Draft Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2022

Mhairi Black Excerpts

Tuesday 18th January 2022 General Committees

[Mhairi Black (Paisley and Renfrewshire South) (SNP)]

As everyone knows, we are here because the Court of Appeal found that schedule 2 was inadequate and does not provide enough safeguards. I welcome the fact that the Government have not sought to appeal that decision in the hope that they can remedy the situation via legislation, but the proposed regulations do not address the unlawful conduct identified by the court. GDPR recital (41) makes clear

“a legislative measure should be clear and precise, and its applications must be foreseeable to persons subject to it”.

The draft statutory instrument does not meet that requirement. The basic problem is that the Court of Appeal decided that article 23(2) of UKGDPR required additional safeguards. The SI does not provide that, and it does nothing to provide any clarity about or expansion of the existing safeguards.

Lord Justice Warby expressed his provisional view that such safeguards should be “part and parcel” of the legislation, but instead the draft SI refers to guidance that is removed from the legislation. First, the SI cannot be considered “part and parcel”, and secondly, such guidance has no force in law and can be changed with ease and without scrutiny. Thirdly, the guidance has not been approved by Parliament. It does not have the status of a code of practice that is approved by Parliament. I raise those pertinent points because my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) raised those very issues with exemptions back in 2018. If we fast forward four years, here we are with the same problem.

Given the court case arose after it was revealed that the UK Government were using the exemption to deny 60% of applicants access to their data, is it any surprise that the legislation is still wholly inadequate? The very wording is inadequate because the exemption policy document can be changed by the Secretary of State if they consider it appropriate. With the added backdrop of the broken nature of the Government’s hostile immigration system, and the need for overall reform in multiple areas, and although I welcome the fact that the Government are at least trying to do something, ultimately the draft SI does not solve the problems identified. If anything, it actually gives the appearance that its purpose is to serve and protect the Home Office and to give the Secretary of State the power to do as they see fit. With that in mind, I have to say that the SNP will oppose the regulations.