International Day against Homophobia, Transphobia and Biphobia

Stuart C McDonald Excerpts

Thursday 17th May 2018 Commons Chamber

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

It is a pleasure to follow so many fantastic speeches and, indeed, a privilege to speak in this debate on International Day against Homophobia, Transphobia and Biphobia. I thank and congratulate the hon. Member for Hove (Peter Kyle) on securing the debate, and thank the Backbench Business Committee for supporting it.

Hon. Members have already reflected on and spoken powerfully of the changes that they have seen over their lifetimes. It is horrifying to think that when I was born in 1978 consensual homosexual acts between adults were still three years away from being decriminalised in Scotland. It is a tragedy to think about how many lives were destroyed by those pernicious criminal laws.

After two steps forward, we took one step back, as decriminalisation was followed by the equally disgraceful piece of legislation that became known as section 28—legislation that undoubtedly prevented schools from being the inclusive and supportive environments that they should have been. Its repeal in 2000 was a gutsy move by the Labour and Liberal Democrat Scottish Executive of the time, against a background of a vicious campaign of misinformation and prejudice that barely left the front pages of the Scottish newspapers for month after month. Thankfully, enhancement and equalisation of civil rights in other fields followed, culminating in equal marriage measures in Holyrood and here in Westminster, after what I think could be described as a significantly more uplifting debate.

I want to finish my progress report by paying tribute to my former colleague and neighbouring MP for East Dunbartonshire, John Nicolson, who introduced his “Turing Bill”—the Sexual Offences (Pardons Etc.) Bill—as a private Member’s Bill in the last Parliament. Although it sadly did not make it on to the statute book, it clearly provoked Governments here and in Scotland into passing their own legislation to pardon those convicted of breaching the pernicious old laws of the past and into righting some of the most terrible injustices.

It is fantastic that Scotland and the UK are regularly listed near the top of the rankings of the best European country for LGBTI equality. It is appropriate that we pay tribute to the activists and campaigners—there are too many to name—who have put themselves on the line in securing the rights and freedoms that we enjoy today. But as other hon. Members have said, there is no room for complacency, and nobody is saying that the job is finished. Some have highlighted the progress that we still need to make on transgender rights. I welcome the work undertaken by the Scottish Government to review and improve the Gender Recognition Act. I very much want to see the same thing happen here, and quickly.

It is fair to say that the effect of section 28 still seems to linger. Making schools a supportive environment for LGBT pupils is not just a matter of repealing that vicious legislation; it is also about positively ensuring that support and inclusive education are genuinely available. I want to pay a huge tribute to two of my constituents, Jordan Daly and Liam Stevenson, for the outstanding work they have done through their Time for Inclusive Education—TIE—campaign, which I know many Members across the House are strong supporters of. I hope that their hard work will help to ensure that, in future, schools can be more fully supportive and inclusive of LGBT pupils in a way that they were prevented from being in the past.

Another sphere that has not always provided a welcoming place for LGBT people is the world of sport. My impression is that sport in Scotland, and particularly football, has previously lagged somewhat behind the efforts to tackle homophobia in England. There has thankfully been some recent positive progress, with the development of the Scottish LGBT sports charter and the equality standard. It was encouraging to see some of the cautiously optimistic submissions to the recent Digital, Culture, Media and Sport Committee inquiry on that subject.

In discussing sport, it would be remiss of me not to highlight the volunteers and clubs that have gone out of their way to promote sporting participation among the LGBT community. In the UK, for example, we have various leagues, including a nationwide Gay Football Supporters’ Network league, that provide a safe space for hundreds—in fact, probably thousands—of football enthusiasts who happen to be LGBT or I. It is something that has been hugely important for me, and I have enjoyed being part of that for the last eight or nine years through Edinburgh’s HotsScots football club. I very much look forward to joining them and thousands of other competitors this summer in the 10th Gay games in Paris, where we will compete against teams from around the globe.

