Data Protection Bill [ Lords ] (Second sitting)

Victoria Atkins Excerpts

Tuesday 13th March 2018 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing Government amendments 77 to 83 and 87 to 91.

Amendment 76 agreed to.

Amendments made: 77, in schedule 1, page 124, line 24, leave out from “subject” to end of line 25.

In paragraph 8 of Schedule 1, sub-paragraph (3) contains an exception from the condition in sub-paragraph (1). This amendment would remove from the exception the requirement that the processing is carried out without the data subject’s consent.

Amendment 78, in schedule 1, page 124, line 36, at end insert—

“Racial and ethnic diversity at senior levels of organisations

8A (1) This condition is met if the processing—

(a) is of personal data revealing racial or ethnic origin,

(b) is carried out as part of a process of identifying suitable individuals to hold senior positions in a particular organisation, a type of organisation or organisations generally,

(c) is necessary for the purposes of promoting or maintaining diversity in the racial and ethnic origins of individuals who hold senior positions in the organisation or organisations, and

(d) can reasonably be carried out without the consent of the data subject,

subject to the exception in sub-paragraph (3).

(2) For the purposes of sub-paragraph (1)(d), processing can reasonably be carried out without the consent of the data subject only where—

(a) the controller cannot reasonably be expected to obtain the consent of the data subject, and

(b) the controller is not aware of the data subject withholding consent.

(3) Processing does not meet the condition in sub-paragraph (1) if it is likely to cause substantial damage or substantial distress to an individual.

(4) For the purposes of this paragraph, an individual holds a senior position in an organisation if the individual—

(a) holds a position listed in sub-paragraph (5), or

(b) does not hold such a position but is a senior manager of the organisation.

(5) Those positions are—

(a) a director, secretary or other similar officer of a body corporate;

(b) a member of a limited liability partnership;

(c) a partner in a partnership within the Partnership Act 1890, a limited partnership registered under the Limited Partnerships Act 1907 or an entity of a similar character formed under the law of a country or territory outside the United Kingdom.

(6) In this paragraph, “senior manager”, in relation to an organisation, means a person who plays a significant role in—

(a) the making of decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised, or

(b) the actual managing or organising of the whole or a substantial part of those activities.

(7) The reference in sub-paragraph (2)(b) to a data subject withholding consent does not include a data subject merely failing to respond to a request for consent.”.

Part 2 of Schedule 1 describes types of processing of special categories of personal data which meet the requirement in Article 9(2)(g) of the GDPR (processing necessary for reasons of substantial public interest) for a basis in UK law (see Clause 10(3)). This amendment adds to Part 2 of Schedule 1 certain processing of personal data for the purposes of promoting or maintaining diversity in the racial and ethnic origins of individuals who hold senior positions in organisations.

Amendment 79, in schedule 1, page 125, line 3, at end insert—

“( ) If the processing consists of the disclosure of personal data to a competent authority, or is carried out in preparation for such disclosure, the condition in sub-paragraph (1) is met even if, when the processing is carried out, the controller does not have an appropriate policy document in place (see paragraph 5 of this Schedule).”.

This amendment, and Amendment 80, provide that where processing falling within paragraph 9 of Part 2 of Schedule 1 (preventing or detecting unlawful acts) consists of, or is carried out in preparation for, the disclosure of personal data to a competent authority, the condition in that paragraph is met even if the controller does not have an appropriate policy document in place when the processing is carried out.

Amendment 80, in schedule 1, page 125, line 4, at end insert—

““competent authority” has the same meaning as in Part 3 of this Act (see section30).”.

See the explanatory statement for Amendment 79.

Amendment 81, in schedule 1, page 125, line 16, at end insert—

“Regulatory requirements relating to unlawful acts and dishonesty etc

10A (1) This condition is met if—

(a) the processing is necessary for the purposes of complying with, or assisting other persons to comply with, a regulatory requirement which involves a person taking steps to establish whether another person has—

(i) committed an unlawful act, or

(ii) been involved in dishonesty, malpractice or other seriously improper conduct,

(b) in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing, and

(c) the processing is necessary for reasons of substantial public interest.

(2) In this paragraph—

“act” includes a failure to act;

“regulatory requirement” means—

(a) a requirement imposed by legislation or by a person in exercise of a function conferred by legislation, or

(b) a requirement forming part of generally accepted principles of good practice relating to a type of body or an activity.”.

Part 2 of Schedule 1 describes types of processing of special categories of personal data which meet the requirement in Article 9(2)(g) of the GDPR (processing necessary for reasons of substantial public interest) for a basis in UK law (see Clause 10(3)). This amendment adds to Part 2 of Schedule 1 certain processing of personal data for the purposes of complying with, or assisting others to comply with, a regulatory requirement.

Amendment 82, in schedule 1, page 125, line 35, at end insert—

“( ) The condition in sub-paragraph (1) is met even if, when the processing is carried out, the controller does not have an appropriate policy document in place (see paragraph 5 of this Schedule).”.

This amendment provides that the condition in paragraph 11 of Part 2 of Schedule 1 (journalism etc in connection with unlawful acts and dishonesty etc) is met even if the controller does not have an appropriate policy document in place when the processing is carried out.

