Ministers have defended their proposal to exempt the Home Office from a key part of the data protection regime despite concerns raised by the legal profession. Culture secretary Matt Hancock MP told the House of Commons yesterday that exemptions from subject access requests are necessary to ensure that ’a minority of individuals cannot abuse data protection law with the sole intent of undermining immigration controls’.
Hancock was opening the second reading in the Commons of the Data Protection Bill, which will implement and extend the General Data Protection Regulation (GDPR), which comes into force under EU law on 25 May. The Bar Council is among several legal bodies to warn that a provision allowing the Home Office to refuse to answer requests for data about an individual in immigration cases could put lives at risk.
Stressing that the government’s promise to empower people to take control of their data applied to UK citizens, Hancock said the immigration exclusion was legally sound. ’We firmly believe not only that it is important to ensure that we can control our borders through immigration controls, but that this is provided for in the GDPR,’ he said.
He was replying to Scottish Nationalist Joanna Cherry QC MP who quoted independent legal opinion as stating that the exemption in the bill does not reflect the stated permissible exemptions under the GDPR. ’This broad-ranging exemption will impact substantially on human rights, and it may also impact on an adequacy decision from the European Commission,’ she said.
’Of course, there are always legal opinions about everything,’ Hancock replied, ’and our legal opinion is that that is consistent—that is the basis on which we are proceeding.’
He reminded MPs that the bill provides new data rights, including a stronger right to be forgotten, and creates an offence of unlawful re-identification of de-identified personal data. ’With greater control, greater transparency and greater security for our data, the bill will help to give us a statute book that is fit for the digital age as we leave the EU.’
The most heated debate however surrounded an amendment introduced in the Lords stage of the legislation, to enact Section 40 of the Crime and Courts Act to encourage newspapers to join government-approved regulators. The government last week announced that it would seek to repeal the section, which could make unregulated publishers liable for the costs of unsuccessful legal actions.
Labour’s Andy Slaughter MP said that such costs shifting ’is done not punitively, but to encourage, and to ensure that justice functions effectively in everyone’s interests. In this case, it works by giving newspapers the option of signing up to an independent regulator that offers compulsory arbitration, or meeting the court costs of reasonable claims made against them’.
However Conservative Jacob Rees-Mogg MP said: ’We know from our history that one of the tactics of dictatorial regimes is to have to punitive damages levied on newspapers that do not do what they want—a system whereby if a paper loses a libel action, it is effectively closed down. Why do such regimes do that? They do it so that they can have the pretence of freedom of speech, but with the reality of control.’
He warned that incidents like the persecution of 18th century radical John Wilkes. ’We see that being restored … with the outrageous, monstrous idea that if a paper prints something that is entirely accurate - every dot and comma is true - but has not bended the knee to officialdom, the fine will be to pay its own costs and the costs of the party about whom it has told the truth.’
Opposition members who vote for the amendment ’are voting to support [former Formula 1 boss] Max Mosley, his abhorrent views and his money,’ Rees-Mogg said. ’Those of us who believe in freedom will vote them down.’
The bill was passed to committee stage, which it is due to complete by 27 March.