There is much to celebrate across the UK, but there are also serious challenges. It is fair to say that the outlook for many members of our community around the world is often far bleaker. On the theme of sport, Russia will of course be hosting an even more significant sporting event this summer, yet, as the right hon. Member for Arundel and South Downs (Nick Herbert) pointed out, it is among countries that have an appalling recent record on LGBTI rights. The UK Government have a commendable record on making representations to other Governments on LGBTI rights and the repeal of discriminatory laws, but diplomacy, as we heard, is just one side of the coin. Hearts and minds need to be changed more generally, and that is an even bigger challenge.

If time permitted, I would highlight the fantastic work of Pride House International, which made a massive contribution to challenging homophobia and discrimination among Commonwealth countries by hosting an event at the 2014 Glasgow Commonwealth games. I understand that when in Russia it will be present at a World cup for the first time. Obviously, it will not have Russian Government support, so if there were any opportunity for UK Government support, FA support or FIFA support, that would be magnificent.

Windrush

Stuart C McDonald Excerpts

Wednesday 2nd May 2018 Commons Chamber

[Fiona Onasanya]

I advise the hon. Gentleman that the activist is not actually a Labour member, but I hear what he says. I disagree with any form of racism, especially racism pointed towards or coming from Members of this House, such as Conservative Members using the N word.

The Home Secretary must confirm that full compensation will be paid—compensation not limited to but including: loss of income, loss of benefits, legal fees, Home Office application fees, air fares, emotional distress and unlawful detention. Will the Home Secretary factor in such considerations as I heard when I went to a Committee room? I heard members of the Windrush generation talking about how being held in a detention centre for nine months left them unable to pay their mortgage and that as result their home was repossessed? When will things of that sort be talked about and explained to us in the context of compensation?

This crisis was foreseeable and foreseen when legislation was being introduced. We have heard from both sides of the House that warnings were given to Home Secretaries but that nothing was done, no action was taken. In respect of action being taken, I also heard from a member of the Windrush generation in that Committee room that they had a biometrics card due to expire in 2024. Why would a British citizen not be given a British passport? This is not about targets; it is about justice for the Windrush generation. Until we have answers to these questions, we will continue to seek transparency.

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

rose—

[Mr Speaker]

I wish a happy 40th birthday to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), but I am afraid he does not get any longer than four minutes.

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

Your good wishes, Mr Speaker, and those of other hon. Members have certainly made facing up to middle age that little bit easier today, so thank you very much indeed.

I start, as I did in Monday’s debate, by paying tribute to the Windrush generation. They battled against hostility when they arrived, and it is a tragedy that they have to battle against hostility 70 years later. We have heard lots of thoughtful speeches today, but I am troubled by the emerging argument that this horrendous episode can be seen as a one-off administrative mistake. I am concerned by the argument that the world can be neatly and easily divided into good “compliant migrants” on the one hand and wicked and nasty “illegal immigrants” on the other, and by the argument that the hostile environment will affect only the latter while everyone else carries on utterly unharmed. Those arguments are at best naive and at worst disingenuous, as the Windrush scandal has shown.

The key point that I want to make in the limited time available is that the disastrous impact of the hostile environment—which is, essentially, a half-baked, back-door ID card—does not start or end with Windrush. Others have fallen victim to it, and will continue to do so. Some are legally here and some are undocumented, but they are as far from the desperate stereotype of the wicked illegal immigrant as it is possible to get. Hostility is not the answer.

Among the victims of the hostile environment—as we heard earlier from my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford)—are the tens of thousands of undocumented children in this country. Many were born here, and many of those have led most of their lives here. They are entitled to British citizenship under the British Nationality Act 1981 if they register, but few are registering. Indeed, few will be aware that they need to register until they are refused jobs, education, social security, housing or NHS treatment in exactly the same way as the Windrush victims. Then, despite their not being allowed to work or claim benefits, the Home Office will refuse to register them unless they can scrape together more than £1,000, more than £600 of which is pure Home Office profit. Why should those children be subject to a hostile environment?

Also among those cast adrift in the hostile environment will almost certainly be tens if not hundreds of thousands of EU nationals who, for whatever reason, do not manage to secure settled status by whatever cut-off time the Home Office imposes.

