Resolution DH (2000)106

concerning the Judgment of the European Court of Human Rights of 7 July 1989 in the case of Gaskin against the United Kingdom

(Adopted by the Committee of Ministers on 24 July 2000

at the 716th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Gaskin case delivered on 7 July 1989 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 10454/83) against the United Kingdom, lodged with the European Commission of Human Rights on 17 February 1983 under Article 25 of the Convention by Mr Graham Gaskin, a British national, and that the Commission declared admissible the complaints regarding the applicant’s continuing lack of access to his case-file held by a local social authority relating to his period in care by the Liverpool City Council following the death of his mother;

Recalling that the case was brought before the Court by the Government of the United Kingdom on 8 March 1988 and by the European Commission on Human Rights on 14 March 1988;

Whereas in its judgment of 7 July 1989 the Court:

- held, by eleven votes to six, that there had been a violation of Article 8 of the Convention;

- held, unanimously, that there had been no violation of Article 10 of the Convention;

- held, by nine votes to eight, that the Government of the respondent State was to pay to the applicant, for non-pecuniary damage, 5 000 pounds sterling and, for legal fees and expenses, 11 000 pounds sterling, less 8 295 French francs to be converted into pounds sterling at the rate applicable on the date of this judgment, plus value added tax on the balance;

- rejected the remainder of the claims for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Art i cle 54 of the Convention;

Having invited the Government of the respondent State to inform it of the measures which have been taken in consequence of the judgment of 7 July 1989, having regard to the United Kingdom’s obligation under Article 53 of the Convention to abide by it;

Having satisfied itself that on 18 September 1989 the Government of the respondent State paid the applicant the sums provided for in the judgment of 7 July 1989;

Whereas, during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures taken in consequence of the judgment; this information appears in the appendix to this resolution;

Declares, having taken note of the measures taken by the Government of the United Kingdom, that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to the Resolution DH (2000) 106

Information provided by the Government of the United Kingdom

during the examination of the Gaskin case

by the Committee of Ministers

While the present case was pending before the organs of the European Convention on Human Rights two new enactments improved the right of access to records held by the social services: the Access to Personal Files Act 1987 and the Access to Personal Files (Social Services) Regulations 1989 (see e.g. the judgment of the European Court of Human Rights in the Gaskin case, paragraph 29). The new provisions reinforced the right of access to records held by the social authorities in particular, and ensured better administrative review of refusals to give out information. They did not, however, have any retroactive effect and did not, as required under the Court’s judgment, provide for a fully independent review of a refusal to disclose information. The legislative work required to ensure full compliance with the Gaskin judgment became more complex than expected, in particular because of the new political ambition to enact legislation providing for a general right of access by the public to documents held by the authorities and because of the issue of the European Communities’ Directive 95/46/EC in October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. In the meantime, in order to avoid any unclarities in the application of the existing regulations, the Minister of Social Affairs sent out a set of guidance notes in 1996.

The Data Protection Bill, which addressed the question of access to information directly relating to the person seeking access, was sent to Parliament in January 1998. The ensuing Data Protection Act was adopted on 16 July 1998.

The new Act applies to data, including both computerised data and manual records, containing information relating to the person seeking access and also binds the Crown (Section 63). It has entered into force in different steps and the whole Act eventually came in force on 1 March 2000. The Act notably attaches conditions to data processing, including obtaining and recording data, regulates individuals’ rights to be informed about processing and to obtain copies of data and provides for administrative and judicial remedies.

Of particular relevance for the Gaskin case is Section 7 of the Act, which defines the right of access to personal data, and Section 68, which indicates that accessible records include health records, educational records and other public records which are clarified in Schedule 12, paragraphs 1, 2 and 3.

Section 7, subsection (4) provides the general principle that consent to disclosure shall be given unless any other individual can be identified from the information disclosed, in which case the other person must give his or her consent, or otherwise where it is reasonable, in the light of all the circumstances, to give out the information without the consent of the other individual. The right of access is, however, also subject to a number of other limitations found notably in part IV of the Act. Disclosure may thus, for example, be refused in the interest of national security (Section 28), if it would prejudice the prevention or detection of crime, the apprehension or prosecution of offenders or the assessment or collection of any tax or duty or of any imposition of a similar nature (Section 29), if it would prejudice the proper discharge of certain functions such as protecting members of the public against financial losses due to dishonesty, malpractice or other seriously improper conduct or for securing the health, safety and welfare of persons at work (Section 31). The Secretary of State may provide for further limitations notably as regards information as to the physical and mental health or condition of the person seeking access (Section 30).

Section 7 (9) specifies that a court will have the power to order a data controller to comply with a request for access if it is satisfied that the latter failed to comply with the request in contravention of the relevant provisions of the Act. Under part V, the person concerned may also turn to the Data Protection Commissioner (an official appointed by Her Majesty), who may issue an enforcement notice ordering access to the data controller concerned (Section 40).

Schedule 8 contains certain transitional provisions. Whereas it is clear that new data, created after 24 October 1998, will be covered in full by the Act, old manual records will in principle be exempt from its application until 24 October 2001. There is, however, an exception notably for “Gaskin-type” manual records, i.e. records held by social services authorities: in paragraph 3 of the Schedule, and, as from 1 March 2000, individuals may seek access to such records and may have any refusal of access reviewed by a court.

The Government is of the opinion that the risk of new violations of the Convention similar to that found in the Gaskin case was clearly reduced as a result of the interim measures already taken when the case was pending before the Convention organs. The risk has disappeared altogether with the adoption of the new data Protection Act 1998 which goes considerably further than was required under the Gaskin judgment, as it provides for a general principle of public access to personal data (including documents and manual records), whether held by private enterprises/persons or authorities), and ensures that there exists efficient review, including review by a court, of any refusal to give out such personal data. The new legislation furthermore applies retroactively so as to enable access also to personal data compiled before the entry into force of the new Act.

The Government considers that, in view of the measures taken, and the particular circumstances surrounding the enactment of the new legislation, it has conformed with the requirements of Article 53 of the Convention.