Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2024
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Lord Sharpe of Epsom
That the Grand Committee do consider the Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2024.
Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, this instrument, which was laid before the House on 31 January 2024, would amend paragraph 4 of Schedule 2 to the Data Protection Act 2018, more commonly known as the immigration exemption. The Government are amending these provisions following the Court of Appeal judgment on 11 December 2023, which found the immigration exemption incompatible with provisions in the UK GDPR. The court suspended the effect of the judgment until 11 March 2024 to allow the Government time to make the necessary amendments.
I will briefly outline what the immigration exemption does and the changes being made by these regulations. Parliament included the immigration exemption in the Data Protection Act 2018. It provides a legal basis to derogate from certain data subject rights where their exercise is likely to prejudice effective immigration control. For example, a data subject has the right to request and receive details of what personal data is held about them and how it is being processed. Under the provisions of the immigration exemption, the Government may limit the information provided in response to that request if, for example, the provision of that information would tip off the data subject that they were about to be subject to immigration enforcement. The immigration exemption is therefore an important provision in the DPA 2018 that allows the Government to protect the functioning of the immigration system. This was noted specifically by the Court of Appeal in its judgment.
The Court of Appeal’s judgment noted two technical deficiencies in the current exemption. First, the safeguards to be applied to the immigration exemption needed to be in the legislation itself; this is being amended by the regulations’ new paragraph 4A, which inserts the safe- guards on the use of the immigration exemption previously contained in the immigration exemption policy document into the legislation.
The court also determined that the risks to rights and freedoms of individuals were not sufficiently set out in the legislation. This is being remedied by new paragraph 4A(3), which specifically sets out the rights and vulnerabilities that should be taken into account when exercising the exemption. By including these explicitly in the legislation, we are providing increased clarity on the safeguards that are already applied when exercising the provisions of the exemption.
The Government are also choosing explicitly to include provisions as to the balancing exercise that must be undertaken when determining whether the exercise of data rights is likely to prejudice effective immigration control and, if it is necessary and proportionate, to restrict such rights as a result. The draft regulations were subject to consultation with the parties to the judicial review proceedings as well as the Information Commissioner’s Office. The ICO issued a public response to the consultation confirming that it was content with the regulations.
The Government have acted to meet the requirements of the Court of Appeal’s judgment while continuing to ensure that there are necessary safeguards in the legislation to protect effective immigration control. I commend the regulations to the Committee.
Baroness Hamwee (LD)
My Lords, I thank the Minister for that explanation. I have to say that my recollection is that the issue is much wider than the exemption and ensuring that there is no tip-off to somebody who is about to be visited by immigration enforcement. Let me give an example that was borne out after the Act was passed: solicitors acting for data subjects were unable, as we had anticipated, to find out what the Home Office thought it knew—I put it that way deliberately —about their clients.
I have some general points to make; I will do so fairly quickly. It would be optimistic to think that the Home Office had taken from this saga that objections and criticisms—in the form of amendments, obviously—can be helpful because we could have avoided a lot of effort in rectification. My noble friend Lord Clement-Jones will go into some of the history; I must admit, I do not recall much detail except for being teased frequently by the noble Baroness, Lady Williams, when she was the Home Office Minister, because I brought up our objection to the immigration exemption so often.
I feel strongly that it should not have to be for non-governmental organisations that are no doubt strapped for cash to do so much in order to get things right. I appreciate that that is part of our democracy; I do not object at all to the fact that they can do so, of course, but they should not have to. An application, an appeal, another judicial review, another appeal—at what cost to those organisations and the taxpayer! I emphasise that there is an exclamation mark, not a question mark, at the end of that sentence.
This saga is one of those episodes that vindicates the role of the courts, often in language that I, for one, relish. We have spent a lot of time in the Chamber recently discussing the role of the courts in our constitution; to give one example of the language, I really liked the understated use of
“over-broad derogations from fundamental rights”.
As the Minister said, the litigants were consulted before the publication of the SI. The Secondary Legislation Scrutiny Committee reports that it made three points, of which one, on oversight, was rejected by the Home Office and one was regarded by the Home Office as not necessary. Can the Minister tell the Committee what these were and why they were not pursued?
On the detail of the instrument, I note that it will be a matter for the Secretary of State to balance the risks to the individual and the risks to the state. I happen to think that it is in the public interest to apply exemptions with a very light touch, but of course it is no secret that the Liberal Democrats have problems with the Home Office’s immigration policy, and I fear that the reputational ship is well on its way. Clearly, there is an imbalance of power. That is inevitable, but it is not easy for the individual data subject to exercise his rights, and we should be aware of that.
