My Lords, I thank the Minister for explaining these regulations. For the record, I think that it was the noble Baroness’s mobile phone that was making a noise, rather than the noble Baroness herself.
As my noble friend Lady Hamwee has explained, the Liberal Democrats opposed the immigration exemption when we debated the Data Protection Bill as it was—now the Data Protection Act 2018—which incorporated the EU general data protection regulation into UK law to ensure that the UK could be issued with a data adequacy certificate to enable the continued exchange of data with EU member states after Brexit. The Government sought to exempt data controllers to bypass and restrict fundamental rights where compliance was prejudicial to the maintenance of effective immigration control through the immigration exemption. This could be used by the Home Office to withhold information from those applying for leave to remain in the UK, for example, hampering their ability to challenge Home Office decisions to withhold permission.
The Court of Appeal decided that the immigration exemption contained inadequate safeguards to protect individual data subject rights and was therefore incompatible with UK GDPR. This SI, as the noble Baroness the Minister has explained, is an attempt to comply with the Court of Appeal judgment. Legal minds greater than mind say that this statutory instrument does not bring the legislation into line with the Court of Appeal judgment.
As noble Lords will know, I am not a lawyer, this SI is technical and I have been frying other fish. However, if providing applicants for asylum, for example, with all the information that the Home Office holds on them—information that it is using to decide their case—is considered to be prejudicial to the maintenance of effective immigration control, then the Government must surely withhold only that information that is likely to be prejudicial to the maintenance of effective immigration control.
For example, information from an informant, the disclosure of which would compromise the source, could be blocked, but the immigration exemption is not a blanket licence to refuse to provide any information on any claimant. Nor would it be acceptable for the Home Office to say, “We are not disclosing information under the immigration exemption”. It is surely in the interests of justice that if information is withheld an explanation is given about what kind of information is being withheld and for what reason. So even if the full details cannot be disclosed to the data subject, the data subject can tell an immigration tribunal the nature and extent to which they are appealing blindfold.
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As noble Lords have said, the Court of Appeal said that greater safeguards needed to be incorporated into legislation, not just into guidance, as this SI proposes. The Court of Appeal said that legislation needs to be clear and precise, not simply that the withholding of information is in the interests of immigration control. The Court of Appeal also said that the consequences must be foreseeable, as my noble friend Lady Hamwee said, unlike this SI, which relies on guidance that can be changed at any time without notice and without parliamentary scrutiny. I understand that the Home Office has been distracted by conjuring up new public order legislation at short notice that it introduced into this House at the last minute. Bearing in mind what a waste of time that turned out to be, perhaps it should have been concentrating instead on the Court of Appeal decision in this case.
I am advised that this statutory instrument does not comply with the Court of Appeal’s decision. This needs to be brought to the attention of the House, and we will table a regret Motion to that effect. I am also advised that a court challenge is inevitable if these regulations are the basis of the response to the decision of the Court of Appeal. I look forward to the Minister’s response.