Amendment 83, in schedule 1, page 126, line 22, at end insert—

“Support for individuals with a particular disability or medical condition

13A (1) This condition is met if the processing—

(a) is carried out by a not-for-profit body which provides support to individuals with a particular disability or medical condition,

(b) is of a type of personal data falling within sub-paragraph (2) which relates to an individual falling within sub-paragraph (3),

(c) is necessary for the purposes of—

(i) raising awareness of the disability or medical condition, or

(ii) providing support to individuals falling within sub-paragraph (3) or enabling such individuals to provide support to each other,

(d) can reasonably be carried out without the consent of the data subject, and

(e) is necessary for reasons of substantial public interest.

(2) The following types of personal data fall within this sub-paragraph—

(a) personal data revealing racial or ethnic origin;

(b) genetic data or biometric data;

(c) data concerning health;

(d) personal data concerning an individual’s sex life or sexual orientation.

(3) An individual falls within this sub-paragraph if the individual is or has been a member of the body mentioned in sub-paragraph (1)(a) and—

(a) has the disability or condition mentioned there, has had that disability or condition or has a significant risk of developing that disability or condition, or

(b) is a relative or carer of an individual who satisfies paragraph (a) of this sub-paragraph.

(4) For the purposes of sub-paragraph (1)(d), processing can reasonably be carried out without the consent of the data subject only where—

(a) the controller cannot reasonably be expected to obtain the consent of the data subject, and

(b) the controller is not aware of the data subject withholding consent.

(5) In this paragraph—

“carer” means an individual who provides or intends to provide care for another individual other than—

(a) under or by virtue of a contract, or

(b) as voluntary work;

“disability” has the same meaning as in the Equality Act 2010 (see section 6 of, and Schedule 1 to, that Act).

(6) The reference in sub-paragraph (4)(b) to a data subject withholding consent does not include a data subject merely failing to respond to a request for consent.”.—(Margot James.)

Part 2 of Schedule 1 describes types of processing of special categories of personal data which meet the requirement in Article 9(2)(g) of the GDPR (processing necessary for reasons of substantial public interest) for a basis in UK law (see Clause 10(3)). This amendment adds to Part 2 of Schedule 1 certain processing of personal data by not-for-profit bodies involved in supporting individuals with a particular disability or medical condition.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

I beg to move amendment 84, in schedule 1, page 126, line 27, leave out “a reason” and insert “one of the reasons”.

This amendment amends paragraph 14(1)(b) of Schedule 1 for consistency with paragraphs 18(2) and 19(2) of that Schedule.

[The Chair]

With this it will be convenient to discuss Government amendments 85, 86, 116 and 117.

[Victoria Atkins]

It is a pleasure to serve under your chairmanship, Mr Hanson. I am pleased to introduce this group of amendments, which relate to data processing for safeguarding purposes. The amendments respond to an issue raised in an amendment tabled by Lord Stevenson on Report in the Lords in December. In response to that amendment, Lord Ashton made it clear that the Government are sympathetic to the points Lord Stevenson raised and undertook to consider the matter further. Amendments 85, 116 and 117 are the result of that consideration.

I am grateful to Lord Stevenson for raising this issue, and for his contribution to what is probably the most important new measure that we intend to introduce to the Data Protection Bill. The amendments will ensure that sensitive data can be processed without consent in certain circumstances for legitimate safeguarding activities that are in the substantial public interest. We have been working across government and with stakeholders in the voluntary and private sectors to ensure that the amendments are fit for purpose and cover the safeguarding activities expected of organisations responsible for children and vulnerable adults.

The Government recognise that statutory guidance and regulator expectations place moral, if not legal, obligations on certain organisations to ensure that measures are in place to safeguard children and vulnerable adults. Amendment 85 covers processing that is necessary for protecting children and vulnerable adults from neglect or physical or mental harm. This addresses the gap in relation to expectations on, for example, sports governing bodies.

The Government have produced cross-agency and cross-governmental guidance called “Working Together to Safeguard Children”, which rightly places the responsibility of safeguarding children on all relevant professionals who come into contact with children and families. For example, it creates an expectation that those volunteering at a local sports club will assess the needs of children and, importantly, will take action to protect them from abuse.

Amendment 85 permits the processing of sensitive personal data, which is necessary to safeguard children from physical, emotional, sexual and neglect-based abuse. Amendment 84 makes a consequential drafting change, while amendments 116 and 117 make an analogous change to the regimes in parts 3 and 4 of the Bill. This is aimed at putting beyond doubt a controller’s ability to safeguard children and people at risk.

I thought an example might help the Committee to understand why we place such an emphasis on the amendments. An example provided by a sports governing body is that a person may make an allegation or complaint about a volunteer that prompts an investigation. Such investigations can include witness statements, which reference sensitive personal data, including ethnicity, religious or philosophical beliefs, sexual orientation and health data.

In some instances, the incident may not reach a criminal standard. In those cases, the sports body may have no legal basis for keeping the data. Keeping a record allows sports bodies to monitor any escalation in conduct and to respond appropriately. Forcing an organisation to delete this data from its records could allow individuals that we would expect to be kept away from children to remain under the radar and potentially leave children at risk.

