Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division bells are rung and resume after 10 minutes.
UNCLOS: The Law of the Sea in the 21st Century (International Relations and Defence Committee Report)
(1 year, 5 months ago)
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Baroness Anelay of St Johns
That the Grand Committee takes note of the Report from the International Relations and Defence Committee UNCLOS: the law of the sea in the 21st century (2nd Report, Session 2021–22, HL Paper 159).
Baroness Anelay of St Johns (Con)
My Lords, I am pleased to introduce our report UNCLOS: the Law of the Sea in the 21st Century, which was published on 1 March. It is almost 40 years to the day since the United Nations Convention on the Law of the Sea was adopted by the UN General Assembly. The convention established for the first time a comprehensive international framework for the governance of the world’s seas and oceans. Our committee decided to take that anniversary as an opportunity to examine whether UNCLOS remains fit for purpose in the light of 21st-century challenges.
I thank the members of the International Relations and Defence Committee; our specialist adviser, Dr Reece Lewis; and the committee staff for their contributions to the report. I also declare an unpaid interest as chair of trustees of the United Nations Association UK.
The adoption of UNCLOS in December 1982 was the outcome of more than 25 years of international negotiations and represented a major milestone in international law. The clear consensus among those who gave evidence to us was that the convention has been a success in regulating maritime relations between states. UNCLOS has delivered significant benefits for the UK and for the wider international community. These benefits include enshrining the principle of freedom of navigation; establishing standardised rules for states’ claims to maritime zones; creating a framework for co-operation on issues such as marine resource management, maritime security and environmental protection; and providing stable mechanisms for dispute settlement. Our inquiry concluded that many of the core rules of UNCLOS remain important in today’s world. Moreover, it is in the UK’s interests to ensure that they continue to be upheld.
In recent years, however, challenge has come from China to some of the fundamental tenets of the UNCLOS system by making exorbitant claims to territorial jurisdiction over waters in the South China Sea. That impacts on other states’ rights to freedom of navigation. It is vital that the Government continue to work with international partners to challenge such actions and ensure that the rules of international law are observed.
Despite the UNCLOS success story, there are weaknesses in the current legal regime. The enforcement of the rules against ships on the high seas is inconsistent. There are gaps in regulation, including on human rights and emerging technologies such as maritime autonomous vehicles. The rules of UNCLOS have not adapted to the pace of climate and environmental degradation. The international community, and of course the UK, must find ways to address these challenges. Today I shall focus on just three of those challenges: enforcement on the high seas, human rights at sea, and climate and the environment.
Under international law, states are responsible for enforcing the law within their own territories, but large swathes of the world’s oceans, known as the high seas, are beyond the territorial jurisdiction of any state. UNCLOS seeks to address the risk of an enforcement vacuum over ships on the high seas through the principle of “flag state jurisdiction”. Under that principle, the state in which a ship is registered is required to “effectively exercise” its jurisdiction over its ships and their crew, including in relation to maritime safety and security and labour conditions on board. UNCLOS also requires that ships should have a genuine link with the state of registration. That facilitates better enforcement.
In practice, however, a very large proportion of the world’s shipping is flagged to open registries, otherwise known as flags of convenience. Open registries have lax conditions for registration and a limited capacity to take enforcement action against non-compliant vessels. The evidence to our inquiry demonstrated that this poses a significant challenge for maritime security and wider law enforcement at sea.
The international community made an attempt to tighten the rules in 1986, through the UN Convention on Conditions for Registration of Ships, but this treaty has never entered into force due to a lack of acceptance by states, including the United Kingdom. In response to our report, the Government acknowledged the risks posed by open registries, but they did not engage fully with our recommendations initially. In particular, they did not clearly explain why they had not joined the 1986 convention. However, following further correspondence with our committee, the Government have now committed to engaging with the International Maritime Organization and to taking a leading role in reviewing the 1986 convention to bring it up to date as a means of reinforcing the need for a genuine link between ships and their registries. I welcome this commitment to improving flag state enforcement and look forward to receiving further updates from the Government as these discussions progress.
The protection of human rights at sea is a real concern, which UNCLOS does not address adequately. Human trafficking, modern slavery and forced labour, including in the context of illegal, unregulated and unreported fishing activity, all present pressing human rights challenges at sea. There are barriers to effective protection caused by conflicts of jurisdiction over vessels in different maritime zones and a lack of effective enforcement through flag state jurisdiction on the high seas. As a result, remedies for human rights abuses are often unclear or unavailable.
It is right that people at sea should benefit from the protection of human rights law just as much as those on land. However, the Government appear to take a narrow view of human rights protection at sea: in their evidence to our inquiry and responses to our report, they have focused mainly on labour rights, which are important but not the only matter of concern.
Our committee called on the Government to adopt a clear and unequivocal position on the application of human rights law at sea. Regrettably, they have not done so. In his latest reply to our committee, my noble friend the Minister acknowledged that human rights obligations
“are capable of applying … at sea … provided that there is jurisdiction”.
But this suggests that the Government take the view that there are circumstances in which human rights do not apply. I invite my noble friend the Minister to explain his position further today and indicate what the Government’s current plans are to work with international partners to improve the protection of human rights at sea. I believe, and the committee agrees, that the UK should set an example internationally in this regard.
We asked the Government to explain what remedies are available in the UK for victims of human rights abuses at sea. The Government’s reply refers only to the possibility of submitting a complaint to a Maritime and Coastguard Agency surveyor—and yet the primary role of such persons is ensuring the safety and seaworthiness of vessels. It is also not clear whether MCA surveyors have the power to receive complaints other than in relation to labour rights. I therefore invite my noble friend the Minister to explain further whether the remedies set out are sufficient to allow access to justice in the UK for victims of human rights abuses at sea.
Climate and the oceans are vital to us; they are inextricably linked. The oceans play a unique role in climate regulation by absorbing carbon emissions. At the same time, climate change has a significant impact on marine ecosystems. While UNCLOS imposes obligations on states regarding environmental protection, it does not directly address climate change. Until recently, international efforts to tackle climate change through the United Nations Framework Convention on Climate Change did not give the oceans the attention they deserve. Greater co-ordination is required between UNCLOS and the UNFCCC processes to ensure that the effects of climate change on the oceans are fully covered.
We will all be aware that a welcome step forward on this was taken last year at COP 26 in Glasgow. I invite my noble friend the Minister to report in his reply on any further progress made in this regard at this year’s COP 27, in Sharm el-Sheikh earlier this month. I would also be grateful if my noble friend could update Members today on whether any progress was made earlier this month at the council meeting of the International Seabed Authority on negotiations to agree exploitation regulations with respect to deep sea mining. My noble friend will be aware that some Members of the Committee have taken a significant interest in these matters over the last few years.
UNCLOS is a living treaty. It provides a framework for states to develop the law over time. Our report has shown that there are areas where further development is needed to address pressing challenges. As a major maritime power, the UK is in strong position to contribute to this. I hope that the Government will accept our challenge to step up to their leadership role in reforming or supplementing UNCLOS rules in these areas, as well as standing up for the fundamental principles of maritime law which have made UNCLOS a success over the past 40 years. I beg to move.
Baroness Goudie (Lab)
My Lords, UNCLOS: the Law of the Sea in the 21st Century is good, as far as it goes. But 40 years on, there are gaps and enforcement is extremely patchy. Human rights abuses at sea, biodiversity law and environmental degradation are inadequately addressed. I would like to draw particular attention to chapter 4 of the excellent report, on the impacts of climate change, including the implications of rising sea levels on low-lying states and the displacement of people leading to increases in refugees and migration. I also draw particular attention to chapter 5, on human rights and labour protection at sea.