There are further victims of that hostile environment. One is the Afghan interpreter who was in the news again last week. He worked with the British armed forces in Helmand province for two years, but his asylum claim has been turned down. Does he deserve to be in a hostile environment? Also forced to face that environment are the hundreds, perhaps thousands, of Eritreans who were wrongly refused asylum on the basis of the Home Office’s dodgy country guidance. Many of them are now street homeless and destitute.

As was pointed out earlier by the hon. Member for Ilford South (Mike Gapes), among the victims of the hostile environment are several thousands of students who were wrongly caught up in the English testing scandal. They were presumed guilty on the basis of a spreadsheet from the company that had messed up the testing in the first place, and were then rounded up and deported without even being allowed to see or hear the evidence against them, let alone challenge it in a tribunal in this country. Thousands of careers were ruined before they had even started. All those people might be caught up in the broad and pejorative term “illegal migrants”, but they deserve a humane rather than a hostile response.

Also caught up in the hostile environment are those who—just like the Windrush generation, and just like every Member in the House—are perfectly entitled to be here. Among them will be 9 million British citizens without passports, because 43% of landlords and landladies say that they are less likely to let to such citizens now that the hostile environment has made them petrified of getting “right to rent” checks wrong. That applies particularly to those who are foreign, look foreign, or have a foreign-sounding name.

The hostile environment has brought no gain, but so much pain. We must not pretend that this starts and stops with Windrush, because otherwise it will run and run.

Minors Entering the UK: 1948 to 1971

Stuart C McDonald Excerpts

Monday 30th April 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mr Robertson. I, too, thank the petitioner and the signatories for bringing the debate before the House today, the Petitions Committee for scheduling the debate, and the hon. Member for St Austell and Newquay (Steve Double) for ably introducing it. We have had lots of powerful and thoughtful speeches.

The arrival of 492 passengers onboard the Empire Windrush at Tilbury docks in June 1948 was a pivotal and iconic moment in British history. The pictures and TV footage from the time, which can still be seen on the internet, show people’s faces brimming with optimism. These people were legally full citizens of Britain for the first time, thanks to the British Nationality Act 1948, which was aimed at preserving a united Commonwealth.

Despite a labour shortage, which one Government survey estimated at between 600,000 and 1.3 million people, it is fair to say, as hon. Members have pointed out, that the arrival of the first of the Windrush generation was initially neither welcome nor encouraged. An emergency meeting of the Cabinet Economic Policy Committee was called to discuss the situation, and urgent reports sought the ringleaders of the so-called incursion. The Minister of Labour had to reassure MPs that

“no encouragement will be given to others to follow their example.”—[Official Report, 8 June 1948; Vol. 451, c. 1851.]

As many hon. Members—especially the right hon. Member for Tottenham (Mr Lammy)—have pointed out, despite that less than enthusiastic initial welcome, that generation went on to make a massive contribution to rebuilding the country after the war, enriching it both economically and culturally. If there is one tiny silver lining in this disastrous episode, it is that a light has been cast once again on their extraordinary role in our history. I join other hon. Members in paying tribute to them and thanking them for that.

Fast-forward seven decades, and that tiny silver lining will be of scant comfort to those who have been treated so appallingly by the Home Office. This appalling episode can and should be seen as a not just predictable but inevitable consequence of the UK Government’s migration policy. It is not simply a matter of an administrative cock-up. The truth is that the Home Office and the Prime Minister entirely neglected those Commonwealth citizens when they went about ramping up the hostile environment and demanding checks on status at every turn. It seems that little thought was given to the fact that it would often be close to impossible for many Windrush children and others to prove their legal situation. Over time, they were dismissed from jobs they had done for years, they struggled to access NHS treatment and services, and they even faced detention and removal, as we have heard from hon. Members today. Some who went abroad were not allowed to return.