Amendment 86 deals with a related issue where processing health data is necessary to protect an individual’s economic wellbeing, where that individual has been identified as an individual at economic risk. UK banks have a number of regulatory obligations and expectations which are set out in the Financial Conduct Authority’s rules and guidance. In order to meet best practice standards in relation to safeguarding vulnerable customers, banks occasionally need to record health data without the consent of the data subject.

An example was given of a bank which was contacted by a family member who was alerting the bank to an elderly customer suffering from mental health problems who was drawing large sums of money each day from their bank account and giving it away to a young drug addict whom they had befriended. The bank blocked the account while the family sought power of attorney. Again, the amendment seeks to clarify the position and give legal certainty to banks and other organisations where that sort of scenario arises or where, for example, someone suffers from dementia and family members ask banks to take steps to protect that person’s financial wellbeing.

The unfortunate reality is that there still exists a great deal of uncertainty under current law about what personal data can be processed for safeguarding purposes. My brief of crime, vulnerability and safeguarding means that all too often—perhaps in the context of domestic abuse—agencies will gather, sadly, to conduct a domestic homicide review and discover that had certain pieces of information been shared more freely, perhaps more action could have been taken by the various agencies and adults and children could have been safeguarded.

These amendments are aimed at tackling these issues. We want to stop the practice whereby some organisations have withheld information from the police and other law enforcement agencies for fear of breaching data protection law and other organisations have been unclear as to whether consent to processing personal data is required in circumstances where consent would not be reasonable or appropriate. The amendments intend to address the uncertainty by providing relevant organisations with a specific processing condition for processing sensitive personal data for safeguarding purposes. I beg to move.

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

I rise to put on record my thanks to the Minister for listening carefully to my noble Friend Lord Stevenson. There was strong cross-party consensus on these common-sense reforms.

We all know that in our own constituencies there are extraordinary people doing extraordinary things in local groups. They are the life-blood of our communities. Many of them will be worried about the new obligations that come with the general data protection regulation and many of them will take a least-risk approach to meeting the new regulations. Putting in place some common safeguards to ensure that it is possible to keep data that allow us to spot important patterns of behaviour that can lead to appropriate investigations is very sensible and wise. These amendments will therefore be made with cross-party support.

Amendment 84 agreed to.

Amendments made: 85,  in schedule 1, page 126, line 38, at end insert—

“Safeguarding of children and of individuals at risk

14A (1) This condition is met if—

(a) the processing is necessary for the purposes of—

(i) protecting an individual from neglect or physical, mental or emotional harm, or

(ii) protecting the physical, mental or emotional well-being of an individual,

(b) the individual is—

(i) aged under 18, or

(ii) aged 18 or over and at risk,

(c) the processing is carried out without the consent of the data subject for one of the reasons listed in sub-paragraph (2), and

(d) the processing is necessary for reasons of substantial public interest.

(2) The reasons mentioned in sub-paragraph (1)(c) are—

(a) in the circumstances, consent to the processing cannot be given by the data subject;

(b) in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing;

(c) the processing must be carried out without the consent of the data subject because obtaining the consent of the data subject would prejudice the provision of the protection mentioned in sub-paragraph (1)(a).

(3) For the purposes of this paragraph, an individual aged 18 or over is “at risk” if the controller has reasonable cause to suspect that the individual—

(a) has needs for care and support,

(b) is experiencing, or at risk of, neglect or physical, mental or emotional harm, and

(c) as a result of those needs is unable to protect himself or herself against the neglect or harm or the risk of it.

(4) In sub-paragraph (1)(a), the reference to the protection of an individual or of the well-being of an individual includes both protection relating to a particular individual and protection relating to a type of individual.”

Part 2 of Schedule 1 describes types of processing of special categories of personal data which meet the requirement in Article 9(2)(g) of the GDPR (processing necessary for reasons of substantial public interest) for a basis in UK law (see Clause 10(3)). This amendment adds to Part 2 of Schedule 1 certain processing of personal data which is necessary for the protection of children or of adults at risk. See also Amendments 116 and 117.

Amendment 86, in schedule 1, page 126, line 38, at end insert—

“Safeguarding of economic well-being of certain individuals

14B (1) This condition is met if the processing—

(a) is necessary for the purposes of protecting the economic well-being of an individual at economic risk who is aged 18 or over,

(b) is of data concerning health,

(c) is carried out without the consent of the data subject for one of the reasons listed in sub-paragraph (2), and

(d) is necessary for reasons of substantial public interest.

(2) The reasons mentioned in sub-paragraph (1)(c) are—

(a) in the circumstances, consent to the processing cannot be given by the data subject;

(b) in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing;

(c) the processing must be carried out without the consent of the data subject because obtaining the consent of the data subject would prejudice the provision of the protection mentioned in sub-paragraph (1)(a).

(3) In this paragraph, “individual at economic risk” means an individual who is less able to protect his or her economic well-being by reason of physical or mental injury, illness or disability.”—(Victoria Atkins.)