International human rights laws apply to those at sea as well as those on land, but UNCLOS has little to say about human rights. The barriers to application at sea need to be addressed. It is vital to tackle human trafficking and modern slavery, enforced labour and excessive working conditions—which we know are happening as we sit here today—and to avoid flags of convenience providing many loopholes.
Another vital issue is migration at sea by vulnerable groups—including asylum seekers and refugees, who are often in insecure vessels—and rendering assistance to those in distress at sea. This must not be sidelined by immigration and other policies. These are human beings who we must take care of and who are not there for their own purposes. They are there because the situation has made this happen; no one would want to put their children and themselves in these difficulties. I question whether provisions in the Nationality and Borders Act are compliant with our duties in UNCLOS, in particular our international responsibilities under Article 98. Those suffering human rights abuses at sea must have sufficient access to timely and effective justice remedies. In particular, contracted armed security personnel must be regulated. The regulations around this are extremely weak; we really must look at that, not only in this country but in other countries, and join forces. Piecemeal attempts at solutions are not good enough. The UK Government must respond robustly to the report and do much better on human rights violations at sea reports.
Lord Teverson (LD)
My Lords, I should declare a non-financial interest as a patron of the British charity, Human Rights at Sea.
When I first came into the Grand Committee, I wanted to make sure that I had the Government’s most up-to-date response. I have to tell the Minister that I was hugely disappointed by it, until I read the title, which was Technology Rules? The Advent of New Technologies in the Justice System—I had picked up the wrong one. I now have the most recent response, I hope, and will refer to it later.
I was delighted that the committee went into UNCLOS. It is its 40th anniversary and, to me, it is something that all the signatories can be proud of. I see it as the law of 70% of the planet’s surface—some of the most important, and indeed some of the most unknown and unresearched, parts of the planet. It has its weaknesses, gaps and challenges, and I will come to each of those.
It is also under threat; this is not an area I will talk about but, in terms of the South China Sea, there is a direct challenge to a ruling under UNCLOS. The Philippines brought that case but has backed off; China has totally rejected it and did not see that jurisdiction as being valid. That is a part of the autocratic world trying to undo the international conventions that have kept the planet at peace and sane over the last 50 years and more. So it is under threat.
One of the main, negative conclusions that the committee came to was that the last thing we should do is renegotiate UNCLOS. We should find ways of improving it and making it the living treaty that was described by many of our witnesses, but we should not undo it. It is a keystone of the rule of law over our oceans.
I follow on from the thoughts of the noble Baroness, Lady Anelay, our chair, on flags of convenience. To me, this is the one area where, to use the wrong analogy, we drive a horse and coaches through the way that UNCLOS is supposed to work. The table shows exactly that Panama has gross tonnage of vessels of about a quarter of a million under its flag, the US has only 10 million, and the UK 8.7 million—in 22nd position. Clearly, everything is out of kilter. We are trying to get a balance: historically, the freedom of the high seas has been very important and something which we would not want to move on. The trouble is that it is abused and there is widespread immunity on the oceans through flags of convenience.
I was delighted to hear that we are now going to sign the 1986 UN Convention on Conditions for Registration of Ships. This seems one of the areas in which the UK should be leading internationally. The original government response, as I remember it in the committee, was that there was not a lot of interest from other nations, so why do it? That raises the question that this must be unsatisfactory to the vast majority of nations—though perhaps not Panama, the Marshall Islands and Malta. But to the rest of us it is important, and something through which we should be trying to get an economic link between flag and vessel. Until we do that, there will be a rather big hole in jurisdiction and how this charter actually works.
Of course, the International Maritime Organization is within a mile of this building. Surely, just due to the fact that it is in that location, we should be able to provide extra leverage to make sure that other nations come alongside us, and we should show that leadership.
I would be interested to understand from the Minister how we can improve port state control and make sure that those measures are more effective, as well as territorial waters. I would not like to stop the right of innocent passage through territorial waters but there needs to be more national responsibility for who goes through those waters.
Human rights is the area that is very much missing, and I completely agree with the comments of the noble Baroness, Lady Goudie, on this. It is not just about human rights themselves but the fact that, where there are these abuses—and all enforcement is difficult at sea—it moves on to other abuses and other breaches of international law. Whether it be illegal fisheries, people trafficking or drug trafficking, all this will continue if we do not take a much stronger approach to the human rights side of UNCLOS and the way that we enforce and legislate with regard to the high seas.
Never mind all those examples, I thought we had a good example with the cruise ship in the Mediterranean, outside of territorial waters. There was an assault on a passenger by a member of the crew; the national was Spanish, and the Spanish courts were not able to do anything, and there was an Italian connection, but Italy was not able to do anything either. The flag state, Panama, was just not interested. There is no recourse, even for that type of person, let alone for those in enslavement on fishing vessels.
I will say just one last thing on human rights. As I said, one of my areas is as a patron of Human Rights at Sea, which is a British charity. It is pushing ahead here with a document called the Geneva Declaration on Human Rights at Sea. This has been taken up by New Zealand and other nations but has had indifference, to a degree, from the United Kingdom—though not entirely; we had a very positive meeting with one of the Transport Ministers under the Boris Johnson Administration, but nothing has happened there. Can the Minister look at this further, to see how we can help push that declaration to extend human rights under international law?
Lastly, I will talk briefly about seabed minerals. At COP 27, President Macron said, very abruptly, “We aren’t going to do sea mining—I’m going to try to stop it altogether.” Similar declarations have been made by New Zealand, Chile and one or two other countries, including Panama and Costa Rica. But the latest government response says—not unreasonably, in a way—that the UK is looking at
“the Regulatory framework of the ISA, with a view to adopting regulations in July 2023 in accordance with the ISA’s road map for their elaboration.”
After that, there are a lot of caveats about what we are pushing for as a nation within those negotiations.
My view is very clear on this. We already have enough minerals and despoliation on land. If we believe in natural capital, and particularly in circular economies, we should, not just as a nation but as an international community, make sure that we get those minerals through a circular economy and through the exploitation that we already have, not in new domains under the sea. Can the Minister say whether the United Kingdom will back those other nations in saying that, at the end of the day, enough is enough, and we have despoiled our terrestrial domain enough? Let us not let that happen to the seabed, as it inevitably would, whatever regulations we have as regards that future convention.
Baroness Rawlings (Con)
My Lords, it is always a pleasure to follow the erudite speeches of the noble Lord, Lord Teverson. Our chairman, my noble friend Lady Anelay, and her team chose UNCLOS—an important but, dare I say it, relatively unknown subject regarding the law of the sea. I am most grateful to have served on her committee for nearly three years and for our having the opportunity to debate the UNCLOS report, especially leading up to the conclusion of the 40th anniversary conference on 10 December.
“The seas covering the globe, and particularly those around our coasts, have always been a fascination to many, since to a great extent they hold the key to the state of our economy, our physical health and our safety, to mention but a few of the areas affected”.—[Official Report, 19/5/1976; col. 1431.]
I quote this from the maiden speech of Earl Strathmore and Kinghorne, during a former debate on the subject, here in the Lords, on 19 May 1976. I would like to highlight three security points emanating from our report that I believe could give cause for concern and to add to what some speakers have already mentioned. The three points I want to talk about are climate change, the South China Sea, including the Spratly Islands, and cable security.
First, on climate change, which has already been mentioned, witnesses identified the Arctic as a region where climate change may have serious and significant maritime security implications. Paragraph 113 of the report says:
“Climate change is likely to lead to additional maritime security challenges, particularly in the Arctic. We ask that in its response to this report the Government provides us with information about how it is monitoring security-related developments in the Arctic”.
