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8. CONSENT TO INFORMATION-SHARING The key issue with all of the existing and proposed database systems is
that of gaining the consent of those to whom the information refers – the
‘data subjects’. Information is sometimes shared without the consent or
knowledge of data subjects. Where consent is sought, but refused, that
refusal may be overridden – sometimes by purported reliance on general,
discretionary statutory provisions. To give some examples of the general powers being invoked to share data without consent: · s2 Local Government Act 2000 gives a local authority (LA) a discretionary power to do anything that promotes the economic, social and environmental well-being of their area · s37 Crime and Disorder Act 1998 requires that LAs should have the aim of preventing offending by children · s175 Education Act 2002 requires schools and LEAs to carry out their
functions ‘with a view’ to safeguarding children’s welfare More specific information-sharing powers are provided by: · s114-121 of the Learning and Skills Act 2000 · s115 Crime & Disorder Act – which allows information to be shared where it is ‘expedient’ · s12 Children Act 2004 As the potential to share information has increased, so, too, has the
range of guidance to agencies on whether, when and how consent should be
sought before sharing. The Youth Justice Board’s ‘ID50’ guidance has been mentioned
before;
a further set of guidance issued by the YJB on sharing information about
those thought to be potential young offenders advises that: “obtaining
consent remains a matter of good practice, as opposed to a requirement of
law”. The Department for Constitutional Affairs has produced a data-sharing
toolkit which implies that agencies can rely upon discretionary powers to
share information, and suggests that: “If there is no existing legal power
for the proposed data collection and sharing, then consideration should be
given to establishing a statutory basis by enacting new legislation”. The effect of s12 Children Act 2004 is to obviate any need for consent in
order to populate the proposed Children’s Index, and the underlying ethos of
the ‘Every Child Matters’ agenda is one of information-sharing. The DfES has indicated in its most recent, non-statutory guidance that practitioners should normally seek consent before sharing any confidential information that they hold about a child and his/her family.
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