My Lords, we support these regulations. There is currently an exemption in our data protection law known as the immigration exemption, as the Minister explained when she introduced this statutory instrument. It disapplies some data protection rights and obligations where applying them would have a prejudicial effect on maintaining effective immigration control or on detection of activities that would
“undermine the maintenance of effective immigration control”.
In practice, this means that the Home Office and other organisations processing information on its behalf can refuse an individual access to their personal information. That has been the burden of the points made by the other noble Lords who have spoken in this short debate. Concerns were raised about the immigration exemption in both Houses of Parliament when the Data Protection Act 2018 was passed. The Government refuted the concerns raised, stating that it had adequate safeguards.
We have heard about the court case, and I suspect we have received the same briefing; my briefing is from the3million and the Open Rights Group, which took the case to the Court of Appeal. I will quote from the letter I received which, as I said, repeats some of the points noble Lords have made. Those groups consider that the draft statutory instrument “does not meet” the requirements of the Court of Appeal and state that:
“The basic problem is simple to identify. The Court of Appeal decided that Article 23(2) of the UK GDPR required additional safeguards. The draft Regulations do not contain those safeguards … At paragraphs 53 and 54 of the first judgment, Lord Justice Warby expresses his provisional view that the legislative measure in question should be ‘part and parcel’ of the legislation that creates the derogation. The proposed regulations do nothing to expand the safeguards applying to the existing exemption; it retains its imprecise and unclear wording. No changes have been made to adopt the above observations of the court … The draft legislation instead makes reference to guidance … that is removed from the legislation, and which cannot be said to be ‘part and parcel’ of the legislation. Such guidance has no force in law and can be changed with ease and no scrutiny. Nor has the guidance been approved by Parliament. It does not have, for example, the status of a Code of Practice that is approved by Parliament. This undermines the principles set out for legislative measures to be clear, precise and foreseeable.”
Those points have been made by all noble Lords who have spoken, and we agree with them. It is clear from other noble Lords’ contributions that they have considerably more history on this subject than I have.
However, I read the debate in the other place and was interested in the questions put by the Conservative Back-Benchers to Kevin Foster, the Minister concerned. Michael Fabricant asked whether there was likely to be another appeal. This is not the Government appealing to the Supreme Court—they have obviously decided that they are not going to do that—but appeals by other groups such as those mentioned. Indeed, may there need to be further legislation? That is another point to which I can see the noble Lord, Lord Clement-Jones, nodding his head. The Liberal Democrats have stated their intention to move a Regret Motion for further debate at another time.
As I said, I came to the wider debate recently and listened with great interest to what the Liberal Democrats said. We support these regulations as far as they go but I suspect the story will be ongoing and I am interested to hear the Minister’s response.