Secondly, on the South China Sea, I shall not go into all the details, which have been well rehearsed. However, the challenges come in two main forms: long-standing claims, which are at odds with the principles of the treaty, and new claims by rising powers. These are both exemplified by China’s actions in the South China Sea. Evidence suggests it is highly unlikely that China will decide to change its policy of claiming exclusive jurisdiction over the majority of the South China Sea but that it will continue to reject the principles of freedom of navigation and freedom of innocent passage, as outlined by UNCLOS. China’s stance poses a challenge to international law. The UK Government should continue to work with their partners and allies to protect and preserve the principles of freedom of navigation, not only in the South China Sea but in every region where it is challenged. I urge the Government to keep an eye on this area to make certain there is no trouble regarding our navigation rights, which, as the Minister knows, are so vital.
Thirdly, on subsea cable security, these cables are a critical element of the UK’s, and the world’s, communications infrastructure. The report says that
“witnesses added that there is also a ‘lack of information sharing on cable breaks’ which ‘poses a threat to the functioning and security of the global subsea cable system and global connectivity’”.
Although UNCLOS places obligations on states to allow for the laying and repairing of such cables, these are not always followed in practice. It is crucial that the laws are clear where responsibilities lie for the maintenance and protection of subsea cables. The international regulatory regime is unclear and this must change, considering their significance. The Government should work with partners and others to address this. The UK should work to improve domestic legislation for cables in the UK’s territorial waters, as well as working with partners to strengthen the international regulatory regime. I know HMG take all these matters very seriously—and so they should. We were told that these cables were well protected, but I keep reading disturbing reports.
People in all walks of life, not only those directly concerned, are now beginning to realise the importance that should be attached to the UN Convention on the Law of the Sea. This report is long and complex, covering in detail many different security points. I fear that it may not be widely read cover to cover, so I want to ensure that the Minister takes these three vital security points back to his department: the effects of climate change, the freedom of navigation in the South China Sea and the protection of undersea cables.
Lord Stirrup (CB)
My Lords, this report makes it clear that the United Nations Convention on the Law of the Sea, and crucially the instruments that fall within its overarching framework, have helped to bring a welcome degree of certainty to the governance of the world’s waters, which, of course, cover the larger portion of the planet’s surface. It also underscores the ongoing importance of the convention and outlines how it continues to be crucial in addressing a range of important and difficult new maritime issues.
However, at the moment, UNCLOS does not answer all questions, nor does it provide a resolution to all issues. The report highlights the current gaps and challenges that are likely to emerge in the years ahead. As a maritime nation that relies on predictable and equitable rules at sea, it is important that the UK continues to take a leading role in the maintenance and development of UNCLOS and its subsidiary instruments.
At the same time, we must recognise that, no matter what we do, there will be issues that UNCLOS will not—or will not be allowed to—resolve. This is not an excuse for slackening our efforts to strengthen maritime governance, but it is important to recognise the limits of what is likely to be achievable and to think about how we manage the consequent challenges to international order. That is what I will focus on today.
The principal difficulty characterises international law more generally: there is no global government, so international law is essentially what the most powerful members of the international community decide it should be. We should not, therefore, be surprised that UNCLOS relies on consensus. This of course limits its scope when there is disagreement among the major players in the system, although we should note that, where there is consensus, we tend to get a high degree of compliance. However, compliance can also be a significant challenge. Just as there is no global government, there is no global enforcement mechanism that can be brought to bear on those who contravene international agreements. China’s repudiation of the 2016 UNCLOS ruling in favour of the Philippines regarding activities in the South China Sea—already mentioned several times this afternoon—clearly demonstrates the limits of the system.
Today I will highlight two challenges where in future UNCLOS may find itself constrained or even neutered. The first concerns the crucial issue of resource exploitation. The report covers the difficulties in regulating the development of deep seabed mining and fisheries management, but these will be greatly exacerbated by another factor, which is also discussed in the report and has been mentioned this afternoon: climate change.
The availability of an ice-free northern sea route from the east to the west will dramatically increase the commercial viability of maritime exploitation of the Atlantic by powers such as China, and this will have serious implications for fisheries. China’s demand for fish far outstrips its current supplies. Once its trawlers can access the Atlantic, we are likely to face a huge assault on fish stocks in that region. When I say “trawlers”, I am not talking about the sort of vessels that we can see sailing in and out of Brixham harbour; these are ships that are at sea for six months at a time and operate on an industrial scale.
We are likely to see a similar assault on non-living seabed resources. Despite the recent declarations made at COP 27, to which the noble Lord, Lord Teverson, referred, I suspect that the availability of strategic minerals will be like a magnet to resource-hungry nations, and the scale of China’s requirements will drive it to exploit the seabed wherever it can. Indeed, its activities in this regard have more than once been referred to as ocean rape. The International Seabed Authority will no doubt do its utmost to regulate such exploitation, but we have seen with the South China Sea how the PRC reacts to rulings that run counter to what it regards as its national interests. While we should continue to support such international governance mechanisms, we should also prepare now for an ice-free, Arctic route and the challenges this will bring. We should discuss with partner nations how together we might respond to those challenges in cases where international agreements prove powerless.
The other problem I want to highlight, already referred to by the noble Baroness, Lady Rawlings, is the security of subsea cables. The committee’s report emphasises their importance. Around 95% to 97% of global communications depend on them, and around 25% of the UK’s electricity is delivered through such cables. UNCLOS contains important provisions for their laying, maintenance and repair, but there are no comprehensive rules protecting maritime cables.
The report highlights areas where the UK should work to improve the regulatory environment in this regard, which of course is important. Better domestic legislation and closer co-operation with the International Cable Protection Committee are necessary steps in this regard, but, as with resources, we must recognise the likely limits of international law.
Subsea cables are crucial to our security and prosperity, but at the same time they are vulnerable. While accidental anchoring, fishing and natural disasters are the main threats to those cables in normal times, they are also obvious targets for hostile military action or, in future, for terrorist attack. UNCLOS will be of no help in the face of such risks. We need to develop comprehensive plans for the defence of subsea cables, but we also need to recognise that no defence can ever be perfect. This underlines the importance of developing sufficient resilience to be able to cope with successful attacks on those crucial assets. But that, as they say, is a whole other story.
In essence, the committee’s report confirms that UNCLOS, along with its subsidiary instruments, has on the whole been a huge success story, and it goes on to argue persuasively that the UK should work to develop the convention’s usefulness in the face of future challenges. I say amen to that, but, as I have argued, we must also be aware of the limitations that are inherent in any aspect of international law, UNCLOS not least, and prepare our responses to the inevitable and serious challenges that will face us as a consequence.
Baroness Fall (Con)
Last year, our committee decided to put together its considerable brain power and powers of persuasion to seek the wisdom either of experts on the law of the sea or of those who have had to navigate it, such as the noble and gallant Lord, Lord Stirrup, and address whether it was fit for the future. I realise that, to some, this might seem a rather niche topic, especially at a time of geopolitical turmoil—I myself had to google UNCLOS on my lap in the committee, hoping that the noble and gallant Lord did not notice––but it is precisely because so much is in flux that we must seek to protect core elements of the multinational system, the rock on which global peace rests.
During our witness sessions, I was once again struck by what a great privilege it is to work among colleagues in this House. I pay tribute to the secretariat of the committee, which is so dedicated and outstanding, and to the amazing tenure as chair of the noble Baroness, Lady Anelay, which is drawing to a close.
