Picture credit: Boris Zhitkov/Getty
Artillery Row

Jolyon’s little investigation

Questions have emerged about the founder of the Good Law Project’s approach to privacy

In April 2021 I wrote about a curious interview between Jolyon Maugham — then QC — and trans identifying male academic Grace Lavery. They were both dissatisfied with the recent decision of the Divisional Court in Bell v Tavistock, which had set out in some detail the Judges’ dismay that children were prescribed “puberty blockers” on the NHS to “medically transition”. The numbers of children presented for such treatment had surged since 2014, despite the lack of any compelling evidence to support its efficacy nor any attempts to assess the children’s capacity to consent or be curious as to why they wanted this. 

The decision in Bell was later overturned on appeal, as going beyond the appropriate parameters of a judicial review by descending into disputes about contested evidence. However, the Judges’ palpable unease at the prospect of children under 16 being processed onto a medical pathway which they could not possibly understand, can now be seen as vindicated by the recent decision of the NHS to stop prescribing puberty blockers to children outside of strictly regulated clinical trials. 

I commented at the time on Maugham’s curious reaction to those who gave evidence that he didn’t like, denouncing them as “weird and marginalised figures” who were “international traveling advocates” against “trans kids”. Oddly Maugham could not recall any of their names, but he revealed to Lavery that he had “commissioned” a “little bit of an investigation into all the witnesses”.

At the time, I let that comment slide, being more distracted by his attack on a serving Judge as “transphobe adjacent” for daring to be horrified that children as young as 10 were being presented to the Tavistock for chemical castration, without proper record keeping or assessment. 

However, a commentator on social media recently revisited this issue and raised some interesting questions about data and its regulation. 

And did those he investigated know what was happening?

Who did Maugham “commission” to carry out this investigation? And did those he investigated know what was happening? Private investigations into individuals are inevitably going to involve processing their personal and sensitive data. It seems unlikely Maugham could argue that this endeavour was purely for a “personal or household activity”, which would take him outside the scope of regulation — both he and his commissioned private investigator will be data controllers and therefore must comply with the General Data Protection Regulation of 2018. Article 6 of Chapter 3 reminds us about the requirements for data processing to be lawful. If the processing isn’t “necessary” then the data subject must give consent to the processing of his or her personal data. It is difficult to see how Maugham could argue it is “necessary” for him to probe into the backgrounds of those who gave evidence he didn’t like in judicial review proceedings. 

Did Maugham carry out a Data Protection Impact Assessment? This should be done for “high risk” data processing. European guidelines set out 9 criteria to identify what could be “high risk” — item 4 relates to sensitive data or data of a highly personal nature, such as information about an individual’s political opinions. Further guidance from the ICO suggests that as well as looking at the European criteria, you should carry out a DPIA when you collect personal data from a source other than the individual without providing them with a privacy notice — this is known as “invisible processing”. Even if there is no specific indication of likely high risk, it is good practice to do a DPIA for any major new project involving the use of personal data. 

The DPIA must:

  • describe the nature, scope, context and purposes of the processing;
  • assess necessity, proportionality and compliance measures;
  • identify and assess risks to individuals; and
  • identify any additional measures to mitigate those risks.

I am of course no data protection specialist and may have missed some subtle nuance here. But I wonder if Maugham even thought to ask any of those questions, or consider any of these issues. I suspect not. His self identified role of warrior who speaks truth to power was all the impetus or excuse he needed. 

In these curious times a recognition of simple biological truth, that sex is real and it matters, can see you reported to the police for “hate crimes”, discriminated against at work, subjected to unlawful disciplinary proceedings, shouted down in public, turned away from speaking engagements or threatened via social media. It is not difficult at all, to imagine just how risky it might be for individuals who are “investigated” and profiled without their knowledge by a high profile individual who has made no secret of his partisan and uncritical adoption of the assertion that they must be hateful bigots.

I think I should have been a lot more uneasy at the time to read about Maugham’s “commissioning” of an “investigation” into those whose evidence displeased him. Perhaps it is time for many to consider making Data Subject Access Requests of Maugham to see just how and why they feature on his ‘little list’.

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