Data Protection Bill [Lords]

Debate between Ed Davey and Margot James

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 9th May 2018 Commons Chamber

[Margot James]

I will write to the hon. Lady and I hope to give her reassurance. This new higher bar concerns NHS data and that would obviously not catch within it errors on a tax return.

As now, the memorandum of understanding would also continue to operate when there are concerns about the welfare and safety of a missing individual—for example, vulnerable children and adults. That has always been the case. Personal information will only be disclosed to the Home Office or agencies under the purview of the Home Office. This is a significant restriction on the Home Office’s ability to use data held by the NHS. It is estimated that the change will exclude over 90% of the requests that have been satisfied to date.

[Sir Edward Davey (Kingston and Surbiton) (LD)]

The Minister talks about a memorandum of understanding giving reassurance to the House. I refer her to part 2 of schedule 2, which talks about exemptions from the general data protection regulation in respect of crime and taxation. Surely, the rights of individuals to have their data protected under that provision would address all these issues, and it would potentially supersede the memorandum of understanding.

[Margot James]

I will come on to the exemptions in terms of criminal activity and immigration in a wider context than NHS information in due course.

My right hon. Friend the Minister for Immigration is committed to sending a copy of an updated MOU to the Health and Social Care Committee shortly, but as I have indicated, the significant narrowing of the MOU will have immediate effect. This commitment is consistent with the intention underpinning new clause 12. I trust that on that basis, my hon. Friend the Member for Totnes and her colleagues will not press new clause 12. I am sure that if she has any questions, she will intervene on me, or that when she makes her remarks later, I might be invited to intervene on her. I thank my hon. Friend and all her Committee members for their work to establish higher principles in this area.

I turn to Opposition amendments 16 and 15 and Government amendments 141 and 142, on immigration. Amendment 15 would remove the provisions relating to effective immigration control in schedule 2. In responding to the amendment, I want to address some of the continued misunderstandings that have arisen around the purpose and scope of the provision, and I hope to persuade the House that this is a necessary and proportionate measure to protect the integrity of our immigration system. It has been suggested that the provisions have no basis in the GDPR, but article 23 expressly allows member states to restrict certain specified rights for the purpose of safeguarding

“other important objectives of general public interest of a…Member State”.

The maintenance of effective immigration control is one such objective.

[Sir Edward Davey]

Will the Minister confirm that article 23 of the GDPR does not specify immigration?

[Margot James]

It does not rule out immigration and it does allow the restriction of certain specified rights—not wholesale restrictions—for the purpose of safeguarding

“other important objectives of general public interest”.

The purpose is to provide a derogation for member states wide enough that they can pursue an overall Government policy in the general public interest. I would conclude that immigration is one such example. It has been suggested that the provisions represent a blanket carve-out of all a data subject’s rights. That is certainly not the case. I would like to reassure the right hon. Gentleman that we are being very selective about the rights that could be disapplied. The exemption will be applied only on a case-by-case basis and only where it is necessary and proportionate.

--- Later in debate ---

[Margot James]

Apparently not.

[Sir Edward Davey]

rose—

[Margot James]

I will give way for the last time to the right hon. Lady, if the right hon. Gentleman does not mind.

--- Later in debate ---

[Margot James]

Thank you, Madam Deputy Speaker. I might as well give way to the right hon. Member for Kingston and Surbiton (Sir Edward Davey) now.

[Sir Edward Davey]

I am grateful to the Minister. To help other Members consider amendment 15, let me point out that one of the data protection provisions that are being exempted for immigration purposes is the right to make subject access requests. It is critical to the rule of law for people and their representatives to know on the basis of what information the Home Office has made its decisions. The Bill provides no safeguards, no balance, and no restrictions to the use of that law by Home Office officials. As we heard from the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), those are simply not in the Bill. It is entirely wrong for the House to be asked to pass a Bill that does not contain real safeguards for the people involved, given what happened in the Windrush cases.

[Margot James]

I will continue to make some progress, as I feel that those points have already been made.

The application of the exemption does not set aside all data subjects’ rights, but only those expressly listed. A further limitation is that exemptions can be applied only where compliance with the relevant rights would be likely to prejudice the maintenance of effective immigration control.

[Sir Edward Davey]

What does that mean?

[Margot James]

It is an established term. It is used in the Immigration Act 2014 and the Freedom of Information Act 2000 uses a similar term, namely “operation of immigration controls”.