New powers may allow access without consent
The Data Protection Bill could interfere with legal professional privilege and stop legitimate legal challenges against Home Office immigration decisions, the Bar Council has warned.
The Bar set out the risks in two briefings to MPs preparing to debate the Bill this week at its Second Reading.
First, the Bill imposes a duty on lawyers to give the Information Commissioner’s Office (ICO) access to legally privileged material, thus undermining the centuries-old right to confidential legal advice. Lawyers will be obliged to notify clients of this risk.
As well as the risk of onward disclosure by the ICO's staff, there would be a conflict between the lawyer’s professional and legal obligations. Moreover, the Bill could have a chilling effect on client communications, and risks placing UK legal services at a disadvantage to their international competitors.
‘The irony is that these powers are designed to give citizens more control and protection over how their data are used, but the effect will be to allow access to their legally privileged communications without their consent,’ Chair of the Bar Andrew Walker QC said.
Second, the Bill gives the Home Office an ‘immigration-control exemption’—allowing it, for immigration-control purposes, to deny individuals access to their personal data.
Walker said: ‘Making Subject Access Requests is often the only way for people who are in the immigration system to find out crucial information relevant to their immigration status, and even to find out the very basis for adverse decisions that the Home Office has already made about them.
‘This information is vital for anyone who is challenging their detention or a deportation notice, or for those making applications for asylum or to remain in the UK. Blocking access to this information will insulate the Home Office from legitimate challenges to the legality of its decision-making.’
He said the Home Office’s decision-making record was ‘notoriously poor’, and that Lord Rogers told Parliament last month that it had lost about 250,000 appeals in the ten years to 2015.