Today I shall focus my remarks on how the rapid changes and complexities of today’s world contrive to add pressure to, and potentially render pointless, even the most functional elements of our multinational rules-based system. UNCLOS was a fine piece of work when it was put together 40 years ago, with some 168 signatories, to forge some rules upon the unrulable—namely, the world’s oceans and seas. It was a considerable achievement, and still is. First and foremost, it was designed to produce boundaries between states and set out their rights to the waterways and resources around them, along with a dispute mechanism to argue these things out. The fact that there is not a mountain of disputes to date is a testimony to the treaty’s success.
However, in reality, out there on the high seas things look a bit less functional. We are told that the seas are lightly ruled by codes around flag states, but that practice has been weakened by the overuse of flags of convenience and a lack of enforcement in recent years. In other words, it is more of a free-for-all out there than it looks. What were once gaps in UNCLOS risk becoming gaping holes of lawlessness and potential human misery and exploitation, as well as creating security risks.
Challenges that will quickly turn to threats if we do not address them now include climate change, new technologies, human rights, security of critical infrastructure and the protection of marine environments, to name just a few concerns. Some of those fall outside the existing UNCLOS, and you might say they were not the point of UNCLOS in the first place. However, they should be the point of it now. I shall pick up a few of them in turn.
The first is the impact of climate change, an immediate and devastating effect of which is rising sea levels that threaten to destabilise the intricate set of established entitlements for all but a few landlocked states. We are talking here about national boundaries, and in some cases nations’ very existence. Our world’s maps are being redrawn and the populations who once inhabited those areas may be forced to seek new homes, no doubt many taking to the sea to do so.
That poses many challenges, the first of which is around existing boundaries. Do we hold firm or reassess? In our report, we recommended that “baselines should remain”, which I believe must be correct, at least for now. But for how long is that achievable? That depends on how fast and how defining the changes in sea level become, and only nature has the answer to that.
What of those who are forced on to the sea in search of a new home? That takes me to my second area of concern: human rights at sea, or the lack of them. I shall start with those who labour at sea. We learned that, although they are covered by international human rights law, it is extremely difficult to apply in practice, creating a grey area that allows for exploitation. The problem is likely to worsen with the emergence of a global labour force at sea, mining the seabed or tending infrastructure, who may have little or no rights, living and working in a type of seabound modern slavery. We must address this now. Governments recognise, and therefore must be made to enforce, international human rights at sea before things worsen.
On the issue of migration, we know the challenges all too well as we face our own devastating small-boats crisis. Imagine a world where the high seas are full of people seeking refuge, vulnerable to trafficking and neglect and in mortal danger. Nation states struggling with security issues and domestic political pressures seem to have difficulty finding solutions to this issue. These are complex global issues which require multinational solutions and political will to resolve.
Lastly, I turn to a set of issues that loosely fit around security. In an age of increasingly limited resources and new technologies, the deep sea poses both opportunities and new challenges. We have talked of the deep seabed providing new resources, but that needs to be managed so we do not have a free-for-all. We have also talked about subsea cables, which are highly vulnerable to attack, as we saw just recently with Nord Stream.
There are national security issues, as others have mentioned, with navigation and rights of passage in relation to rising sea levels. We see that emerging in the Arctic, and we are aware of the very real issue in the South China Sea.
It is up to all of to protect our precious maritime environments, but under whose auspices is that to be achieved? I commend the Blue Belt Programme, which has been a great success, but we should be doing way more.
We have always prided ourselves on being a great maritime power with a strong global footprint. We must leverage that now as a global convener, to address the important issues around national security, human rights, asylum and nationhood as well as the sustainability of our oceans and seas. The challenges of a rapidly changing geopolitical landscape means that UNCLOS is likely to be irrelevant to the challenges that face us unless we act. We must bang heads together, literally, and think holistically to seek global solutions. We have found that, where there is political will to solve a problem, there is inevitably a way.
Viscount Waverley (CB)
My Lords, I identify with much of what the noble and gallant Lord said, and I congratulate the noble Baroness, Lady Anelay, and her committee. I should reflect on the committee’s first conclusion that
“Enforcement is a weakness of international law”,
which I will build into my principal remarks on Russia, China and NATO, including the United States, on matters Arctic.
I will refer to practical challenges on the excessive claiming of maritime zones, given legal problems with UNCLOS permitting states to claim or designate exclusive economic zones—EEZ status—around uninhabited islands and rocks, thus extending territorial rights. Notwithstanding the Philippines-China case study, and China building rocky outcroppings into major installations, with airfields in the Scarborough Shoal, this establishes a quandary on how international law will adapt when islands must be above high tide and when the sea level rises through climate change. Does the state lose EEZ status if an island is submerged or is the reality, in practice, that a ruling against yields little or no practical effects, with limited arbitration processes to adjudicate on the question of propriety on “that rock”, in terms of claiming it to be an exclusive economic zone? This requires examination.
More generally, is it the case that domestic law must incorporate international law to take effect and so have legitimacy? How does the United Kingdom view international law and are all NATO countries aligned? Do China and Russia recognise the provisions of UNCLOS?
In this challenging year of global power competition, this report on the law of the sea correctly surmises that the Arctic shipping route along Russia’s northern coast—commonly referred to as the northern sea route, or NSR—has long-term security implications. President Putin attaches enormous significance to the NSR and the economic development of the Russian Arctic. As a petrostate, many of Russia’s remaining oil and gas prospects lie in the Arctic, along with significant minerals and other resources. For the Kremlin, energy is bound up with Russian national security and is a principal means of projecting influence abroad; it is deemed to have become strategic in the post-2020 framework, as global competition for resources and markets intensifies.
Putin has also ordered that shipping along the NSR reach 80 million tonnes by 2024, from 30.5 million tonnes in 2019. If fully realised, the vision of the Russian Arctic would be a string of resource hubs producing oil, gas, coal and minerals, linked by a vibrant international shipping route that could take resources west to Europe or east to Asia, as the geopolitical and economic winds blow. Russia has formally designated the waterway that runs from the Kara Sea in the west to the Bering Sea in the east. Along the way, the NSR runs through several straits separating the Russian mainland from adjacent islands—Novaya Zemlya, Severnaya Zemlya and the Novosibirsk islands. The Soviet Union drew straight maritime baselines around these archipelagos, enclosing them and declaring the adjacent straits to be internal waters; in making this an internal waters designation, the Soviet Union relied on UNCLOS language on “historic title”.
Here is the difficulty: Arctic waterways have not historically been used for international passage, given their frozen condition. This legal argument is therefore time-sensitive, as navigation is increasingly practicable. The Soviet Union also pointed to UNCLOS Article 234, which grants coastal states special abilities to manage ship traffic in ice-cold waters—another legal base that may be eroding in the Arctic. Here and now are important, but it is the potential quandaries 10 years down the road that make long-term policy decision-making—including on considerations of access to Arctic natural resources, be they fisheries, mining, or oil and gas reserves—essential and political.
The Russian Arctic is already responsible for roughly one-quarter of Russian GDP and the importance of the region will only grow. Given this, the region is of core national importance to Russian leadership, and it is no surprise that the Russian military has been arming it.
Russia has military components in the Arctic—including longer-term play by China, to which I will refer in a moment—and security interests. It has established a military presence there. There is increased aeronautical traffic, including in recent years the installation and refurbishment of advanced radar systems, airfields, small bases and air force missile systems, and Russian strategic capabilities on the Kola Peninsula—the major concentration on the western side of the NSR—have advanced.