Part 2 of Schedule 1 describes types of processing of special categories of personal data which meet the requirement in Article 9(2)(g) of the GDPR (processing necessary for reasons of substantial public interest) for a basis in UK law (see Clause 10(3)). This amendment adds to Part 2 of Schedule 1 certain processing of personal data which is necessary to protect the economic well-being of adults who are less able to protect their economic well-being by reason of a physical or mental injury, illness or disability.

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In 2016, Her Majesty’s Inspectorate of Constabulary found serious inconsistencies between and within forces regarding data sharing and responding to missing children and high-risk missing adults. This issue has been highlighted by the inspectorate, and I am sure that the Minister understands the urgency of getting such a register in place. The case for the amendment is clear: it supports principles that have been outlined by the Government, and it would support our most vulnerable people and go some way towards relieving pressure on the police when responding to those high-risk missing individuals.

[Victoria Atkins]

I am grateful to the hon. Member for Sheffield, Heeley for affording me the opportunity to update the Committee on our progress in establishing a national register of missing persons, and to touch on the missing children and adults strategy that the Government are currently working on, which I hope will be published shortly. It will address many of the themes that the hon. Lady drew on in her speech, particularly the deliberate targeting of vulnerable children by county lines gangs, children who go missing—usually, sadly, from care homes—and the exploitation that occurs.

As the hon. Lady said, this is an important subject because each year more than 337,000 calls are made to police stations in England and Wales about missing and absent people. Happily, the vast majority are found within 24 hours, but 2% or thereabouts remain missing for more than a week. Anyone who has ever met the parents of children who go missing knows the heartache that those parents face, not just on an annual basis, but on a daily, minute-by-minute basis. They feel that pain constantly.

People who go missing are often the most vulnerable in society, and it is vital that those tasked with investigating their disappearance have the most accurate and up-to-date information available. We accept that the current technology available to frontline staff to deal with missing persons is insufficient. For example, the police national computer identifies only those currently reported as missing, while the National Crime Agency database includes only those missing for more than 72 hours. We know that the search must start the moment that a child or vulnerable person is identified as missing; we cannot wait for 72 hours. There is no national record of the history of missing persons in England and Wales.

The Government’s “Tackling child sexual exploitation: progress report” published in February last year set out our commitment to deliver a national missing persons register. This will enable police officers to access up-to-date data about missing people across force boundaries and take appropriate action when they investigate missing person incidents or encounter a missing person who is away from his or her home force area. The register is being established as part of the national law enforcement data programme, which will replace the police national computer and the police national database with a new national data service. The current timetable, agreed with the police, is to launch the capability for forces to record manually missing and associated found incidents from mid-2019 with releases thereafter, including automation and establishing the ability to share controlled information beyond policing to other agencies.

In terms of the way in which the register and the scheme interplay in the Bill, the processing of the personal data held on the database will take place under either the GDPR or part 3 of the Bill. Processing of the data by the police will often be for a law enforcement purpose, including the prevention, investigation or detection of a criminal offence and any sensitive processing would fall within paragraph 3 of schedule 8, which enables processing where necessary to protect the vital interests of the data subject or another individual, or under the new safeguarding condition, which we have just debated. Where the processing is undertaken under the GDPR, the conditions in respect of protecting the vital interests of the data subject, or preventing or detecting unlawful acts, may apply. Again, the new safeguarding condition may also be applicable.

Given those provisions and the very clear timetable that the Government and police have for their programme, we are of the view that the amendment is unnecessary, but I am, of course, very appreciative that the hon. Lady has raised this in the Committee. Obviously, I will keep her informed of progress on the new register.

[Louise Haigh]

That is fantastic news. It is a very ambitious deadline for a police IT transformation programme. I know that South Yorkshire is going through the transformation on the CONNECT programme at the moment; it is woefully behind the timescale envisaged and over budget, as every IT transformation in the history of any Government, of any colour, has always been. I wonder, therefore, given the urgency of this issue, whether it is possible for this information to be recorded on the PNC for the time being.

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[Victoria Atkins]

I am looking at my officials and they will stop me if I am wrong, I hope. If she prefers, may I write to her? I do not think that the PNC has the capability at the moment. That is why we are having to develop this new programme, but we will write to the hon. Lady in any event. As I say, I will keep her up to date with progress. But I invite her to withdraw the amendment, please.

[Louise Haigh]

Given that the Minister asked so nicely, I will. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 87, in schedule 1, page 127, line 30, at end insert—

“( ) The reference in sub-paragraph (4)(b) to a data subject withholding consent does not include a data subject merely failing to respond to a request for consent.”

This amendment clarifies the intended effect of the safeguard in paragraph 15(4) of Schedule 1 (processing necessary for an insurance purpose).

Amendment 88, in schedule 1, page 127, line 39, at end insert—

“( ) is of data concerning health which relates to a data subject who is the parent, grandparent, great-grandparent or sibling of a member of the scheme,”.

This amendment provides that the condition in paragraph 16 of Schedule 1 (occupational pension schemes) can only be relied on in connection with the processing of data concerning health relating to certain relatives of a member of the scheme.

Amendment 89, in schedule 1, page 128, line 6, at end insert—

“( ) The reference in sub-paragraph (2)(b) to a data subject withholding consent does not include a data subject merely failing to respond to a request for consent.”