Can the Minister also tell us what the Home Office will do to ensure that there will be transparency of decisions so that it can appropriately be held to account? Mechanisms must be written into the procedures. New paragraph 4B of Schedule 2 provides for a record of decisions and reasons. How will that be published and what will happen to it?
Will the Minister also comment on the capacity of immigration enforcement—and whoever else needs to—to look at prospective decisions on a case-by-case basis for each disapplication? I recognise that that will not necessarily be a straightforward and easy exercise, but it certainly requires a great deal more than, “It’s okay; it’s immigration, so we can just rely on the exemption”. Case-by-case decision-making is very important.
Finally, I note that the Explanatory Memorandum tells us that there is no full impact assessment because the instrument
“does not substantively alter the safeguards and considerations for applying the Immigration Exemption”.
I have to say that I thought that was the point.
Lord Sharpe of Epsom (Con)
I thank all noble Lords for their contributions. I shall start with justification and the public interest, which is obviously at the core of this. Parliament included the immigration exemption as part of the Data Protection Act 2018, as has been noted, for the legitimate purpose of effective immigration control. The Court of Appeal declared in its judgment,
“that there can be no dispute that the Immigration Exemption has a legitimate aim and indeed seeks to advance important public interests.”
We agree with the court: the immigration exemption is vital to prevent the release of information which would otherwise prejudice effective immigration control. I particularly welcome its endorsement by the noble Lord, Lord Coaker.
I want to be clear with noble Lords what those important public interests are. Through targeted use of the immigration exemption, we are able to maintain our capability at the border to prevent criminals and those who seek to cause us harm threatening our country as well as to support other agencies and international partners. We are able to frustrate and prevent sham marriages and protect the integrity of ongoing immigration removal and enforcement action and forgery investigations. The immigration exemption is also used to protect people being forced into a marriage and to prevent individuals absconding when there is a planned immigration visit. The central aims are to protect our citizens, ensure the integrity of the border and prevent abuses of the immigration system.
The noble Lord, Lord Coaker, asked about the balancing test. I will come on to the use of the exemption in practice, but it is always clear that the balancing test has to be carried out, and will now be explicitly in the Act. In practice, I can reassure noble Lords that the exemption is employed at around 70% of subject access requests relating to immigration and the Border Force. The amount of data that is restricted by the use of the exemption is, in the vast majority of cases, very little. It is not simply the case that where one piece of information is found to be prejudicial to immigration control, the Home Office does not respond to a request. The piece of information may be redacted as a result, but otherwise a full response will be given. It must be both necessary and proportionate to use the exemption, and this must be balanced against the risk to an individual’s rights. These existing standards will now be set out explicitly in the legislation.
I acknowledge that there was a difference of opinion in the House over whether the previous regulations amending the immigration exemption in 2022 met the requirements of Article 23 of the UK GDPR. The courts have agreed with the Government on a wide range of issues in the hearing. They declared that in two areas in particular the amended exemption did not, and the Government respect that ruling. We are confident that these regulations meet the requirements of the judgment in full, and we are supported by the ICO in that opinion.
The noble Baroness, Lady Hamwee, asked whether we consulted the claimants. They were consulted as part of the development of the provisions, and they suggested some additions to the provisions. We accepted suggestions to provide detail on applicable storage periods in the Explanatory Memorandum. We did not accept a suggestion to alter the existing model of ICO oversight of the exemption. The existing model of ICO oversight of the Home Office is robust, and data subjects are able to challenge use of the exemption. I welcome the noble Lord, Lord Clement-Jones, acknowledging the ICO’s part in this.
We also rejected the suggestion to specify in the legislation the wording that must be provided to data subjects when informing them that the provisions of the exemption have been applied. The provisions of the exemption are already accessible to data subjects and adding that detail to primary legislation would be unhelpful.
As regards how the ICO assesses the Government’s use of the immigration exemption, it already assesses the Home Office as part of its statutory role as regulator. Those assessments are published as data protection audit reports, setting out the findings and any recommendations. Should a data subject disagree with the decision to apply the immigration exemption in their case, the usual redress mechanisms to contact the ICO are available.
The noble Lord, Lord Coaker, asked about the application of these rules to children. The immigration exemption applies to all immigration data, but there are special considerations in relation to minors, which are set out in the ICO’s guidance.