Then there is China’s increasingly ambitious current activity and plans in the Arctic. We should not lose sight of the fact that China was a related signatory as far back as 1925 but, not wishing to be left out, it has recently opened its first scientific research station in the Arctic, because of its economic value. This coincided with China’s first Arctic policy White Paper in 2018, outlining its polar silk road plan and defining China as a near-Arctic state.
Should China’s interests be viewed as an opportunity or a threat? It is important to understand the drivers behind its ramping up of activities in the region, particularly in the shaping of economic development, with the NSR opening a new sea lane with a seven-day sailing time from Shanghai to New York.
It is significant that the war in Ukraine has significantly depressed shipping along the NSR, in particular by foreign vessels, with China’s main shipping company, COSCO, sending zero vessels through the NSR in 2022. It is unclear to what extent China’s interests are a larger strategic play, and to what extent it is being fully transparent. It is clear that China intends to be involved in the governance of the Arctic, with the introduction of the new polar code.
It should be on record that China is interpreting the Arctic and South China Sea issues in different ways, with the core differentiator being sovereignty, and the Arctic being about access. China says that it wishes to enter into strategic and economic partnerships with Arctic and non-Arctic states in new ports and communication infrastructure, thus expanding its belt and road initiative. This has relevance when considering global supply chain issues.
What of the response and strategy by NATO, and particularly the United States, the Arctic Council and observers such as the United Kingdom in all this? Are we to abide by international laws and norms? The Arctic has always had a strategic relevance for NATO as the gateway to the north Atlantic, with the hosting of vital trade and communications links between North America and Europe, so ensuring that the Arctic remains free and open must surely be a priority. However, the United States contests the Soviet—now Russian—designation of the straits along the NSR as internal waters, so the question remains whether the US and UK should conduct a freedom of navigation operation in the Russian Arctic, as has emerged in recent years in conjunction with tensions with Russia.
There are, however, important legal and operational questions about the particulars of the NSR, and the prospect of a FONOP is questionable. An added wrinkle is presented by Canadian claims in the Northwest Passage, which closely mirror Russian claims in the NSR. The United States deems both sets of claims excessive. Therefore, Russia’s NSR presents a set of diplomatic challenges to policymakers from a freedom of navigation perspective. I am curious to hear from the Minister the thinking behind what rights non-Arctic stakeholders have—or will have.
If all that was not enough, the list of factors goes on, with the critical undefined climate considerations that could haunt the generations to come. As a whole, the Arctic region is warming faster than any other part of the globe. For example, the Norwegian islands of Svalbard have already warmed 3 degrees centigrade since 1979. The Barents Sea subregion is warming especially quickly, in both air and sea temperatures.
One practical impact of this warming is that the Northern Sea Route is now ice-free for a longer period each year. However, it is important to note that the NSR is frozen in the winter, and the spring and fall “shoulder seasons” are unpredictable. In 2021, more than 20 vessels in the NSR were trapped in ice when an early freeze-up took shippers by surprise.
What is the strategy on the development of deep-water ports, search and rescue issues and oil spills? How do the complexities of the mandatory provision for all ships to be escorted by Russian icebreakers play out? A crucial question is what the role and purpose of the Arctic Council moving forward will be. As and when the Arctic moves up, there will be a probability of more states wishing for recognised observer status, which may entail Chinese push-back. Could or should the council’s role be better defined—questioning the overall effectiveness of UNCLOS, with the need to strengthen it more generally?
Lord Collins of Highbury (Lab)
My Lords, I too thank the noble Baroness, Lady Anelay, for her introduction to this debate and her excellent chairmanship of the committee. This has been a really interesting debate. I suspect that we all started by thinking, “What do we know about international maritime law?”, but when we think about it, we have all had experience of it. United Nations conventions are a crucial part of the international rule of law. As the noble and gallant Lord, Lord Stirrup, said, it relies on countries taking responsibilities seriously for that to work.
Given the UK’s maritime history and our special relationship with the International Maritime Organization—as the noble Lord, Lord Teverson, reminded us, it is just across the river—we should be ambitious about the role we can play in shaping the law of the sea to reflect our values. As the noble Baroness said in her introduction, we have had UNCLOS for four decades, which has provided a stable framework for the governance of global waters. However, there are clear shortcomings to its relevance and application today.
We face new challenges and threats. Recent events in the Black Sea have shown how vital it is that, in an increasingly uncertain world, our seas are underpinned by international law and co-operation, rather than conflict. We have seen how grain ships to Africa can end the threat of starvation. It is vital that we focus on those broader issues. I want to emphasise that it is right that the Government’s Maritime 2050 strategy from January 2019 committed to monitoring contraventions of UNCLOS and to
“deter acts of aggression and mitigate increasing nationalist agendas by supporting rules-based norms”.
However, that is easier said than done.
As we have heard in this debate, China, for example, has taken increasingly aggressive steps to bolster its claims to the South China Sea and interfere with established trading routes. It has refused to participate in UNCLOS arbitration. I am pleased that the United Kingdom Government remain committed to UNCLOS and the International Maritime Organization, but we need more than warm words; they must provide the necessary resourcing and capabilities.
Given the recent introduction of sanctions against Russia, the Minister will know just how vital the role of the IMO is in sanctions enforcement. That role has been recently extended and expanded. Can the Minister explain how the department is working with the IMO as part of its development of sanctions?
UNCLOS and the IMO have also played an important role in the fight against piracy, including in the Strait of Hormuz, Gulf of Guinea, and the Gulf of Aden. The Government’s integrated review—which I know is being reviewed—pledged to contribute to wider maritime security, including tackling the kind of piracy I have just referred to.
I suspect that if my noble friend Lord West was here, he would be focusing on our ability and capability to keep to the commitments we have made on maritime security. We contribute almost 2,000 civilian seafarers on the Royal Fleet Auxiliary. I hope the Minister can tell us what assessment the Government have made of whether we are making a sufficient and appropriate contribution.
My contribution this afternoon will focus on the issue of human rights and workers’ rights. I must declare an interest in that I spent my working life with the Transport and General Workers’ Union. It was one of the biggest affiliates of the International Transport Workers’ Federation which, certainly for the whole time I worked for the union, was focused on how to enforce international rules and obligations on shippers. Action was taken by members of the International Transport Workers’ Federation to try to stop ships leaving port which did not comply with the rules. In recent times, we have seen the scandal of P&O Ferries sacking 800 ferry workers to replace them with agency workers, which highlights some of the poor regulation in the shipping industry for workers. I have had direct representation from organisations representing seafarers. I noticed that Nautilus International is engaged; the RMT has also raised issues, as has the ITF.
As we have heard in this debate, unfortunately, “innocent passage” is too often relied on by rogue employers to employ cheap migrant labour, even on routes that do not pass through international waters. This includes Dover-Calais, which is 21 miles, as we all know, and others that call at UK ports. UNCLOS should never be misinterpreted as the reason to exploit seafarers’ terms and conditions of employment.
I welcome what the noble Baroness said about the Government’s commitment to reviewing the 1986 convention. I want to focus on the ILO’s Maritime Labour Convention as well. In their response to the committee’s recommendation in paragraph 214 of the report, the Government say that they share
“the concerns of the Committee regarding … forced labour and other labour exploitation abuses of those working at sea.”
They say that they believe that
“the Maritime Labour Convention, 2006 and the ILO Work in Fishing Convention, 2007 (No. 188) provide an effective framework to identify such abuses through port State control”,
and they talk about how the Maritime and Coastguard Agency inspections under these conventions ensure that relevant enforcement agencies can address these issues. ILO 188 does not exclude small vessels; indeed, it explicitly
“applies to all fishers and all fishing vessels engaged in commercial fishing operations.”
