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Influence • Data governance • Completed

The Impact of Proposals Within: “Data: A New Direction” on Discrimination Under the Equality Act 2010

Robin Allen KC, Dee Masters  |  8th November 2021

This legal opinion from leading equality law barristers Robin Allen QC and Dee Masters analyses government proposals for reforms to the UK data protection regime and recommends refinements to prevent discrimination. The authors raise concerns that government proposals in: “Data: A new direction” 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.

Further to this, Allen and Masters recommend six key refinements to the existing data protection framework linked to the government proposal. 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;
  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.

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