Data Protection Bill [HL] — House of Lords, 2017-11-13
Topic: Mixed Topics
Susan Williams (Conservative, Centre-right): My Lords, I thank all noble Lords who have taken part in the debate. There is clearly a lot of interest, as is evident from what has been said. I am also glad to be back opposite the noble Lord, Lord Kennedy of Southwark, as we have been on so many occasions, and I am sure we will be in the future. It is probably worth addressing some of the evident misunderstandings that have arisen around the purpose and the scope of this provision, and I hope to be able to persuade the Committee that this is a necessary and proportionate measure to protect the integrity of our immigration system The Government welcome the enhanced rights and protections for data subjects afforded by the GDPR and in negotiating, it was accepted by all parties that at times these rights needed to be qualified in the general public interest, whether that is to prevent and detect crime, safeguard legal professional privilege or journalists’ sources, or in this case maintain an effective system of immigration control. A number of articles of the GDPR therefore make express provision for such derogations, including article 23, 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 that we include in the Bill an express targeted exemption in the immigration context. The exemption would apply to the processing of personal data by immigration officers and the Secretary of State for the purposes of maintaining effective immigration control or the detection and investigation of activities which would undermine the system of immigration control. It would also apply to other public authorities required or authorised to share information with the Secretary of State for either of those purposes It is important that it is clear to the Committee what paragraph 4 of Schedule 2 does not do. It emphatically does not set aside the whole of the GDPR for all processing of personal data for all immigration purposes. The opening words of paragraph 4 make it clear that only "the listed GDPR provisions" may be set aside. The listed GDPR provisions are those set out in paragraph 1 of Schedule 2. The provisions in question relate to various rights of data subjects as provided for in chapter 3 of the GDPR, such as the rights to information and to access to personal data, and to two of the data protection principles: those relating to fair and transparent processing and the purpose limitation. Except to that extent, all the data protection principles, including those relating to the lawfulness of processing, data minimisation, accuracy, storage limitation, and integrity and confidentiality will continue to apply. 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 lodge a complaint with the Information Commissioner, which the commissioner is then obliged to investigate Moreover, paragraph 4 does not give the Home Office carte blanche to invoke the permitted exceptions as a matter of routine. The Bill is clear: 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" This is a significant and important qualification. The noble Lord, Lord Clement-Jones, asked why we have not listed exactly what we mean by, "the maintenance of effective immigration control" The maintenance of that control does not merely encompass physical immigration controls at points of entry but, more generally, the arrangements made in connection with a person’s entry into and stay within the United Kingdom. A system of effective immigration control depends on our ability to control the entry and stay of those who wish to come to our country; to identify those who should not be admitted; and to pursue enforcement action against those who are liable to removal for failure to comply with restrictions and conditions on their stay, or otherwise in the public interest To use the example of the right conferred by article 15 of the GDPR, each subject access request would need to be considered on its own merits. We could not, for example, and would not want to limit the information given to visa applicants as to how their personal data will be processed as part of that application. Rather, the restrictions would bite only where there is a real likelihood of prejudice to immigration controls in disclosing the information concerned. It is equally important to dispel one other myth. Some of the briefing I have seen on this provision suggests that it creates new information-sharing gateways. This is simply not the case. As I have indicated, Schedule 2 sets out certain exceptions from the GDPR; it does not in and of itself create new powers to share data between data controllers. However, where personal data is shared between controllers for the limited immigration purposes specified in paragraph 4, it does mean that the data subject does not need to be notified if to do so would be prejudicial to the maintenance of effective immigration control It may assist the Committee if I explain the kind of information that it might be necessary to withhold from data subjects, and offer a couple of examples of the circumstances requested by the noble Baroness, Lady Hamwee, where to do so would be necessary to maintain the effectiveness of our immigration controls. The classes of information which the Home Office may need to withhold include a description of the data held, our data sources, the purposes for which the data was held, and details of the recipients to whom the data has been disclosed. There will be circumstances where the disclosure to data subjects of such information could afford them the opportunity to circumvent our immigration controls. Two examples will, I hope, help to illustrate where the disclosure of such information may have precisely the adverse effect First, in the case of a suspected overstayer, if we had to disclose in response to a subject access request what we are doing to track their whereabouts with a view to effecting administrative removal, it is clearly possible that they might then be able to evade enforcement action. A second example relates to circumstances where we seek to establish the legitimacy of a particular claim, such as an extension of leave to remain in the UK, and suspect that the claimant has provided false information to support that claim. In such a case, we may contact third parties to evidence the claim. If we are then obliged to inform the claimant that we are accessing records held by third parties, they may abscond and evade detection. Such procedures may then become common knowledge and further undermine our ability to maintain effective controls Immigration is, naturally, a very sensitive subject area and a topic of huge importance to the public, to the economic well-being of this country and to the social cohesion of our society. Being able to effectively control immigration is, therefore, in the words of the GDPR, "an important objective of general public interest". As I have indicated, having a new data protection regime which seeks to give broader rights to data subjects is to be welcomed. But in an area as sensitive as the immigration system, we need to make appropriate use of the limited exemptions available to us so that we can continue to maintain effective control of that system in the wider public interest I hope that I have been able to satisfy noble Lords that this provision is necessary and proportionate. It is not the wholesale carve-out of subject access rights that some have suggested but a targeted provision wholly in line with the discretion afforded to member states by the GDPR, and it is vital to maintaining the integrity of the immigration system Having given this provision a good airing, I hope the noble Lord, Lord Clement-Jones, will feel happy to withdraw his amendment.