Using freedom of information legislation, OUT-LAW.COM has learned that 11 articles are the subject of two Commission letters to the UK Government, even though the Government has refused to provide these details to Parliament. The Ministry of Justice has rejected the Commission's claims and told OUT-LAW.COM that the UK Government believes it has implemented the Directive fully.
In June 2005, Labour MP Harry Cohen asked the Government exactly what problems the Commission had identified when it said that the DPA was a defective implementation of the Directive.
Parliamentary undersecretary Bridget Prentice refused to answer.
"We currently have no plans to disclose the detail of those discussions as the formal Commission investigation process is still taking place," she said. "If the Government were to disclose the information requested, it would prejudice the negotiating process between the UK and the Commission and so prejudice UK interests".
The articles of the Directive which the Commission claims have not been implemented properly are articles 2, 3, 8, 10, 11, 12, 13, 22, 23, 25 and 28 – just under a third of the 34 articles in the Directive.
These Articles relate to: the definitions used in the Directive (e.g. the meaning of personal data); the scope of the Directive's application to manual files; the conditions when sensitive personal data can be processed; the fair processing notices give to individuals; the rights granted to data subjects; the application of exemptions from these rights; the ability of individuals to seek a remedy when there is a breach; the liability of organisations for breaches of data protection law; the transfer of personal data outside European Union; and the powers of the Information Commissioner.
Data Protection expert Dr Chris Pounder of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the extent of the objections reflects official attitude towards data protection policy. "All UK Governments involved in implementing the Directive have had a policy of minimising the Data Protection Directive's effect," he said. "The number of problems raised by the Commission seem to indicate that the UK Government may have misjudged the situation and minimised the effect of too many obligations".
"The fact that the Commission has a problem with so many of the articles in the Directive is a surprise," he said. "I had expected just a handful of objections linked to the Court of Appeal decision in the Durant case."
That landmark ruling from 2003, in Michael Durant's dispute with the Financial Services Authority, narrowed the scope of what constituted personal data under the Data Protection Act.
Pounder continued: "Instead, there are unexpected issues, for example, in relation to transfers, fair processing notices, exemptions, powers of the Commissioner, penalties and remedies."
The Commission's investigations were not prompted by a complaint. They were initiated by the Commission itself, though they are thought to have been provoked by the Durant ruling.
A statement issued to OUT-LAW by the Ministry of Justice on Friday said: "The European Commission, as part of its review of the implementation of the 1995 Data Protection Directive by each member state, have raised a number of issues with the UK."
"We are in discussion with the Commission about these issues. We believe that the UK has properly implemented the Data Protection Directive via the Data Protection Act 1998 and other relevant provisions of UK law," it said.
The Commission sent the UK Government its first letter on the issue in 2004, setting out the problems with the Data Protection Act. Until now, those objections have remained secret. The letter threatened proceedings before the European Court of Justice if negotiations with the UK stalled.
Editor's note: This issue will be discussed at Pinsent Masons' Data protection update sessions, Autumn 2007
Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.