Data Protection Bill [ Lords ] (Fifth sitting)

Debate between Stuart C McDonald and Darren Jones

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.

Data Protection Bill [ Lords ] (Second sitting)

Debate between Stuart C McDonald and Darren Jones

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.