My Lords, I want to add a brief coda to my noble friend’s remarks. As the Liberal Democrats’ digital spokesperson, I was closely involved in the passage of the Data Protection Bill. I commend my noble friend Lady Hamwee for her consistent and determined opposition to this immigration exemption. Sadly, during the passage of the Bill, we did not succeed in deleting these provisions, but we are quite clear that this new SI does not at all, in the words of the Minister, reflect the safeguards required by the GDPR. I thought that her statement that the original did not fully reflect the safeguards required by the GDPR was somewhat provocative, given the Court of Appeal’s decision. However, it is clear.
On this side of the Committee, we all supported the case taken by Open Rights and the3million in order to overturn this exemption. One can only wonder what kind of advice the Minister has had. How has she been able to convince herself that this SI will not meet the same fate as the previous provisions? If you read what Lord Justice Warby had to say last May, what needs to be done is blindingly obvious:
“It is not to be forgotten that the Immigration Exemption applies to a range of private bodies and individuals. In any event, the term ‘legislative measure’, whatever its precise scope, must refer to something other than a non-binding code promulgated by a regulator that counts as a relevant consideration for the purposes of administrative decision-making … I have indicated a provisional view that the legislative measure in question must be”—
the words quoted by my noble friend Lady Hamwee—
“part and parcel of the legislation.”
Surely there must be legal advice underpinning all this which must have examined very closely precisely what Recital 41 of EU GDPR had to say—again, my noble friend quoted this:
“Where this Regulation refers to a legal basis or a legislative measure, this does not necessarily require a legislative act”—
that means primary legislation—
“… without prejudice to requirements pursuant to the constitutional order of the Member State concerned. However, such a legal basis or legislative measure should be clear and precise and its application should be foreseeable.”
It is utterly clear that the provisions being put in place today do not comply with any of that, and certainly not with the way in which Lord Justice Warby interpreted Recital 41. One could almost say that the Home Office is being reckless in going forward with this construct, with an IEPD which is simply not good enough. There has been no consultation. As both my noble friends have said, it adds nothing in the way of safeguards, which were there. Essentially, it seems that the Home Office is disrespecting the decision of the Court of Appeal. As we know, the Government have form in disrespecting the decisions of the judiciary and maybe this is just a continuation of that. It is very sad to see, but I cannot imagine that the Minister would want to proceed on such shaky foundations.