Data Protection Bill [ Lords ] (Second sitting)

Stuart C McDonald Excerpts

Tuesday 13th March 2018 Public Bill Committees

[Darren Jones]

I support the amendment tabled by my right hon. and hon. Friends, because there are some harsh realities about this exemption for effective immigration control, including the harsh reality that such an exemption right does not exist under the GDPR. Indeed, it is a new exemption compared with the law that exists today under the Data Protection Act 1998.

This broad, undefined exemption really must be restricted. I declare an interest. My wife is Australian and is here on a spousal visa. I therefore assume that, as a British citizen, I too could be subject to my rights being exempted for the effective control of immigration in order to understand what my wife is up to. I should declare for the record that her staying here in the UK is perfectly legitimate. This is a wide-ranging exemption that could apply to EU citizens, non-EU citizens and, as I say, British citizens who are connected with those who are subject to immigration controls.

This is not just an issue for the Home Office; there is data across various Departments that could be of use to the Home Office for the effective control of immigration. Indeed, we have been waiting for quite some time for the Government to publish the biometric strategy, setting out how they intend to use lots of biometric data across Government Departments. We have been waiting for a couple of years to see how the Government intend to do that.

My understanding is that if all the photographs held on our passports and driving licences were collated, in essence the Government would have the power to have a virtual ID card for the bulk of the adult population in this country. How on earth would that information be used for the effective control of immigration, which would potentially be applied to so many people here in the UK?

This exemption creates a derogation for many rights: the right to information, the right to access, the right to explanation, the right to erasure, the right to restriction of processing, the right to data portability, the right to object, and all the principles set out in article 5 of the GDPR. This is an enormous derogation from rights that our colleagues in Europe think are important. Again, this relates to the risk of failing to seek adequacy in our negotiations with the EU.

I seek not only to support the amendment but to ask the Minister to clarify something. If the Government do not support the amendment, how does the exemption fit within the language of article 23 of the GDPR, which states that it can only exist

“when such a restriction respects the essence of the fundamental rights”—

which we have already noticed today are being repealed by this Government—

“and freedoms and is a necessary and proportionate measure in a democratic society”?

My assertion is that this exemption goes too far and, therefore, that the amendment tabled by my right hon. and hon. Friends is perfectly sensible. I look forward to it receiving Government support.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

We have already heard three very good speeches in support of the amendment. I will not take too long to support pretty much everything that has been said so far. As a former troublesome immigration lawyer from back in the day—in fact, when the right hon. Member for Birmingham, Hodge Hill was busy making his reforms in the Department—I do not think that I could have lived it down if I had not said a few words in support of the amendment.

We must remember that the context for all this is that we have a Department—the Home Office—where, as the most recent statistics show, half of all immigration decisions that are challenged in a tribunal are overturned, which is a record high. The Home Affairs Committee has recently expressed grave concerns about the poor quality of decision making in far too many areas and the functioning of a hostile environment, for example in the area of bank checks, where there is something like a 10% error rate. We also live in a world where the creeping reach of the Home Office’s information tentacles is almost being seen to put off migrants from accessing necessary public services such as health, creating a public health danger.

To provide a massive and almost unlimited exemption from many of the key protections, as has been described, is not only unjustified but counterproductive, because rather than fixing the fundamental problems with Home Office decision making, it will make them worse by hiding them from view and from scrutiny. The Home Office, not for the first time, is being pretty greedy with the powers that it seeks, because even if we take out the exemption, as this amendment proposes, the Home Office will still have plenty of scope—perhaps too much scope—to do what it wants to do. Recent immigration Acts have created myriad criminal offences in the sphere of immigration law, so the Home Office can already rely on other exemptions within the Bill where necessary. What is absolutely lacking is any explanation of why the exemption is needed. Will the Minister explain what it is about current data protection laws that has unacceptably hindered Home Office operations? I have seen no evidence of that at all.

Another concern is that it is not just the Home Office that will benefit from this exemption but other organisations that are involved in immigration control, such as G4S in its operation of detention centres. There is no justification for that, but there are serious risks, harms and injustices that might be created by the proposed exemption.

