Driving Forces of Administrative Data Sharing by Public Bodies: A UK-wide Socio-Legal Enquiry
by Stergios Aidinlis, PhD student, Centre for Health, Law and Emerging Technologies at the University of Oxford
The ADRN has been striving to address numerous challenges since its establishment. Central among them is the need to ensure legitimate data sharing for research through conforming with the applicable legal framework. Following the observation of the Law Commission that the current state of the law creates barriers, the British government introduced a series of provisions to promote public sector data sharing in the Digital Economy Act 2017. Specifically, for ADRN purposes, the establishment of a broad permissive gateway to share administrative data for research purposes under section 64 of the Act potentially allays existing worries about a lack of balance between sharing and protecting data in the law. To understand, however, whether and how legal powers to share data for research currently are and will in the future be exercised by the responsible data custodians, i.e. the public authorities who own and manage them, one should look at the social-organisational context in which they are (to be) applied. This is the aim of my research project within the ADS team at the Centre for Health, Law and Emerging Technologies (HeLEX) at the University of Oxford.
Social-organisational context becomes extremely salient mainly because administrative data sharing for research is exclusively reliant on discretionary legal powers. There are various sources of such powers; they mainly stem from so-called statutory 'gateways', i.e. provisions of statutory legislation enabling public bodies to share data. Apart from an expressly authorised by statute disclosure, public bodies may arguably rely on an implied power or a power to share data at common law. What is common in all cases is that public bodies are never under a duty to share data for research, but may do so at their discretion. While some significant scope for settling the standards under which a power is to be exercised is conferred to the decision-maker, it is misleading to conflate discretion with arbitrariness or abuse of power. Socio-legal scholars, with Dennis Galligan and Keith Hawkins being prominent examples, have convincingly argued that discretionary powers in law are more structured than they seem at face value. Patterns of discretionary behaviour are effectively shaped by forces stemming both from the legal system and its social environment.
Aiming to understand how such driving forces operate, my project conceptualises them as constituent elements of a broader culture shared by specific groups of individuals that are empowered to share data. The concept of legal culture has been used in socio-legal scholarship precisely as a crucial intervening variable between raw social forces and the legal system. Through a multi-case study methodology involving numerous data custodians across the four UK jurisdictions, I purport to identify similarities and differences in ideas, attitudes, expectations and opinions of data custodians in respect of their discretionary powers. In doing so, I am enquiring into how the formal legal framework, mainly administrative, human rights and data protection law, is interpreted by custodians. Do they see the law as creating a common-sense framework in which they are encouraged to exercise their discretion or as drawing clear and strict lines within which they should avoid being creative and experimental? Other considerations emanate from organisational dynamics and broader attitudes. How salient are such elements as 'trust', 'incentives' and 'transparency' in steering custodian discretion? The project adopts an iterative approach, proceeding from examining the salience of such candidate driving forces and aiming to refine them in accordance with the analysis of its empirical data.
To collect data for this purpose, I am conducting qualitative semi-structured interviews with individuals working for public bodies that have been sharing administrative data for research or for bodies that have closely cooperated with custodians. In this first year of research, I have confined my enquiry to English case studies; in the years to come, I aim to further examine how data custodians in England exercise their discretion, comparing them with custodians in Scotland, Wales and Northern Ireland.
It is hoped that the sustained efforts of the Network and recent legal reforms will be integral to alleviating key barriers in administrative data sharing for research in the UK. This project proposes that future efforts should be informed by a systematic and deep knowledge of how the actual decision-makers operate and exercise their powers to share data in practice.
Written by a member of the Administrative Data Service and published on the ADRN Blog under Creative Commons license CC BY-NC-SA 4.0.
Published 03 July 2017