This amendment clarifies the intended effect of the safeguard in paragraph 16(2) of Schedule 1 (processing necessary for determinations in connection with occupational pension schemes).

Amendment 90, in schedule 1, page 131, line 14, at end insert—

“( ) If the processing consists of the disclosure of personal data to a body or association described in sub-paragraph (1)(a), or is carried out in preparation for such disclosure, the condition in sub-paragraph (1) is met even if, when the processing is carried out, the controller does not have an appropriate policy document in place (see paragraph 5 of this Schedule).”

This amendment provides that when processing consists of the disclosure of personal data to a body or association that is responsible for eliminating doping in sport, or is carried out in preparation for such disclosure, the condition in paragraph 22 of Part 2 of Schedule 1 (anti-doping in sport) is met even if the controller does not have an appropriate policy document in place when the processing is carried out.

Amendment 91, in schedule 1, page 133, line 17, leave out from “interest” to end of line 21.—(Margot James.)

This amendment removes provisions from paragraph 31 of Schedule 1 (extension of conditions in Part 2 of Schedule 1 referring to substantial public interest) which are unnecessary because they impose requirements which are already imposed by paragraph 5 of Schedule 1.

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[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.

[Ian Murray]

I do not think anybody on the Committee would disagree with the statement that the staff work incredibly hard. Would it not be a show of solidarity with those staff to give them the resources they require to do the job properly?

[Victoria Atkins]

The hon. Gentleman is starting the debate in very sparky form.

[Ian Murray]

You started it.

[Victoria Atkins]

I didn’t start it. The point is that, when people talk obliquely about the Home Office, it is people working in the Home Office who have to make these decisions day in, day out and who have to apply the law and do their best. I think we need to bear that in mind when we are talking about the Home Office system and how bad it is.

The provision relating to data processing for the purposes of immigration control in paragraph 4 of schedule 2 has been the subject of much debate. I would like to address some of the misunderstandings that have clearly arisen during the course of the Bill around both the purpose and scope of the provision. I hope I can persuade the Committee that this is a necessary and proportionate measure to protect the integrity of our immigration system.

[Mr Alister Jack (Dumfries and Galloway) (Con)]

Opposition Members have expressed concern, which I would like to emphasise, that this exemption is too wide. Can the Minister provide an assurance that that is not the case?

[Victoria Atkins]

Very much so. I will take it slowly because it is complicated and I want to ensure that the points raised today have been addressed. First, I was asked who decides the definition of effective immigration control in the schedule. That is an established term of art. It is used, for example, in the Immigration Act 2014. The Freedom of Information Act 2000 uses a similar term, namely

“the operation of the immigration controls”.

In the context of the schedule, we have adopted a wraparound term such as that, rather than set out a detailed list of specific immigration-related functions to which the exemption might be applied. Given the undoubted complexity of immigration legislation, there is a danger that any such list would be incomplete and would need to be regularly reviewed and updated. The term is either the precise term or similar to those already in law, such as in the Freedom of Information Act, which has been law for 18 years.

The hon. Member for Argyll and Bute seems concerned that once the Home Office system has accessed some of this information, it is lost forever and will not be revealed to the person whom it concerns. I will give case examples later, but I reassure him that the way in which we describe this exemption in the Home Office is that it is a pause on two of the data protection principles. Once the pause is lifted, because the end has been achieved—the person has been found or whatever—all those rights kick back in again, and they are able to make requests for the information that the hon. Gentleman set out. We see it as a pause, not as a long-standing and permanent exemption. It is just for the precise circumstances of enabling the immigration system and its protections.

[Liam Byrne]

The Under-Secretary of State will know better than anybody that there are very tight time limits over the windows within which people can ask for entry clearance officer reviews or reconsideration, either by an immigration official or, in extremis, by the Minister. How long will the pause last, and can she guarantee the Committee today that the pause will never jeopardise the kick-in of time limits on an appeal or a reconsideration decision?

[Victoria Atkins]

The reason for the pause is—I will give case studies of this—to enable the immigration system to operate. If someone has gone missing, requests for data will be required to find that person. Once that person is found, and there is no longer a need to apply the exemption, it will be lifted.

[Liam Byrne]

That is not an answer to my question. I am asking for a guarantee to the Committee this afternoon that the pause will never jeopardise somebody’s ability to submit a valid request for a reconsideration or an appeal with the information that they need within the time windows set out by Home Office regulations—yes or no.

[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 will move on to the case studies in a moment, as I have given way several times. First, I will lay out the titles, then I will come on to article 23. Again, our analysis is that the provision fits within one of the exemptions in article 23. That is precisely the reason that we have drawn it in this way.

We very much welcome the enhanced rights and protections for data subjects afforded by the GDPR. The authors of the GDPR accepted that at times those rights need to be qualified in the general public interest, whether to protect national security, the prevention and detection of crime, the economic interests of the country or, in this case, the maintenance of an effective system of immigration control. Accordingly, a number of articles of the GDPR make express provision for such exemptions, including article 23(1)(e), which enables restrictions to be placed on certain rights of data subjects. Given the extension of data subjects’ rights under the GDPR, it is necessary to include in the Bill an explicit targeted but proportionate exemption in the immigration context.

