Ed Davey: Data protection exemption for immigration will ruin thousands of lives

The Government’s Data Protection Bill is generally good, but its exemption for immigration is a very bad thing. Ed Davey explained why the measure will ruin thousands of lives in his speech in the Commons debate this week.

I want to speak about the actual Bill, not amendments made in the other House. This piece of legislation is very welcome. It emanates from the EU, and I am delighted that the Government are implementing it. This regulation was being formed when I was a junior Minister in the then Department for Business, Innovation and Skills, and Britain was very supportive of it and was leading on it. Indeed, I served on the Competitiveness Council and formed a like-minded group for growth, on which Britain was leading the way in Europe in developing further the single market in energy and in digital services. It was clear that this regulation was essential for British business, because Britain was leading in digital services and needed this to support our businesses trading across the EU, and to give consumers the confidence that this brings. It was a key area for business for Britain, and we pushed it.

It is therefore particularly ironic that we are transposing this regulation into UK law just as we are pulling out of the EU. The legislation before us is excellent, it has cross-party support and it is a perfect example of why Brexit is a bad idea for the UK. We were highly influential in the conception and birth of this regulation as a member of the EU, but thanks to Brexit, we will not be at the conception and birth of a daughter of this EU regulation. There is bound to be a daughter of the GDPR, given the speed with which these technologies are developing. Inside the EU, the UK fashioned this regulation; we were a rule maker, and we were in control. With Brexit, we will not have a vote, we will be a rule taker, and we will have lost control. There could not be a clearer example of how Brexit will actually weaken Britain’s democracy and sovereignty—the precise reverse of what was promised to the people. Although I welcome this legislation in general, I do fear for the future.

However, I have one massive concern about the Bill. It relates not to what came from the EU, but to what Whitehall has done to the legislation. It used to be called “gold-plating”, but in this case I would call it “dirt-smearing” the regulation. I refer, of course, to the immigration exemption in schedule 2. I am disturbed about that for a number of reasons, some of which other Members have mentioned. However, to get the Minister’s attention, I should say that if the legislation is passed with that exemption, that will put at risk the chances of the UK’s obtaining a data adequacy agreement prior to Brexit—something essential for business and vital for security. The immigration exemption is not allowed under the EU’s regulation; it will be found to be illegal. It is clearly in breach of the EU’s charter of fundamental rights, undermining article 8 on the protection of personal data, article 20 on equality before the law and article 21 on non-discrimination.

Take the central example of what the exemption will mean for citizens from other EU countries—the 3 million here already and those who will come in the years ahead. Does the Minister really expect the Commission ​and the EU’s Brexit negotiators to turn a blind eye to the theft of data protection rights from EU citizens that the immigration exemption represents? It is a clear and evident breach of faith with the December agreement on EU citizens. There is simply no way that the EU could or should grant the UK a data adequacy agreement if we intend to take data protection rights from its citizens with this measure. That is before Brexit; if we do not secure a data adequacy agreement while we are in the EU, it will be far more difficult and demanding as a third country. The granting of data adequacy for third countries involves a more stringent examination of how national security data is dealt with.

I say candidly to those on the Treasury Bench that if they want their Brexit negotiations to proceed as smoothly as internal Tory party politics allows, and to secure the data adequacy agreement that British business desperately needs, they will have to drop that immigration exemption—not water it down, not caveat it, but drop it.

Moreover, the exemption is insulting to freedom, the rule of law and access to justice. What it means, as others have said, is that an individual cannot know why he or she has had their case refused by the Home Office. The Home Office will be under no duty at all to disclose the information in a person’s file and the information used to make the decision. That is an affront to natural justice. In any dispute about how a case has been administered, it is surely self-evident that officials should have to provide that information.

To help Government Back Benchers who care about the rule of law even more, I should say that this affront could affect a British citizen. The administrative mistake might well be that someone has incorrectly been considered not to be British. In the many briefings that we have been given for this debate, there is example after example of British citizens being denied justice, with their very nationality being denied. Only a subject access request by an individual’s lawyer can end up revealing such basic errors of the Home Office.

Let us face it: the Home Office holds the prize for the largest number of mistakes made, week in, week out, by any Government Department. To take just one example, the Home Office has a shocking 10% error rate on immigration status checks alone. The Conservative party may be happy to take away access to justice and the rule of law from British citizens, but I am not.

Let us look at the impact on fairness. The best way to illustrate how deeply unfair the immigration exemption would be is with a few examples—real life examples, which is to say real people. Let me take some examples from the Law Society brief. It takes the case of Z, a failed asylum seeker attempting to reopen his case.

“The Home Office refused to reopen the case, saying that he had previously left the UK voluntarily and had received a resettlement grant from the Home Office. The SAR revealed that a third person had assumed his identity, and had applied for and secured voluntary return and the grant had subsequently been removed. The file further revealed that there was no cross-checking of signatures, photographs, or fingerprints on the Voluntary Assisted Returns scheme.”

This would have had serious consequences for the individual had the subject access request not revealed the identity theft, but, of course, under this immigration exemption there will be no such right to make that request.​
We have talked about issues around domestic violence. We have heard the example of a woman applicant, the victim of domestic violence, who had no knowledge of the immigration applications made for her because her husband had all the papers. A subject access request would be her only path to sorting out her immigration status.

There are many examples showing how unfairly this will work in practice. Another example of Home Office mistakes on identity is the case of a nurse who had been working in the NHS and living lawfully in the UK for many years, but whose application to naturalise as a British citizen was denied because of her alleged poor immigration history. The brief says:

“A SAR was made and it became clear that the Home Office had mixed her up with another Nigerian woman with a slightly similar name and a poor immigration history. Following the SAR, she was able to challenge the Home Office.”

Under this Bill, she would not have been able to do that, and the NHS would have lost a diligent trained nurse.

There are so many other such examples, Madam Deputy Speaker, that I could detain the House longer than you would feel was sensible, so I will not read them out. None the less, I say to Ministers that they exist. If they bothered to read them—I urge them to do so—they would see that these are real people. If this legislation goes through with the immigration exemption, the Ministers on the Front Bench would be responsible for ruining the lives of hundreds, if not thousands, of innocent people, because they would have given the Home Office—the Executive—too much power, which means that it could not be held to account.

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