Some more detailed provisions are aimed at larger vessels, but the general provisions apply to all. We have had representation from those unions about the exclusion of fishers.
The Government say that
“Members may, after consultation, exclude ‘limited categories of fishers or fishing vessels’ from the Convention where ‘special problems of a substantial nature’ would be caused by application of the Convention.”
However, the Government’s response does not give us any assessment of how that operates and how extensive it is. I hope that the Minister can assure us about that this afternoon and give some details about how those exemptions may apply. I have certainly had representations saying that we need to do more to protect fishers—particularly workers on platforms, which we have not addressed in detail today.
I want to pick up the point about climate change. I welcome the focus on that issue in the report. We now have an established international consensus that domestic and international shipping must decarbonise. The Clydebank declaration at COP 26 commits the UK and 19 other countries to developing green shipping corridors on international routes. That was further developed at COP 27 with the announcement of the agreement between the UK, the USA, Norway and the Netherlands over the development of decarbonised shipping lines. I hope that the Minister can give us an assessment today of whether UNCLOS and the IMO can support the implementation of that agreement and make sure that it reaches the targets it sets itself.
I very much welcome the report. It highlights how valuable our select committees are in focusing on issues that we would not necessarily see debated in the Chamber but are vital when it comes to our future security with regard to both defence and security and the issue of climate change, along with our obligations under the SDGs, which we need to focus on even more. It is an excellent report and I look forward to hearing the Minister’s response.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)
My Lords, I thank my noble friend Lady Anelay for tabling this debate and the committee for its excellent work. I understand that we may be interrupted by a Division. We will come back to whichever point I get cut off at, if that happens, but I will try to progress as much as I can before that.
A lot of questions have been asked and a lot of points made, all of which have been noted. I will do my best to provide as much of an answer as I can, but I hope noble Lords will be indulgent, given that to do so comprehensively would take us into the early hours. I will cover as much as I possibly can.
We welcome this inquiry, for all the reasons that have been acknowledged by the speakers in this debate. I thank all noble Lords for their consideration and their insightful contributions. This year, as has been noted, marks the 40th anniversary of the UN Convention of the Law of the Sea, so this is a timely debate as well as an important one. Throughout the inquiry, including in my evidence to the committee, I have explained how the convention has benefited the UK and the wider international community. I have also noted the challenges that exist in implementing it and the action that the UK is taking.
Because of the time allowed for the debate, I will not deal with all the committee’s conclusions and recommendations now, although I have done so through various bits of correspondence with the committee. I shall touch on some of the key points and ancillary points that have been raised in the debate. As has been acknowledged, UNCLOS is a major achievement of diplomacy and international law. It provides a detailed codification of the law of the sea. With 168 state parties, it has made a significant contribution to global peace, prosperity and security by providing a comprehensive framework for the governance of the ocean.
The UK has directly benefited in numerous ways, not least with regard to maritime boundaries with neighbouring state, both domestically and through our network of overseas territories. UNCLOS also provides a framework to co-operate with our neighbours on resource management, tackling crime and protecting the environment—all points that have been raised by numerous speakers in today’s debate.
UNCLOS freedoms have enabled us to conduct marine scientific research around the globe. Those freedoms also enable the transport, communications and energy connections between nations that underpin both the UK’s and the global economy. The UK is an active state party to UNCLOS. We are strongly represented on key bodies, including the International Maritime Organization, the International Seabed Authority, the Intergovernmental Oceanographic Commission and the International Hydrographic Organization. UNCLOS therefore provides a clear, comprehensive framework within which states are able to co-operate.
I want to look at some of the challenges that we and UNCLOS face. As the committee has recognised, attempting to renegotiate UNCLOS would—I will come back to these arguments in a few moments.
Lord Goldsmith of Richmond Park (Con)
As the committee recognised—a number of noble Lords have made the point as well—any attempt to renegotiate UNCLOS would not attract support from many states and would risk undoing the really delicate balance that has been struck in the existing text as well as many of the benefits we currently enjoy. Where matters require further legal rules, it has been shown that this can be achieved by negotiating supplementary implementing agreements to UNCLOS, or through additional agreements that rely on the framework provisions of UNCLOS.
A number of speakers, including my noble friend Lady Anelay, have raised a question that was in the committee’s report as to whether we support a unified approach to human rights at sea. The Government clearly share the committee’s concerns over the many instances of human rights abuses at sea—we have heard some of them today. It can be challenging to uphold these rights for those working away from home. Incidents at sea are often invisible to authorities ashore and there are jurisdictional complexities, which have been noted. We recognise that these abuses are often linked with a broad range of troubling issues, such as modern slavery, drug trafficking, poor working conditions on vessels, crimes on ships and piracy, which the noble Lord, Lord Collins, referenced.
The noble Lord, Lord Collins, and the noble Baroness, Lady Goudie, raised another issue around our broader responsibilities for seafarers’ living and working conditions under our flag and in our ports. The UK is working with international partners and all the relevant international organisations to improve health, safety and living and working conditions for seafarers.
As the committee identified, some flag states are unable or unwilling to properly exercise oversight over ships entitled to fly their flag. This obviously poses a serious challenge for maritime security and law enforcement on the high seas. UNCLOS is very clear; it requires there to be a “genuine link” between the flag state and ships flying its flag. It also requires a flag state to
“effectively exercise its jurisdiction and control in administrative, technical and social matters”.
We and a number of the overseas territories and Crown dependencies operate ship registries and co-operate within the framework of the Red Ensign Group to ensure that these registries maintain the highest international standards. The UK and the Red Ensign Group recently passed an audit by the IMO. We continue to champion safety, security and working conditions at an international level, working with partners and drawing on the capabilities of our agencies, such as the Maritime and Coastguard Agency. We continue to improve understanding and robust enforcement of flag state duties and responsibilities. We continue to push for new standards to improve safety, security and working conditions right across the maritime sector globally.
Alongside that, I welcome the committee’s recommendation for strengthening port state controls. It was a point made by the noble Lord, Lord Teverson—in fact, he has made it to me a number of times in previous debates—and the noble Lord, Lord Collins. The UK takes this responsibility very seriously. Over the last three years, we have inspected nearly 3,500 ships, and 96 of them were detained for violations of the International Safety Management Code.
Equally seriously, to prevent illegal, unreported, unregulated fishing catches from entering our supply chain, the UK is one of 100 states—I said that as if it were a big number; it is not a big number—to have endorsed the agreement on port state measures, a key international framework for the prevention of IUU fishing. Clearly, 100 states is not nothing, but it is not nearly enough. This is something that really needs to become ubiquitous if we are to close the loopholes that allow illegal fishing to flourish in the way that it does.
As an aside, at the UN Ocean Conference in Portugal, I spoke to the Prime Minister of the Cook Islands, who told me that four in every five fish caught in his country’s waters are stolen. You can imagine what that means in terms of revenue for a small-island state of that sort. The same is true right across the Pacific. Even large countries such as Indonesia are finding it almost impossible to deal with IUUs, so you have no hope if you are a small-island state in the Pacific or the Caribbean.
Where there are disputes, we urge parties to settle them through peaceful means. This includes using existing legal mechanisms, particularly those established by UNCLOS. Coercive activities in the South China Sea, cited by a number of speakers, directly undermine and are at odds with the principle of freedom of navigation provided for in UNCLOS. The UK is committed to international law, to the primacy of UNCLOS, and to freedom of navigation and overflight. That is as true in the Arctic as it is in the South China Sea and everywhere else. The UK takes no sides in the sovereignty disputes, but we have regularly raised concerns with China over its conduct in the South China Sea.
