Consultation on devolved data sharing secondary legislation for the purposes of data sharing public service delivery powers, as defined in the Digital Economy Act (2017)
1. Digital Economy Act 2017
1.1 The UK Digital Economy Act received Royal Assent on 27 April 2017. Part 5 of the new Act introduces new information sharing provisions to support more efficient and effective digital public services.
1.2 The Digital Economy Act 2017 allows the UK Government, as well as the devolved governments, in certain cases, to specify additional objectives for which data can be shared, and to name the individuals and organisations that can make use of the data sharing powers the Act provides. Part 5 of the Act then regulates what data can be shared and for which purposes. It also includes safeguards to make sure that the privacy of citizens’ data is protected.
1.3 The UK Government has recently consulted on draft regulations ( Digital Economy Act, part 5: data sharing codes and regulations). The consultation set out four specific objectives for which data would be able to be shared under the public service delivery provisions and which specific, non-devolved bodies are able to use these powers for the objectives specified. The four objectives are:
- multiple disadvantages
- television retuning
- fuel poverty
- water poverty
The provisions of the Act on the last of these, water poverty, do not apply in Scotland.
1.4 We would like public bodies in Scotland, where this is appropriate and safe, to be able to make use of the new data sharing powers set out in Part 5 of the Act for the purposes of public services delivery. For the objectives specified in the draft Regulations which the UK Government consulted on, this would allow data to be shared between specified bodies. The Digital Economy Act does not contain a list of devolved “Scottish bodies” and, should this function be desirable, it is for the Scottish Parliament to approve separate Regulations. The Scottish Parliament consented to the Act applying to Scottish bodies in this way.
1.5 To be able to use the data sharing provisions in the Act a Scottish public body needs to demonstrate an express need to share data with another body for the purpose of delivering a specified public service. Additionally, in this context, that specified public service delivery function must meet one of the 3 objectives relevant to Scotland (outlined in Annex A) to be specified in the UK Government Regulations.
2. Public Service Delivery
2.1 The Digital Economy Act 2017 contains powers for a specified authority to share data with another specified authority for the purpose of public service delivery. Under the public service delivery power a “specified authority” is a public body listed in schedule 4 of the Act.
2.2 Section 35 of the Act provides a power for the “appropriate national authority” to amend the list of approved public bodies in schedule 4—that is to add, remove or modify entries in the schedule. In Scotland the Scottish Government is the appropriate national authority, subject to the approval of regulations by the Scottish Parliament.
2.3 Section 35 also provides powers for the appropriate national authority to specify in regulations objectives which meet the conditions set out at 2.4 (below). This section of the Act also enables appropriate national authorities to specify objectives in relation to persons or bodies which are detailed in schedule 4.
2.4 An objective may be specified by regulations only if:
(a) the objective has as its purpose:
(i) the improvement or targeting of a public service provided to individuals or households, or
(ii) the facilitation of the provision of a benefit (whether or not financial) to individuals or households.
(b) the objective has as its purpose the improvement of the well-being of individuals or households.
(c) the objective has as its purpose the supporting of:
(i) the delivery of a specified person’s functions, or
(ii) the administration, monitoring or enforcement of a specified person’s functions.
3. Data Sharing and Scottish bodies
3.1 We would like to be able to make use of the new powers for the objectives which the UK Government has identified. To do this, we need to specify any devolved Scottish bodies that would be able to make use of the data sharing powers outlined in the Act to be capable of using the power in respect of any reserved authority. In addition, the UK Government must specify which specified objectives are relevant to the relevant specified authorities.
3.2 Annex B lists those Scottish public bodies which we believe would be able to make use of the data sharing powers with reserved bodies, whose work links to one or more of the 3 objectives relevant to Scotland that have been set by the UK Government. Annex C contains short draft Regulations which we are consulting on under section 44(4) of Act, and which would be laid before the Scottish Parliament to add the relevant Scottish bodies into schedule 4 of the Act if approved.
3.3 In addition to listing Scottish public authorities to be added to the schedules, Regulations approved by the Scottish Parliament can also be used to create specific devolved objectives, aimed at improved information sharing for public service delivery, between devolved authorities within Scotland. We are not consulting on this issue within this consultation, but we may wish to identify and consult on devolved Scottish-only objectives at a later date.
4.1 The current consultation sets out the public bodies in Scotland we would like to name in the legislation as being able to make use of the new powers under the objectives that have been set by the UK Government, and the draft Regulations to do so. We would like to know your views on whether the public bodies we have identified are the right ones, and whether there are other public bodies we could include.
4.2 Please note that sharing data under the Act will be in addition to any data sharing that can take place under existing legislation applying to public bodies. The Act does not exempt authorities from data protection controls (currently the Data Protection Act 1998 – see section 40(8) of the Act). Nor does it impose binding duties on public authorities to share data. The provisions will only give those bodies the power to share data where they can justify this in line with the objectives and conditions under Part 5 of the Act. Criminal offences for unauthorised disclosure of personal information are also created by section 41 of the Act.
4.3 We are also interested in hearing your views on what further objectives we might need to enable Scottish public bodies to share data; in particular, any objectives which might enable sharing with reserved public bodies for the purposes of improved public service delivery.
4.4 The current consultation is limited to the 3 objectives relevant to Scotland being delivered by UK Government regulations, and is driven by UK Government timescales. We are currently exploring the requirement for further objectives, with a view to considering whether to consult again on further detailed proposals. We would therefore also like your views on what devolved objectives we could set for Scotland in the future, and the Scottish public bodies we could name to support those objectives.
5. Next Steps
5.1 Following this consultation and analysis of your responses, we will finalise a list of Scottish public bodies which will then be included in the Regulations. This legislation will be laid in the Scottish Parliament for approval, which if approved will allow the bodies named to make use of the data sharing powers for the objectives to be specified in the draft Digital Government (Disclosure of Information) Regulations 2017 (laid in Westminster), consulted on by the UK Government.
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