The Home Office knew that this sort of scandal could happen. It is not just that MPs raised individual cases with it: non-governmental organisations, including the outstanding Joint Council for the Welfare of Immigrants, warned it, the high commissioners representing Caribbean countries raised concerns, and, later, its own equality impact assessment for the Immigration Act 2016 flagged up precisely what would happen. It is almost as if the implications for the Windrush generation were seen as little more than unfortunate—they did not require action, never mind the urgent action that was desperately needed.

Quite rightly, there is a widespread public outcry, as the hon. Member for West Ham (Lyn Brown) described. Parliament is rightly angry, and hon. Members have asked a number of important questions. Given that confidence in the Home Office has been utterly shattered, surely the Government must now provide legal aid for those who believe they may be required to contact the Home Office helpline. Otherwise, many will simply not do so.

Will the Minister discuss with the Ministry of Justice the absolute necessity of providing legal aid? Will she assure us that no one from the Windrush generation is in detention or being asked to report? As the hon. Member for Wolverhampton North East (Emma Reynolds) asked, will she make it absolutely clear that information from the hotline will not be passed on and used in enforcement action? How broad is the Home Office search for others who have been wrongly detained and removed or not allowed re-entry? What standard of proof does the Home Office require for citizenship or settled status here? What rights will there be to challenge negative Home Office decisions, and what will the compensation scheme look like? Can we have an absolute assurance that Home Office staff are not under pressure to remove or deport individuals, and that there is not a target that incentivises them to ignore or not explore the possible right to be in this country? All those questions require an answer.

A number of hon. Members have rightly said that we have to see this scandal in a broader context, because it is just the tip of the iceberg. The Windrush children are just one of several groups of utterly innocent people who have been treated almost as if they are expendable, while the Prime Minister relentlessly pursues her now widely ridiculed and utterly bogus net migration target. Her policies mean that tens of thousands of children across the UK have been separated from a parent living abroad. Even more couples are kept apart by some of the most draconian, restrictive family migration rules in the world.

The checks that the Prime Minister imposed on landlords in England have pushed landlords and landladies into the role of immigration officers, with the result that the fear of getting it wrong has driven discrimination against prospective tenants who look foreign or have a foreign-sounding name. Despite the fact that the Home Office has been regularly criticised for poor decision making, the Prime Minister has removed in-country rights of appeal, which means that folk have to leave their jobs and families for months on end—sometimes longer—to try somehow to overturn those decisions from abroad. Thousands of innocent students have been arrested and deported, without even getting to see the evidence that the Home Office used to decide their guilt, never mind having the chance to challenge it in a tribunal. At the same time, the Home Office has commissioned a review of the complexity of its immigration rules, yet it insists that they are not complex enough to justify legal aid in England and Wales. Fees for citizenship and passport applications have soared. The list of injustices goes on and on.

Two weeks ago, the then Home Secretary said she was concerned that the Home Office has become too concerned with policy and strategy and sometimes loses sight of the individual. She is right, but that is the fault of Ministers, including the Prime Minister, who have created policies and strategies that forget the individuals and families whose lives are being destroyed. It is the “computer says no” approach, as the hon. Member for North Dorset (Simon Hoare) aptly described it.

All the while, there is not a shred of evidence that any of this has achieved anything other than division and messed-up lives. Since the Immigration Act 2014 came into force, voluntary returns have actually gone down. Evidence that the Home Affairs Committee received suggests that the hostile environment sometimes actually makes it harder, rather than easier, to enforce immigration rules, because it drives folk into the black private rented market and the black employment market.

There has been some talk today about illegal migrants, as if they are one body of very wicked and evil people whose removal we should celebrate, but they include husbands and wives unable to secure status because of the very strict immigration rules that I described. We heard today that the Home Office is trying to remove somebody who served in Afghanistan—an Afghan national who worked alongside our forces in that country. He is an illegal migrant, too. There are lots of people who came here as children who did not understand that they needed to regularise their status here, and could not even afford to do so. I will come back to that point in a moment.

Before we can go around talking about a hostile environment, we need a system that gets decisions right, that commands public confidence, that has appropriate oversight and systems of appeal, and that has a clear and simple way to determine who is here lawfully and who is not. None of that remotely exists at the moment, so the hostile environment must be reined in urgently. It is essential that MPs from across the House start standing up to the hostile environment and finally put the notorious net migration target out of its miserable existence.

