the claimants' application for a declaration.