The exemption would apply to the processing of personal data by the Home Office for the purposes of

“the maintenance of effective immigration control, or…the investigation or detection of activities that would undermine the maintenance of effective immigration control”.

It would also apply to other public authorities required or authorised to share information with the Department for either of those specific purposes.

Let me be clear on what paragraph 4 of schedule 2 does not do. It categorically does not set aside the whole of the GDPR for all processing of personal data for all immigration purposes. It makes it clear that the exemption applies only to certain GDPR articles. The articles that the exemption applies to are set out in paragraph 4(2) of schedule 2. They relate to various rights of data subjects provided for in chapter 3 of the GDPR, such as the rights to information and access to personal data, and to two of the data protection principles—namely the first one, which relates to fair and transparent processes, and the purpose limitation, which is the second one.

[Liam Byrne]

As I understand it, the derogations that are sought effectively remove the right to information in article 13; the right to information where data is obtained from a third party in article 14; the right of subjects’ access in article 15; the right to erasure in article 17; the right to restriction of processing in article 18; the right to object in article 21(1); the principle of lawful, fair and transparent processing in article 5; the principle of purpose limitation in article 5(1)(b); and the data protection principles in article 5 of lawfulness, fairness, transparency, purpose limitation, data minimisation, accuracy, storage limitation, integrity, confidentiality and accountability to the extent that they correspond to the rights above. That is a pretty broad set of rights to be cast out.

[Victoria Atkins]

Those are not the data protection principles. If one continues to read on to paragraph 4(2)(b) of schedule 2, it sets out the two data protection principles that I have just highlighted. The provisions set out in sub-paragraph (2)(a) relate to the data protection principles of fair and transparent processing and the purpose limitation. As I say, this is not a permanent removal. This is, as we describe it, a pause. There is not a free hand to invoke the permitted exception as a matter of routine.

All of the data protection principles, including those relating to data minimisation, accuracy, storage limitation and integrity and confidentiality, will continue to apply to everyone. So, too, will all the obligations on data controllers and processors, all the safeguards around cross-border transfers, and all the oversight and enforcement powers of the Information Commissioner. The latter is particularly relevant here, as it is open to any data subject affected by the provisions in paragraph 4 of schedule 2 to make a complaint to the Information Commissioner that the commissioner is then under a duty to investigate. Again, I hope that that addresses some of the concerns that the hon. Member for Argyll and Bute raised.

Contrary to the impression that has perhaps been given or understood, paragraph 4 does not give the Home Office a free hand to invoke the permitted exceptions as a matter of routine. The Bill is clear that the exceptions may be applied only to the extent that the application of the rights of data subjects, or the two relevant data protection principles, would be likely to prejudice

“the maintenance of effective immigration control, or…the investigation or detection of activities that would undermine the maintenance of effective immigration control”.

That is an important caveat.

[Liam Byrne]

The Minister will know that in paragraph 2(1)(a) we already have a set of exemptions that relate to the prevention or detection of a crime, including, presumably, all of the crimes that fall into the bucket of organising or perpetrating illegal immigration. Despite constant pressing during the debate in the other place and here, we have not yet had a clear answer as to why additional powers and exemptions are needed, over and above the powers expressly granted and agreed in paragraph 2(1)(a).

[Victoria Atkins]

I am grateful to the right hon. Gentleman for raising that issue, because it allows me to get to the nub of how we approach the immigration system. We do not see the immigration system as some form of criminality or as only being open to the principles of criminal law. He will know that we deal with immigration in both the civil law and criminal law contexts. The exemption he has raised in terms of paragraph 2 of the schedule deals with the criminal law context, but we must also address those instances where the matter is perhaps for civil law.

We know that in the vast majority of immigration cases, people are dealt with through immigration tribunals or through civil law. They are not dealt with through criminal law. That is the point; we must please keep open the ability to deal with people through the civil law system, rather than rushing immediately to criminalise them. If, for example, they have overstayed, sometimes it is appropriate for the criminal law to become involved, but a great number of times it is for the civil law to be applied to deal with that person’s case either by way of civil penalty or by finding an arrangement whereby they can be given discretion to leave or the right to remain. We have the exemption in paragraph 4 so that we do not just focus on the criminal aspects that there may be in some immigration cases. We must ensure that we also focus on the much wider and much more widely used civil law context.

It is important to recognise that the exemptions will not and cannot be targeted at whole classes of vulnerable individuals, be they victims of domestic abuse or human trafficking, undocumented children or asylum seekers. The enhanced data rights afforded by the GDPR will benefit all those who are here lawfully in the United Kingdom, including EU citizens. The relevant rights will be restricted only on a case-by-case basis where there is evidence that the prejudice I have mentioned is likely to occur.

[Peter Heaton-Jones (North Devon) (Con)]

The Minister specifically mentioned EU citizens. There have been concerns that the exemption will impact those EU nationals who are already here and who, as we have already heard, are contributing hugely to the UK. Can she assure us that the exemption is not targeted at them?