As we have heard, subject access requests are regularly a crucial part of representing a migrant caught up in the immigration system. They can be used to establish statuses that have not been communicated or have been lost. They can be used to establish other crucial facts that have not been known to that individual or their representatives. They can, of course, be absolutely crucial in establishing that the Home Office has made errors, as all too many hon. Members will have experienced.

Members of the Committee have been provided with a host of examples by the Law Society, the Bar Council, the Immigration Law Practitioners’ Association and others. Those are real-life examples occurring day in, day out. Quite simply, the failure to allow those individuals access to data protection rights is not only a denial of those rights but a denial of access to justice altogether. This part of the Bill desperately needs reconsideration by the Government.

[Victoria Atkins]

I feel I should defend all the hardworking people both in the Home Office and Border Force who do their best to do their jobs, day in, day out, to ensure that we have an effective, fair and proportionate immigration system. They have come under a bit of an attack in this debate.

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[Victoria Atkins]

I am asked whether this will have an impact on someone’s application, either at appeal or reconsideration. Of course, information is obtained so that a person can be brought in. As I say, I will make it clear with case studies, so perhaps I can answer the right hon. Gentleman in more detail when I give such an example, but the purpose of this is generally to find a person. When the need, as set out under the exemption, no longer exists, the rights kick back in again. This relates only to the first two data protection principles under the GDPR. Again, I will go into more detail in a moment, but this is not the permanent exemption from rights as perhaps has been feared by some; it is simply to enable the process to work. Once a person has been brought into the immigration system, all the protections of the immigration system remain.

[Stuart C. McDonald]

The circumstances that the Minister describes for using the exemption are much narrower than the way the exemption is actually drawn. It seems to me that if that is the only way in which the Home Office wants to use the exemption, it could frame it in a much narrower way and possibly gain cross-party support.

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[Victoria Atkins]

I take the right hon. Gentleman’s point, particularly in relation to the overstayer, but as the purpose of processing personal data in many immigration areas is not generally the pursuit of criminal enforcement action, it is not clear that it would be appropriate in all cases to rely on crime-related exemptions, where the real prejudice lies in our ability to take administrative enforcement action. It may well be that in some cases a crime has been committed, but that will not always be the case.

Criminal sanctions are not always the correct and proportionate response to people who are in the UK without lawful authority. It is often better to use administrative means to remove such a person and prevent re-entry, rather than to deploy the fully panoply of the criminal justice system, which is designed to rehabilitate members of our communities. As the purpose of processing personal data in such cases is not generally the pursuit of a prosecution, it is not clear that we could, in all cases, rely on that exemption relating to crime.

[Stuart C. McDonald]

So far we have had some hypothetical examples about what might happen in the future, but given that we have a data protection regime in place already, it would be useful to know whether the Minister can give us examples of situations that have arisen in which the Home Office has been hindered by the current data protection regime. We have not heard anything like that so far.

[Victoria Atkins]

If I may, I will continue with my speech, because I have more information to give. Perhaps at the end I can deal with the hon. Gentleman’s point.

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[Stuart C. McDonald]

This morning we had a discussion about some of the Henry VIII clauses contained in the Bill. In essence, I said that when we are talking about personal information—particularly, in such circumstances, sensitive personal information—there should be a strong presumption against Henry VIII clauses, with the onus being on the Government to justify why delegated legislation is the appropriate way to make changes to our data protection rules.

Throughout the passage of the Bill we will continue to challenge the Government to justify delegated powers proposed under the Bill. This clause is the next example of that arising, so in our view it falls on the Minister to explain why she seeks delegated authority to exercise certain functions under the GDPR. I look forward to hearing what she has to say.

[Liam Byrne]

We agree that the clause offers Ministers a rather sweeping power to introduce new regulations. Over the course of what has been quite a short day in Committee we have heard many reasons to be alarmed about equipping Ministers with such sweeping powers. We proposed an amendment to remove the clause, which I think was not selected because we have this stand part debate. What we need to hear from the Minister are some pretty good arguments as to why Ministers should be given unfettered power to introduce such regulations without the effective scrutiny and oversight of right hon. and hon. Members in this House.