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"Roxanne Krieger" (2018-12-08)

The battle for the past is lost. As he says, it converts a legal principle into an exercise of judicial discretion, in the process exhibiting all the vices of "complexity, uncertainty, arbitrariness and lack of transparency" which Lord Toulson attributes to the present law. I agree with Lord Sumption that this is far too vague and potentially far too wide to serve as the basis on which a person may be denied his legal rights. The terms in which that duty is imposed do not, on the other hand, meet the requirements of condition 5(b) in Schedule 2 and condition 7(1)(b) in Schedule 3.

NRI-LEGAL-SERVICES.pngThe illegality defence deprives claimants of their legal rights. The legal argument necessarily shifts. The test imposed by condition 5(b) in Schedule 2 and condition 7(1)(b) NRI Legal in Schedule 3 to the DPA requires that disclosure must be "necessary" for the exercise of statutory functions (which must again refer to the functions of the person to whom the disclosure is made, given that section 35(1), read with section 27, requires that a data processor who is under a statutory duty to make the disclosure must comply with Schedules 2 and 3: a requirement which would be pointless if it were met ex hypothesi).

The meaning of "necessary" was considered by this court in South Lanarkshire Council v Scottish Information Comr [2013] UKSC 55; 2014 SC (UKSC) 1; [2013] 1 WLR 2421. Disclosure where the data processor considers that the information is likely to be relevant cannot be regarded as necessary if the legitimate aim could be achieved by something less. There are two points to highlight about the nature and purpose of the policy. That deficiency is not made good by the requirement that nrillegalservices the data controller considers that the information ought to be provided.

As was explained there at paras 25-27, it is an expression whose meaning depends on the context in which it falls to be applied. As the House of Lords recognised in Swain v The NRI Lawyers Law Society [1983] 1 AC 598, 610, the paramount purpose of The Law Society being given statutory power to require solicitors to maintain insurance cover against professional liability was "the protection of that section of the public that makes use of the services of solicitors" NRI Lawyers (Lord Diplock).

Relevance is a relatively low threshold: information may be relevant but of little significance. It will be necessary to return to the question of proportionality when we consider the challenge to the legislation under article 8. The argument leans on the ready made American doctrine of prospective overruling. No legal argument can restore the NRI outmoded feudal zemindari system. These matters are important when considering its scope. What has been done cannot be undone. Choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities.

It cannot be "necessary", in that sense, to disclose information merely on the ground that it is objectively relevant, let alone on the ground that a particular body considers that it is likely to be relevant. The second, and related point, is that the policy describes itself as a professional liability policy. A test of potential relevance fails to recognise the need to weigh the importance of the disclosure in achieving a legitimate aim against the importance of the interference with the individual’s right to respect for her private and family life.

One is that the relevant terms replicate the minimum terms of the cover which Barrington was required to maintain under the Solicitors’ Indemnity Insurance Rules 2009. The correct response for us is not to leave the problem to a case by case evaluation by the NRI Legal services lower courts by reference to a potentially unlimited range of factors, but to address the problem by supplying a framework of principle which accommodates legitimate concerns about the present law.

The fundamental reason for applying the manifestly without reasonable foundation test in cases about inequality in welfare systems was given by the Grand Chamber in Stec (para 52). The imposition of a statutory duty of disclosure by sections 23(2), 26(1) and 26(3) of the 2014 Act has the consequence that condition 3 in Schedule 2 to the DPA is satisfied. Where the disclosure of information constitutes an interference with rights protected by article 8 of the ECHR, as in the present context (as explained at paras 75-77 below), the requirement that disclosure is "necessary" forms part of a proportionality test: the disclosure must involve the least interference with the right to respect for private and family life which is required for the achievement of the legitimate aim pursued.

The proposition now is that the Constitution Amendment Acts must be recognized to be valid in the past but they must be struck down for the future. In each case, the data controller is required by the 2014 Act to disclose personal data to a third party if he "considers" that the data are "likely to be relevant" to the exercise of certain statutory functions by the third party and "ought to be provided for that purpose".