[Victoria Atkins]

Absolutely. The exemption will not be enacted on the basis of nationality. It is enacted on a case-by-case basis to uphold the integrity of the immigration system. There will be no question of EU nationals being in any way targeted by it. Indeed, we know the great effect that EU nationals and other people from other countries have had in this country, and we certainly would not be looking to target them on the basis of nationality.

[Darren Jones]

Is it not right to say that EU citizens will be part of the immigration system? They will be immigrants with immigration rights as part of the Brexit process. These rules could therefore apply to them, could they not? Secondly—

[Victoria Atkins]

I will answer the first one—yes. The hon. Gentleman asked whether EU citizens would be targeted. Once we leave the European Union, we will have our own immigration policy. There will clearly be no distinction between EU and non-EU, because everyone will be outside of the UK, if I may put it that way, very inelegantly.

[Darren Jones]

But they would still be subject to the right to exempt them from their data protection rights. I welcome the Minister’s comments on the time-limited nature of the intention of using the rules, but can she point me to the section of the Bill that defines that time limit, because I am struggling to find it?

[Victoria Atkins]

If I may, I will come back to that point in a moment. In the case of subject access requests, each request would need to be considered on its own merits. For example, we could not limit the information given to visa applicants on how their personal data would be processed as part of that application. Rather, the restrictions would be applied only where there was a real likelihood of prejudice to immigration controls as a result of disclosing the information concerned.

--- Later in debate ---

[Liam Byrne]

If someone has overstayed, they have committed a crime. Therefore, paragraph 2(1)(a) absolutely bites. We are seeking to prevent that crime. Someone who has overstayed their visa has committed a crime. It is kind of as simple as that.

[Victoria Atkins]

In that scenario, we may well effect their removal administratively. It does not mean that it is going through the criminal courts.

By way of a second example, take a case where the Home Office is considering an application for an extension of leave to remain in the UK. It may be that we have evidence that the applicant has provided false information to support his or her claim. In such cases, we may need to contact third parties to substantiate the veracity of the information provided in support of the application. If we are then obliged to inform the claimant that we are taking such steps, they may abscond and evade detection.

[Liam Byrne]

If someone has submitted false information in support of an application to the Government, and signed it, as they must, that is called fraud. That is also a crime, and is covered by paragraph 2(1)(a).

[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.

[Liam Byrne]

I just want to dissolve one confusion in the Minister’s remarks. The nature of the Home Office response, whether it is a prosecution through a civil court, a civil sanction or a civil whatever else, does not affect the nature of the offence that is committed. The Home Office has a range of sanctions and choices in responding to an offence, but that does not stop the offence being an offence. The offence is still a crime, and is therefore covered by paragraph 2(1)(a).

[Victoria Atkins]

The right hon. Gentleman is assuming that each and every immigration case that will be covered by these provisions necessitates the commission of a crime.

[Liam Byrne]

We are preventing crime.

[Victoria Atkins]

I would not make that assumption. The vast majority of immigration cases are dealt with in a civil context.

[Darren Jones]

Will the Minister give way?

[Victoria Atkins]

No, forgive me. I have been very generous with interventions. I am going to make some progress, and then no doubt others will intervene on me in due course.

I turn to the charge that the exemption has no basis in EU law. Article 23 of the GDPR allows member states to restrict the application of certain provisions of the regulation to safeguard important objectives of general public interest. Immigration control constitutes one such objective. We see immigration as an important matter of public interest, and the GDPR allows member states to exempt rights where that is the case. We are not alone in our belief that immigration is an important matter of general public interest. The Irish Government clearly stated that in their own Data Protection Bill. Clause 54 of the Irish Bill gives powers to make regulations restricting certain rights and obligations under the GDPR to safeguard important objectives of general public interest. The list of such objectives in the Bill includes matter relating to immigration.

Opposition Members have talked about their concerns about the fact that these provisions may be covered by paragraph 2 of the schedule. I want to reflect on the outcome of the debate on this provision in the House of Lords, which contains many noble Lords who are extremely learned in the law, have much experience of campaigning on immigration rights and so on. We listened very carefully to the concerns raised at Lords Committee stage, and as a result the Government tabled amendments at Lords Report stage to narrow the scope of the exemption so that it no longer covers the right to rectification and data portability. In response to those amendments, Lord Kennedy of Southwark said:

“The amendments tabled by the Government provide important clarification on what is exempt, limit the power in Bill and seek to address the concerns highlighted during the previous debate and today…I am happy to support their amendments.”—[Official Report, House of Lords, 13 December 2017; Vol. 787, c. 1590.]

Furthermore, in a Division on a Liberal Democrat amendment to strike out the immigration exemption, the official Opposition abstained. I wonder what has changed between their abstaining on that amendment and accepting that the Government’s amendments were sufficient, and today. Nothing has changed since the Bill left the Lords, so perhaps the right hon. Member for Birmingham, Hodge Hill can help us with why their position has changed.

I hope I have been able to satisfy the Committee that this provision is necessary and important.

