Data Protection Bill [HL]

Baroness Jones of Moulsecoomb Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 13th November 2017 Lords Chamber

[Baroness Hamwee]

My Lords, the Committee may realise that there are sometimes occasions when none of us quite prepare for amendments and others where more than one of us does, but, as my noble friend knows, I rarely pass over an opportunity to say how offensive the phrase “hostile environment” is. Data protection should be a force for good in dealing with the way our society is going.

My noble friend has reminded the Committee of the provisions of paragraph 4. Over the last few years the state has extended the mechanisms for immigration control very significantly to letting of property, employment, bank accounts, driving and so on. We may be told that the various departments have memoranda of understanding between themselves with the Home Office to deal with all this, but that is an inadequate way of dealing with them. I do not think I will be the only one in the Chamber to think that. Home Office errors are reported embarrassingly frequently. The exemption covers so many rights: rights held by data subjects to access rectification and erasure, and the right to know who is processing data and why, including when data is obtained from a third party.

Liberty, with its usual energy, has provided us with 13 pages of briefing on this amendment. I do not propose to read them all to the Committee. No doubt the Government have read them and are prepared to respond, but I reserve the right to do so on Report if necessary. It reminds us of the work, if we needed reminding, of Lord Avebury, who said that the equivalent, very similar provision with which he was dealing was,

“in danger of being oppressive, deeply worrying to the immigrant community living among us, and one which is in grave danger of infringing the provisions”—[Official Report, 21/7/1983; cols. 1274-75]—

of the European Convention on Human Rights. The Minister will be relieved that I have not yet succeeded in emulating my late, much-missed noble friend to the extent I would like—I never will, but I will continue to try. His words are even more pertinent now, extending beyond the immigrant community to families and employers, to give two examples.

Like my noble friend, I would be interested to know examples and justifications for how the exemption might be applied. Presumably it would facilitate sharing between public services used by an individual, government departments and the Home Office to check the individual’s entitlement. The Government have said that they want to make the immigration system as “digital, flexible and frictionless” as possible. Initially that seems admirable, until one delves into issues such as this. Liberty asks whether the provision extends to activities such as running a night shelter or a food bank, which might well benefit undocumented migrants. Providing shelter and providing food could be construed as activities which undermine “effective immigration control”—to quote the Bill. Would a school have to provide a person’s address without their knowledge and without their even having committed an immigration offence? Underlying all this, what effect could such a provision have on migrants’ willingness to engage with public services?

Other noble Lords will probably have received a briefing from the Migrants’ Rights Network. It is about a legal challenge which it is starting against the NHS’s data sharing, but it is relevant here. The director of Migrants’ Rights Network said:

“We are gravely concerned that immigration enforcement is creeping into our public services, especially the NHS. And therefore, it is important to challenge this data-sharing agreement which violates patient confidentiality, and discriminates against those who are non-British”.


The lawyer acting for Migrants’ Rights Network says in the press release what I have heard from many workers in the field: that the data-sharing arrangement,

“is leaving migrants too scared to access healthcare services they are entitled to, for fear their address and other public information may be passed onto the Home Office. This could have a particularly negative effect on children, pregnant women, people with disabilities and victims of trafficking and abuse”.

It could have a severe effect on public health as well—we will debate all this when we deal with NHS charges in the regret Motion on Thursday.

The data subject will not know that data are transferred to the Home Office for immigration control purposes. The exemption seems to apply to immigrants and those connected with them, and those suspected of having an immigration offence in contemplation, thus turning them into an inferior class of citizen. It allows, or perhaps requires, data controllers, including the Home Office and its various arms, processing information for immigration purposes to ignore the principles on which the use of data is founded under the GDPR and the Bill and protection is applied.

I think that your Lordships might gather that we are very unhappy with this provision. It needs more justification than I think is capable of being provided, although we will of course wait and see.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the Minister, who is not in his place at the moment, said earlier that he could not understand what I meant by repressive measures, but paragraph 4 of the schedule is exactly what I meant and it is why this amendment would remove it.

The inclusion of an immigration control exemption in the Bill is a brazen violation of the data protection and privacy rights of migrants—both documented and undocumented—and of their families and communities in the name of immigration control. In effect, it removes all the Home Office’s data protection obligations as they relate to its activities to control immigration, as well as those of any other agency processing personal data for the same purpose or sharing data with another agency processing it for that purpose.

As the noble Baroness, Lady Hamwee, mentioned, it is not the first time that the Government have tried to limit data protection rights on immigration control grounds. In 1983, Clause 28 of the then Data Protection Bill had an identical aim, setting out broad exemptions to data subjects’ rights on grounds of crime, national security and immigration control. The Data Protection Committee, then chaired by Sir Norman Lindop, said that the clause would be,

“a palpable fraud upon the public if … allowed to become law”,

because it allowed data acquired for one purpose to be processed for another; and here is another power grab by this Government.

Clause 28 was rightly removed from the 1983 Bill, but today we see it resurrected with even more breadth and even less definition of its objectives. No attempt whatever has been made to define the new objective: nowhere in the Bill or its Explanatory Notes are the notions of effective immigration control or the activities requiring its maintenance defined. I simply do not understand the colossal cheek this Government have to put something such as this into a Bill and then present it in this House—I can understand it going through the other place but certainly not here. It is virtually impossible to come up with an exhaustive list of all the activities that might be included under this, or of individuals who might be affected. The potential list, as, again, the noble Baroness, Lady Hamwee, pointed out, could go far beyond the immigrants themselves and could apply to almost anybody, including some in your Lordships’ House—at least, I hope that some in your Lordships’ House might be involved in shelters and food banks.

I urge the Government to think again. This is probably one of the really nasty bits that the Government have an option to take out, so I hope that they will listen to us.

[Lord Lucas]

My Lords, I thoroughly support this amendment. I really hope that the Home Office has noticed that the Bill is starting in this House and that therefore this is a paragraph we can kill—and should, as we did in 1983. If the Home Office needs something more, it should make a case for it and we should listen, but to have a blanket provision such as this is very destructive of data collection as a whole. To take again the example of the NPD, the fact that data is passed from the NPD to the Home Office has made the bits of data that are being passed totally corrupt: one can no longer rely on that data because so many schools, not unnaturally, are unwilling to shop their parents and drop their parents into what can be extremely difficult circumstances. You destroy the purpose of the data that you pollute in this way; you make it unreliable. I suspect that you also undermine the research exemption: if data is actually being collected to give to the Home Office, how can you claim that it is for research? You start to undermine the Bill in all sorts of insidious ways by having such a broad and unjustified paragraph— unjustified in the sense that no one has made a justification for it. I really hope that the Home Office will think again.