The hon. Member for Worthing West (Sir Peter Bottomley) rightly asked what can be done. An early test for Parliament will be the Data Protection Bill and the Home Office’s attempt to help itself to a massive immigration exemption. There is absolutely no doubt that stripping people of their right to know what data the Home Office has about them, and to challenge inaccuracies, will create further burning injustices. As the hon. Member for Wolverhampton North East pointed out, we need to prevent a repeat of the Windrush fiasco.

What work has been done to identify other groups—Commonwealth citizens or otherwise—who may be at risk? Let me suggest two things the Government can do. First, tens of thousands of children who were either born in the UK or have lived most of their lives here are undocumented. They are entitled by law to British citizenship if they register, but if they cannot register and become citizens, they face exactly the same issues as the Windrush generation. I cannot see how the Home Office can justify charging more than £1,000 for the privilege of registration. Those children are entitled to British citizenship, and they should not be charged to exercise their rights in this country, any more than the Windrush generation should. That must be put right immediately.

Most obviously and urgently, as my hon. Friend the Member for Edinburgh North and Leith (Deidre Brock) said, we must look after the 3 million and more EU nationals in the UK. The Government must urgently update us about their progress in establishing a system for seeking settled status. Regardless of how successful that system eventually proves to be, it is very hard to see how, at the end of the grace period, we can avoid there being tens of thousands—probably hundreds of thousands —of people who have not successfully navigated the system to secure a document proving their status. If that happens, it will be Windrush on an even more desperate scale.

Those are the immediate priorities. If Parliament is seriously angry about the hostile environment, it will get down to the business of a root-and-branch review of the Immigration Act 2014 and the Immigration Act 2016. We must indeed start putting in place a system that properly respects people, their human rights and the rule of law. The one we have now too often fails to do so. Windrush is an awful and extreme example, but it is far from the only one.

Oral Answers to Questions

Stuart C McDonald Excerpts

Monday 16th April 2018 Commons Chamber

[Amber Rudd]

I thank my hon. Friend for his question. We will, of course, be bringing forward a White Paper later this year and an immigration Bill as soon as possible after that.

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

When will the Home Office fix the disastrous mess that is being caused by the tier 2 work visa cap being exceeded for four months on the trot? Is it not time to scrap the cap?

[Amber Rudd]

The hon. Gentleman will know that we keep the tier 2 visa route constantly under review. We are looking very carefully at the issue that he raises.

Windrush Children (Immigration Status)

Stuart C McDonald Excerpts

Monday 16th April 2018 Commons Chamber

[Mr Speaker]

Order. I understand the sense of anticipation in the Chamber about subsequent business, but I gently point out that we are discussing the rights and the futures of residents of this country. This is an extremely serious matter and the issue, and the people speaking about it, should be treated with respect. It really should not be necessary for me to say that again.

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

Is not the key point in all this that the pernicious and “hostile environment” has an impact on everybody, whether they are here legally or otherwise? People can hardly get out of bed these days without somebody asking to see their passport. Is it not time to scrap the “hostile environment”?

Data Protection Bill [ Lords ] (Fifth sitting)

Stuart C McDonald Excerpts

Tuesday 20th March 2018 Public Bill Committees

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

I agree that these amendments ask a legitimate and important question about the level of safeguards on international data sharing by UK intelligence agencies. As it stands, clause 109 contains two fairly otiose sub-clauses to do with the sharing of personal data abroad by our intelligence agencies. In contrast, there is a whole chapter and a full seven clauses putting in place safeguards in relation to transfer to third countries by law enforcement agencies. These amendments borrow some of the safeguards placed on law enforcement agencies and there seems to be no good reason why that is not appropriate. I take the point that it does not necessarily follow that what is good for law enforcement agencies is definitely good for intelligence services. However, it is for the Government to tell us why those safeguards are not appropriate. If there are different ways for us to go about this, I am all ears, like the right hon. Gentleman. The right hon. Gentleman quite rightly raised the example of drones and US attacks based on information shared by personnel. At the moment, the lack of safeguards and of a very clear legal basis for the transfer of information can be lethal for billions and is dangerous for our personnel, as the Joint Committee on Human Rights has pointed out. We support the thrust of these amendments.