The Government share the committee’s views on monitoring carefully the development of maritime autonomous vehicles. We instigated a regulatory review to address, among other things, security concerns raised by autonomous technologies and implications for their use by organised criminals and other malign actors. We share the committee’s praise for the Royal Navy’s work to determine how maritime autonomous vehicles fit within the existing legal regime. The UK will continue to work with our partners and take a lead at the IMO to develop regulations to govern maritime autonomous vehicles within the framework of UNCLOS.
A number of noble Lords mentioned one of the consequences of climate change: the effect of rising sea levels on small island and coastal states. The Government acknowledge the committee’s concern about the potential impact of sea level rise on determining maritime zones. As the Grand Committee will understand, this is a complex matter that will affect all coastal countries, particularly vulnerable small island developing states. We are continuing to review this issue with international partners. I have discussed it many times with representatives from small island developing states, particularly in the Pacific, who are asking the international community to engage on this issue. We are doing that, but it is complex, as has been noted.
We continue to work with the SIDS, or small island developing states, to drive global ambition more generally on emissions reductions and support adaptation and mitigation. It was the passion and moral authority of the small island developing states that enabled us to go further at COP 26 than we otherwise might have been able to go. The UK Government have a number of programmes helping SIDS to strengthen their resilience to climate change. That includes the £36 million sustainable blue economy programme, dedicated to supporting resilient ocean economies and marine environments under the flagship Blue Planet Fund. My noble friend Lady Fall talked about the blue belt, but there is a link. The Blue Planet Fund is our relatively new £500 million fund. It has a very broad remit and is doing excellent work, thanks to colleagues in both Defra and the FCDO. Many programmes are developing under the Blue Planet Fund, but some are designed to contribute also to our international development strategy vision to see SIDS achieve economic and climate resilience by 2030.
In response to my noble friends Lady Rawlings and Lady Fall, and the noble Baroness, Lady Goudie, on climate change, COP 26 undoubtedly raised the profile of oceans within the context of climate. We established the link between nature and climate more generally. We made it clear, and I think it is accepted, that there is no solution to climate change without nature; there is no net-zero plan that is credible unless it has nature at its heart. That is true of the terrestrial environment; it is true even more so probably of the ocean environment, for all the reasons cited by the noble Lord, Lord Teverson. We raised the status of oceans significantly. That was continued at COP 27, where the Glasgow legacy was cemented. We welcome the progress that was made on that under the Sharm el-Sheikh implementation plan.
A particular focus of COP 27 was on the need for more investment in nature-based solutions to climate change, in recognition that ecosystems such as mangroves, seagrass and sword-grass—and coral reefs as well—are crucial for not only mitigating climate change but adaptation. We have seen some really ambitious programmes around the world that respond directly to the threat of the reality of climate change today and are manifesting in nature-based solutions. Indonesia is planting 600,000 hectares of mangroves—probably the most ambitious coastal restoration programme in the world—and it is doing it, not just talking about it. When Colombia was hit by record storms two years ago, it was noticed that the communities where the mangroves and coral reefs had been degraded were destroyed by the storms, whereas those communities which still had mangroves and coral reefs were battered but not destroyed. As a result, an incredibly ambitious programme of restoration of coastal ecosystems has begun, as a protection or insurance against continued escalation and change.
I will not talk about the blue belt, because my noble friend Lady Fall has already mentioned it, other than to say that it is genuinely one of the great stories of conservation in my lifetime. We now have over 4.5 million square kilometres of extraordinarily valuable and unique ecosystems fully protected, as a consequence of the work of our wonderful overseas territories. It really is a wonderful programme and to those who are not aware of it, I say please look into it, because it is not discussed enough. I think it is a wonderful thing and a source of real pride for the UK.
The noble Baroness, Lady Anelay, and a number of others raised deep sea mining. This, too, is an emerging and undoubtedly very real threat to the marine environment. As your Lordships would expect, we are fully engaged in the ongoing negotiations at the International Seabed Authority with respect to deep sea mining. I note the comments of the noble Lord, Lord Teverson, about the French position. In fact, there was a bit of a wobble there: he might remember that at the Portugal summit there was an announcement that it would push for a moratorium, which was then reversed. Thankfully, the position was reinstated more recently in the run-up to COP 27, so I and the UK Government welcome France’s position.
Like many here, I suspect, I would prefer to see no deep sea mining at all. The risks are immense and the effect of pollution or things going wrong when you explore in the way that deep sea mining would involve could be catastrophic. We know that pollution travels in a particular way in water, and that the effects are much greater than on land. This is a genuine threat that has not been taken sufficiently seriously.
Our formal position in the UK is that we will not sponsor or support the issuing of any exploration licences for deep sea mining until and unless there is sufficient scientific evidence about the potential impact on deep sea ecosystems, as well as strong and enforceable environmental regulations, standards and guidelines that are meaningful and will provide the kind of genuine protection necessary. We do not use the term “moratorium” but that is the effect of the policy which we stand on. The bare minimum is a position which says, “No action until we are absolutely sure we can do so safely”. It may be that we can never do so, and that science comes about and tells us that we simply cannot engage in deep sea mining in a way which is responsible, in which case our position must reflect that. I suspect that it will be another Minister standing here by the time such a decision is reached, but my view is that we must maintain the precautionary approach we have at the moment.
The UK Government have commissioned an independent peer-reviewed report by experts from the British Geological Survey, the National Oceanography Centre and Heriot-Watt University, which was published on 31 October this year. Defra, FCDO and JNCC officials have recently returned from the ISA Council negotiations in Kingston, Jamaica, where progress is being made. We are working closely with international partners to ensure the highest environmental standards are embedded in the regulatory framework of the ISA, with the view to those regulations being adopted some time in the middle of next year, if they are agreed.
I move on to an issue raised by a number of speakers, including my noble friend Lady Anelay, in her opening speech, and my noble friend Lady Rawlings: biodiversity beyond national jurisdiction. The UK is clearly pushing hard for an ambitious agreement, and we want it to happen as soon as possible. The UK played a key role in the recent intensive negotiations in New York with a view to reaching this agreement. I pay tribute to our officials, who did a phenomenal job.
At the UN Ocean Conference in Lisbon in June, with their help, I brought together key Ministers to try to find a way forward on the tricky issue of monetary benefit-sharing linked to marine genetic resources. The idea there was to talk to some of the developed countries and persuade them to be a little more relaxed about their red lines. You can debate for a thousand years but, if your red lines never move, the debate becomes almost impossible. I think we did move some of those countries and, with the UK in the driving seat, were able to craft an offer to developing countries that is being taken seriously.
We also led work on MPAs, with WWF and other key delegations, by brainstorming ideas and co-chairing discussions during the negotiations to ensure that we achieve more than just “paper parks”. We will continue to bring together delegations and interest groups to help achieve consensus before the formal negotiations resume in February 2023. This is a priority for us. We recognise that the UK has done a lot of work drumming up support for the 30x30 target, which I hope will be agreed in Montreal in a few weeks—protection for 30% of the world’s land and ocean by the end of the decade. If we agree it but fail to agree the ambition at the level of biodiversity beyond national jurisdiction, we cannot deliver 30x30, because it is necessary to deliver much of that protection target by protecting the high seas.
