November 2021

New legal opinion analyses proposals for reform set out in: “Data: a new direction” and recommends changes to prevent unintentional breaches of the Equality Act 2010

The government is currently consulting on plans to reform existing data protection law. The proposals, set out in: “Data: A new direction” have profound implications for research, the governance of automated decision making and public trust in data processing. TLEF Director of Research states:

“TLEF's previous work has demonstrated that appropriate reforms to data protection law could help to ensure that the UK’s data protection framework reinforces and promotes the principle of non-discrimination under the Equality Act 2010. Such reforms would enhance public trust, prevent harm and ensure that new technologies are deployed lawfully and effectively. However, reform is not without risk- it is vital that new regulation is developed soundly in a manner that is consistent with established equalities and human rights frameworks.” Dr. Natalie Byrom, TLEF Director of Research

To support organisations and individuals submitting responses to the consultation, TLEF has instructed leading equality law experts Robin Allen QC and Dee Masters to analyse the impact of proposed reforms on discrimination under the Equality Act 2010. Their public joint opinion: “The impact of proposals within: “Data: A New Direction” on discrimination under the Equality Act 2010”, published today, raises concerns that proposals in the consultation document conflate: “outcome fairness” with “non-discrimination” in a manner that is: “simply wrong in law”. The opinion states:

“…urgent action is required to address this legal fallacy and to stop it becoming accepted. If not, both public and private organisations will be lulled into a false belief that they are acting lawfully when in fact they are breaching the Equality Act 2010. Money and time will be wasted as a result; many will be adversely affected. Sooner or later, this will come back to undermine whatever development has taken place, with untold legal and social consequences.” Robin Allen QC and Dee Masters

Allen and Masters identify six key refinements to the existing data protection linked to the government proposals. These include:

1. Expressly stating in any new data protection legislative framework that processing which leads to discrimination is unlawful;
2. Removing the erroneous conflation of “outcome fairness” with equality which is outlined within "Data: a new direction" (Chapter 1.5, para 69);
3. Ensuring that comprehensive statutory guidance is created which explains the ways in which discrimination through data processing can occur;
4. Making it plain that organisations can legitimately process data in order to check for discrimination, that they must do so and make the results public;
5. Ensuring that meaningful, personalised information is provided to individuals where their personal data is processed in order to make decisions about them; and
6. Providing the resources to ensure that the judiciary is ready and able to address discrimination complaints linked to discriminatory data processing.

The authors conclude:

“Discriminatory decision making isn’t just problematic for the individuals involved; it exposes organisations to legal risk. This is both a burden on business and a distraction from its development for the common good. Indeed, the helpful adoption of technology is inhibited if the public stops trusting organisations for fear of discrimination. So we are clear that the DCMS, through reform of the UK's data protection framework, has an opportunity to fix the problems that are preventing the principle of non-discrimination from being fully realised in the field of data processing.” Robin Allen QC and Dee Masters

The full opinion is available to download here. The consultation closes on the 19th November at 11.45pm. Further details and instructions on how to respond are available here.