The subject of an impact assessment also came up, which relates to oversight and transparency more generally. It is important that these regulations retain the presumption that a data subject should be informed that the immigration exemption has been used—for example, to redact information provided to them in response to a subject access request. That allows the data subject to challenge that decision, should they believe that the application of the exemption is not justified. The ICO has appropriate powers to investigate whether the immigration exemption has been applied appropriately in a specific case. This is in addition to its overall assessment of the Home Office’s data protection practices, which include the use of the immigration exemption more broadly.
An impact assessment was carried out as part of the inclusion of the provision for the immigration exemption in the Data Protection Act 2018. A further supplementary impact assessment was conducted as part of the amendment to the exemption by the SI in 2022. This is noted in the Explanatory Memorandum. Given that there is no substantive change to the safeguards and scope of the exemption, we have not completed a new IA for this instrument.
Lord Clement-Jones (LD)
I am sorry; the Minister seems to be moving on from the impact issue. Clearly there was a period when the old regulation, which is now being superseded, was in operation and individuals were impacted. In a sense, an inappropriate exemption was used. What data does the Minister have about those individuals and the impact on them? What redress do they have? The Minister skated over the ICO’s redress mechanism. Is there no direct mechanism to the Home Office?
Lord Sharpe of Epsom (Con)
I did not skate over it at all; I referred to it explicitly and am happy to do so again, if it would help. I do not know if there is any specific redress to the Home Office. I would imagine not, given that it is explicit that data subjects should go via the ICO. If I am wrong on that, I will clarify.
I have no particular data on the subjects who may have been covered by this before the court’s decision, so I will have to find out, come back and write to the noble Lord if there is anything useful to add.
The Home Office already has relevant guidance and training in place for those exercising the immigration exemption provisions, but we are undertaking a review of those materials to ensure that they align with these regulations. That will be completed in time for the 11 March deadline to amend the current exemption. The instrument is making existing safeguards explicit in the legislation, which are already captured in the existing training and guidance, so we do not expect substantive changes to be needed.
The costs of the court case are not yet settled, but I am happy to commit to write once they have been.
There are a couple more bits to say. How often is the exemption used? The honest answer is not very often. I think I referred to this earlier, so it is probably redundant to say it again but, for the record, in the year ending October 2023, the immigration exemption was applied in around 70% of subject access requests received in relation to immigration citizenship and the Border Force. Of those, the vast majority had only a small amount of data redacted under the use of the exemption. So I suppose the answer to the noble Lord’s question is that it will have a very minimal impact on people, but I commit to clarify that.
Finally, the noble Lord, Lord Clement-Jones, asked about the relationship between the DPA and retained EU law. The official answer is that the focus of this SI is the immigration exemption and that discussions of the rules and the implications for the DPA 2018 are probably best debated as part of the DPDI Bill, which will, I believe, come to the House on 20 March. The unofficial answer is that I cannot comment on the noble Lord’s disposition because I did not really understand it and I do not have much knowledge of this subject. However, I note that we have left the EU: the people voted. Our rules can now be amended to our own circumstances, and of course, that applies across the entire legal suite. It was a pretty clear vote by the people of this country; I know that that does not suit the Liberal Democrats.
In closing, I hope that I have satisfactorily answered the points that were made and that noble Lords understand the necessity—
Baroness Hamwee (LD)
Before the Minister ends, can I go back to the record the Home Secretary is to keep under the schedule’s new paragraph 4B? It provides that, when he makes a decision, he must keep a record and the reasons for it. In essence, my question is about whether this will be public to any extent or whether transparency will be confined to the data subject. Also, I do not expect the Minister to go into any detail on this now or to comment, because he gave the figure, but 30% seems very high to me. The Immigration Law Practitioners’ Association has commented in the past—not the immediate past but, then again, I have not asked it—about the difficulty data subjects and, in particular, their legal representatives face because they simply do not know what the Home Office thinks it knows about their clients, which is an important starting point for any legal representation and any claim. I make this point because it really needs to be made.
Lord Sharpe of Epsom (Con)
I thank the noble Baroness for making her point. As regards what is required of the Home Secretary, for obvious reasons, it will not be public, although I agree that transparency is important when it comes to culture; we talked about that earlier in the context of the police, where similar rules apply. It will, however, be available to the ICO and subject to the usual transparency rules at the ICO’s request.
As I have already noted, we understand the necessity of these changes in order to ensure compliance with the Court of Appeal’s judgment and to increase clarity around the use of the immigration exemption. With that, I commend the draft regulations to the Committee.