[Gareth Snell (Stoke-on-Trent Central) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Mr Hanson. Will the Minister give a tangible example, as she has done in other cases, of where an immigration case may require exemption under paragraph 4—in other words, a case in which a crime has not been committed and therefore would not be covered under paragraph 2(2)? The cases she has mentioned so far would, on the face of it, be covered by paragraph 2(2), because a criminal act had taken place or was about to take place.

[Victoria Atkins]

There may be occasions when there is a person we have lost track of whose status is irregular. If we know they have a child, we will seek from the Department for Education assistance to find the whereabouts of the child. That child has not committed a criminal offence, so I would be very concerned to ensure that the Home Office, Border Force or whoever else acted lawfully when seeking that data in order to enable them to find the parent or whoever is the responsible adult, as part of the immigration system.

[Louise Haigh]

In that example, would the exemption not be covered under the safeguarding exemption, as brought by the Government amendment to schedule 1?

[Victoria Atkins]

I have to say, that had not occurred to me as an obvious—

[Louise Haigh]

A missing child?

[Victoria Atkins]

No—the child is not missing, but the parent is; so we seek advice from the Department for Education about where the child is. It may be that cleverer lawyers than me in the Home Office will find an exemption for that, but the point of this exemption of paragraph 4 is to cover the lawfulness of the Home Office in seeking such information in order to find parents or responsible adults who may have responsibility, and either to regularise their stay or to remove them.

I encourage the right hon. Member for Birmingham, Hodge Hill to withdraw his amendment, as we believe that it is not the wholesale disapplication of data subjects’ rights, and it is a targeted provision wholly in accordance with the discretion afforded to member states by the GDPR and is vital to maintaining the integrity and effectiveness of our immigration system.

[Liam Byrne]

Anyone who was not alarmed by this provision certainly will leave this Committee Room thoroughly alarmed by the Minister’s explanations.

First, we were invited to believe that we could safeguard due process and the rights of newcomers to this country by suspending those rights and pursuing people through civil court. We were then asked to believe that the Home Office’s ambition to deal with these cases with civil response rendered inoperable the powers set out in paragraph 2(1)(a), confusing the response from the Home Office and the nature of the offence committed up front. Then, we were invited to believe that this was not a permanent provision—even though that safeguard is not written into the Bill—but a temporary provision. What is not clear is when those temporary provisions would be activated and, crucially, when they would be suspended.

[Victoria Atkins]

rose—

[Liam Byrne]

I am happy to give way in a moment. Most of us here who have done our fair share of immigration cases—I have done several thousand over the last 14 years—know that on some occasions, the Home Office interpretation of time is somewhat different from a broadly understood interpretation of time. I have cases in which a judge has ordered the issue of a visa, and six months later we are still chasing the Home Office for the issue of the visa. I will not be alone in offering these examples.

Perhaps when the Minister intervenes, she could set out what “temporary” means, where it is defined and where are the limits, and she still has not answered my question whether she will guarantee that the implementation of this pause will not jeopardise someone’s ability to submit either a request for an entry clearance officer review or an appeal within the legally binding time windows set out in Home Office regulations.

[Victoria Atkins]

The key to this is the purpose for which we are processing the data. Even if there are criminal sanctions, that does not mean that we are processing for that purpose, particularly where we are not likely to pursue a prosecution. The primary purpose is often immigration control—that does not fit under paragraph 2 as he has described it—rather than enforcing the criminal justice system. That is the point. It is for the purpose of processing the data. The crime-related provisions in the Bill refer to the importance of identifying the purposes of the processing. Where the primary purpose is immigration related, it is not clear that we could rely on the crime-related exemptions. That is why paragraph 4 is in the schedule.

[Liam Byrne]

I am really sorry to have to say this, but that is utter nonsense. The idea that the Home Office will seek to regularise someone’s immigration status by denying them access to information that might support their case is, frankly, fanciful.

This is not a new debate; we last had it in 1983. The Home Office tried to sketch this exemption into legislation then, it failed, and we should not allow the exemption to go into the Bill, especially given that all the explanations we have heard this afternoon are about cases where paragraph 2(1)(a), or the safeguarding provisions drafted by the Government, would provide the necessary exemptions and safeguards in the contingencies that the Minister is concerned about.

--- Later in debate ---

[Liam Byrne]

My hon. Friend is bang on the money, but perhaps the Under-Secretary can enlighten us.

[Victoria Atkins]

All rights are reinstated once the risk to prejudice is removed. The wording is in line 35 of paragraph 4:

“to the extent that the application of those provisions would be likely to prejudice any of the matters mentioned in paragraphs (a) and (b).”

To reassure the hon. Member for Bristol North West, that is the end point.

[Liam Byrne]

I am grateful to the Under-Secretary for clarifying a point that was not at issue. No one is concerned about what rights kick back in at the end of a process. We are worried about how long the process will last, who will govern it, what rights newcomers to this country or courts will have to enforce some kind of constraint on the process and how we will stop the Home Office embarking on unending processes in a Jarndyce v. Jarndyce-like way, which we know is the way these cases are sometimes prosecuted. The Home Office is full of some of the most amazing civil servants on earth, but perhaps, a little like the Under-Secretary, they are sometimes good people trapped in bad systems and, dare I say it, bad arguments.

Question put, That the amendment be made.