[Darren Jones (Bristol North West) (Lab)]

I declare my interests as set out in the Register of Members’ Interests.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Stuart C. McDonald]

Clause 113 is one of the broad Henry VIII powers that we are consistently opposing and voting against and will continue to oppose and vote against. In chapter 6 of part 4 of the Bill are set out various exemptions that would disapply a number of aspects of data protection if that were required for national security. In schedule 11 are set out further exemptions, including for prevention and detection of crime, parliamentary privilege, legal professional privilege and so on. Huge swathes of data protection principles and subjects’ rights disappear in those circumstances.

We have already had a number of good debates on whether we have struck the right balance between the rights of data subjects and the national interest, national security interests and so on. In our view, it rather undermines our role in scrutinising Government legislation and finding the right balance if we then hand over what is pretty much a carte blanche to change the balance that we have decided on, with the minimum of scrutiny, through broad Henry VIII powers. We therefore continue to oppose broad Henry VIII powers in the Bill and encourage hon. Members to support taking this clause out of the Bill.

[Victoria Atkins]

I thank the hon. Gentleman for raising this point. Clause 113 is analogous to clause 16, which we have already debated, and provides for the Secretary of State, by regulations subject to the affirmative procedure, to add further exemptions from the provisions of part 4 or to omit exemptions added by regulations. This clause reflects amendments made in the House of Lords in response to the Delegated Powers and Regulatory Reform Committee’s concerns that the powers in the Bill as introduced, which provided for adding, varying or omitting further exemptions in relation to schedule 11, were inadequately justified and too widely drawn. However, maintaining the power to add further exemptions, or to omit exemptions that have been added, provides the flexibility required, if necessary, to extend exemptions in the light of changing public policy requirements.

Data Protection Bill [Lords] (Fourth sitting)

Stuart C McDonald Excerpts

Thursday 15th March 2018 Public Bill Committees

[Liam Byrne]

I rise briefly to support my hon. Friend’s excellent speech. The ambition of Opposition Members on the Committee is to ensure that the Government have in place a strong and stable framework for data protection over the coming years. Each of us, at different times in our constituencies, have had the frustration of working with either local police or their partners and bumping into bits of regulation or various procedures that we think inhibit them from doing their job. We know that at the moment there is a rapid transformation of policing methods. We know that the police have been forced into that position, because of the pressure on their resources. We know that there are police forces around the world beginning to trial what is sometimes called predictive policing or predictive public services, whereby, through analysis of significant data patterns, they can proactively deploy police in a particular way and at a particular time. All these things have a good chance of making our country safer, bringing down the rate of crime and increasing the level of justice in our country.

The risk is that if the police lack a good, clear legal framework that is simple and easy to use, very often sensible police, and in particular nervous and cautious police and crime commissioners, will err on the side of caution and actually prohibit a particular kind of operational innovation, because they think the law is too muddy, complex and prone to a risk of challenge. My hon. Friend has given a number of really good examples. The automatic number plate recognition database is another good example of mass data collection and storage in a way that is not especially legal, and where we have waited an awfully long time for even something as simple as a code of practice that might actually put the process and the practice on a more sustainable footing. Unless the Government take on board my hon. Friend’s proposed amendments, we will be shackling the police, stopping them from embarking on many of the operational innovations that they need to start getting into if they are to do their job in keeping us safe.

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

I will speak briefly in support of amendments 142 to 149, as well as new clauses 3 and 4. As it stands, clause 64 requires law enforcement data controllers to undertake a data protection impact assessment if

“a type of processing is likely to result in a high risk to the rights and freedoms of individuals”.

That assessment would look at the impact of the envisaged processing operations on the protection of personal data and at the degree of risk, measures to address those risks and possible safeguards. If the impact assessment showed a high risk, the controller would have to consult the commissioner under clause 65.

It is important to be clear that the assessment relates to a type of processing. Nobody is asking anyone to undertake an impact assessment every time the processing occurs. With that in mind, the lower threshold for undertaking an assessment suggested in the amendments seems appropriate. We should be guarding not just against probable or high risks, but against any real risk. The worry is that if we do not put these tests in place, new forms of processing are not going to be appropriately scrutinised. We have had the example of facial recognition technology, which is an appropriate one.

New clauses 3 and 4 do a similar job for the intelligence services in part 4, so they also have our support.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Yarl’s Wood Detention Centre

Stuart C McDonald Excerpts

Tuesday 6th March 2018 Commons Chamber

[Caroline Nokes]

My right hon. Friend will be aware that there is an extensive judicial process, whereby individuals seeking to stay in this country may apply to the first tier and, indeed, the upper tier tribunal at any stage in the process that they may apply for judicial review. We are determined to make the immigration system as fair as we possibly can, but also to uphold our rules.

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

The large-scale, routine detention of thousands of human beings in private prisons for an indeterminate period simply at the discretion of immigration officers is, frankly, a stain on our democracy and an affront to the rule of law. This most recent horrible episode in a detention facility is far from the first, as hon. Members know, and it will not be the last unless there is radical change. Why does the UK detain more than other European countries? Why can every other EU country manage with a time limit on immigration detention, but not the UK? Why do the Government continue to detain vulnerable people, including victims of torture, to the serious detriment of their health and wellbeing? It is very welcome that the shadow Home Secretary has brought this issue to the House, but will the Government have the courage to allow this House a binding vote and the chance to make it clear that it is time for radical reform of the UK immigration detention regime and that it is time for a limit?

[Caroline Nokes]

Immigration officials always consider individuals in detention on a case-by-case basis and put their welfare absolutely at the forefront. Some 95% of people with no right to be in this country are managed within the community. Only 5% will be within the immigration removal centres at any one time. They are only there when there is a realistic chance of removal, and we always seek to ensure that they are removed as soon as possible.

Oral Answers to Questions

Stuart C McDonald Excerpts

Monday 26th February 2018 Commons Chamber

[Caroline Nokes]

I thank the right hon. Gentleman for his question. He will have heard me say earlier that we will come forward with an immigration Bill in due course. He will also have heard me undertake to ensure that the House is updated on our EU exit policies in regular time, and that will of course happen.

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

I start by associating my party with the Home Secretary’s remarks about the tragedy in Leicester. Our thoughts and prayers are very much with the families.

The Minister suggests that the tier 2 cap situation is under review. With respect, that is not good enough. Failed applicants in the past three months may have no option but to apply again in the months ahead, making it ever more competitive for tier 2 certificates of sponsorship, which will make the problem much worse. Surely, if there is some sort of review, or if we have to wait for the Migration Advisory Committee, it makes sense to lift the cap in the meantime.

[Caroline Nokes]

We are very clear that businesses should look first to employ people from within the UK, and we remain committed to reducing migration to sustainable levels. Interestingly, businesses have told us that our system compares well with our global competitors and that businesses like its speed and certainty.

[Stuart C. McDonald]

The system works well for some businesses, but not for all. Breaching the tier 2 cap essentially meant that, to qualify for a certificate of sponsorship in December 2017, a job was required to offer a salary of £55,000 or above. That might be common enough for multinational companies in London, but it is much rarer elsewhere.

Given the Government say that they want a system that works for the whole United Kingdom, will the Minister make available information on the geographic spread of jobs that qualified for certificates of sponsorship over the past three months when the cap was breached?

[Caroline Nokes]

I reassure the hon. Gentleman that, of course, we keep a separate shortage occupation list for Scotland, if that is what he is referring to, but that broadly reflects the shortage occupations across the whole UK. We look carefully at this issue, as he might expect, but it is important that he reflects on the fact that we are determined to have an immigration system in the UK that works for the whole country.