If I have time, I have one further point in response to my noble friend Lady Rawlings and others on security in the Arctic. Global warming is clearly causing numerous profound changes, specifically and disproportionately in the Arctic. Melting sea ice is opening up new sea routes which, in turn, create opportunities for exploitation that were not there formerly. It would be wrong not to recognise that those opportunities exist but, equally, that opening up these routes also creates the possibility of extreme exploitation of the sort articulated by the noble and gallant Lord, Lord Stirrup, on illegal fishing and the ravages that can be caused by some of the gigantic floating factories that he described.
We are committed to supporting our allies and partners through the appropriate regional forums, such as the Arctic Security Forces Roundtable, where we share information on the changing environment, improving collective awareness and deconflicting activity in the Arctic. We are looking for opportunities for continuous further co-operation.
In response to the noble Viscount, Lord Waverley, on Russia, we continue to monitor closely and assess the approach adopted by both Arctic and non-Arctic states including Russia—not least its military postures and any activity that violates international norms and agreements, such as UNCLOS.
A number of speakers asked me to talk about subsea cables. I just point to the first government response to the committee—I am afraid that I do not have the date—where there is a fair bit of information on this issue and the Government’s position on protecting those cables. Needless to say, like the committee, we regard undersea communication cables and infrastructure generally to be critical to national and international connectivity and security. I very much share the concerns noble Lords raised.
To conclude, the International Relations and Defence Committee’s report makes a valuable contribution to an enormously important topic. We welcome the committee’s scrutiny of our approach to UNCLOS and the suggestions and ideas within the report. I once again emphasise my thanks to my noble friend Lady Anelay for tabling this debate and to noble Lords for their contributions.
Baroness Anelay of St Johns (Con)
My Lords, I thank everybody who has participated in this debate. My noble friend Lady Fall made the point that some may think this is a niche subject; it has proved to be anything but. I will let colleagues into a little secret: I do not decide what an inquiry is to be on. I put together a list, with the help of colleagues. I ask them to volunteer suggestions, the secretariat comes up with suggestions, then I ask colleagues on the committee to give two votes for their first choice and one for their second. The result was a 90% decision in favour of an inquiry on UNCLOS. At the time, this was a surprise to some outside our committee, but our committee then proved that it was absolutely the right thing to do because, as noble Lords have said, we face tremendous challenges on the high seas and on waters everywhere with regard to security, climate change and human rights.
I thank the Minister for some of the updates he has given today. Clearly, we need to consider our future response regarding the security of subsea cables far more, an issue on which we took evidence but that is now front and centre of security threats across the Atlantic. We have seen alleged Russian mischief with regard to gas pipelines. It is not only cables and pipelines; there are many aspects of security at sea that threaten not only our physical but our economic security.
We recommended that the Government should not renegotiate. I agree entirely with the Minister: if that happened, it is likely that there would be no agreement. Sadly, I think of human rights issues and gender equality in that regard, in this period of 16 days of trying to end violence against women and girls; I do not think the Beijing agreement would have a hope in hell of being agreed today, so thank goodness it is there.
As noble Lords have made clear throughout, in order to have enforcement, you need multilateral agreements. One problem is that when China gets involved in multilateral negotiations, it likes to drive the definition. Throughout all the discussions, whether at the United Nations or elsewhere, it is clearly trying to steer the rest of the global community away from what has been a view of compliance with international law and international humanitarian law. It is trying to redesign that. That is where the UK needs to ensure that its voice, which has been loud, continues to be so and continues to be heard. There is much that the UK can do, and it can do it not only as a Government but with the assistance of experts. I point out that our inquiry drew attention to the fact that there are British experts, whether they be judges or academics, who can make a real contribution to international knowledge and agreement.
I am grateful to those who gave evidence to us because they pointed the way. We followed. We then made sure that we analysed that with the help of the inestimable ability of our secretariat, and we put the report before your Lordships today. I beg to move.
Technology Rules: The Advent of New Technologies in the Justice System (Justice and Home Affairs Committee Report)
(1 year, 5 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
That the Grand Committee takes note of the Report from the Justice and Home Affairs Committee Technology rules? The advent of new technologies in the justice system (1st Report, Session 2021–22, HL Paper 180).
Baroness Hamwee (LD)
My Lords, I am delighted to move this Motion and I hope the Grand Committee will support it.
This is the first formal report of our committee, which was formed in April last year. At the start, our members knew little about new technologies—I hope I am not being unkind to any of them. After some tuition, we confessed ourselves terrified, but we should not have been terrified about not understanding technologies; in a way, that is the point. The report is about new technologies and how they affect the citizen in the justice system. We looked largely at policing because that was where the evidence led us, but our recommendations have wider application.
Quite early on I asked, rhetorically, “How would I feel if I was arrested, charged, convicted and imprisoned on the basis of evidence I did not understand and could not access?” Towards the end of our work, another member said, “Look at Horizon and the Post Office; look at what happens when you assume the computer is always right”.
We heard about the software and tools used to record, store, organise, search and analyse data, and those used to predict future risk based on the analysis of past data. Predictive policing includes identifying, say, an estate where there has been a lot of crime, putting police in and detecting more crime than in an area that is not overpoliced. The data reflects this increased detection rate as an increased crime rate, and that is embedded in the next predictions. It is a vicious circle which, as a witness said, is
“really pernicious. We are looking at high-volume data that is mostly about poor people, and we are turning it into prediction tools about poor people.”
The noble Lord, Lord Blunkett, who had hoped to speak this afternoon but, given the change of time, has a clash and apologises for not being here, asked me to say the following:
“It is critical that the substantial issues addressed in the report are confronted before major problems arise, rather than because of them. The wide-ranging implications for the operation and therefore the credibility of the criminal justice system, and the unanimity supporting the committee’s findings, require something better than kicking the can down the road or believing that the present architecture can handle the growth and significance in the use of artificial intelligence.”
I heard a murmur of support when I was reading that, but I will continue even though it pretty much says what I will say over the next few minutes.
The “something better” includes welcoming innovation and regulating it appropriately. The issues are difficult, but the point was not to put them in the “too difficult” tray. I believe that the report answers the not unexpected concerns that we must not stifle innovation, that each police force should be free to take its own decision and that police and crime commissioners must ensure compliance with human rights.
Proposing regulation often raises hackles, but it is another way of requiring standards to be met. Standards are a good thing—in themselves and because something known to meet agreed standards is more likely to be trusted. For example, standards can ensure, to the greatest possible extent, that conscious and unconscious bias—such as racial bias in stop and search tools—is not baked in. That is to the benefit of the producer as well as others. In other words, standards support innovation.
Procurements deserve a lot of attention. A police officer procuring a product can be vulnerable to an overenthusiastic sales pitch—we heard some horror stories—or a one-sided contract. I would have loved to see a form of contract, for instance, about the ownership of data, both input and output. Does the commercial producer of the programme own it? It is a big question, which makes one wonder about data inadequacy, but I will not go there this afternoon. We were not able to get hold of a form of contract: commercial confidentiality gets in the way.
National standards would include requirements in respect of reliability, accuracy and performance in the context of their use, evaluation, validity, suitability and relevance. It is very worrying if standards are regarded as a threat.
We heard a lot about the independence of police and crime commissioners, and that PCCs and chiefs ensure compliance with human rights. I heard that as overdefensive. Of course each force should pick products to suit its local needs; there are 43 forces applying the same law. By analogy, the BSI kitemark is in common use for many products in other sectors—in other words, certification. The police could have a choice among certified products. That would not preclude them picking products to suit their own local priorities. Operationally, this would not mean that the police do not have to assess both the necessity and proportionality of each deployment.
This is all part of governance. The point was made more than once, including by government: “You can always go to court to sort things out”, but the courts’ role is to apply the law, and nothing goes to court unless someone takes it there. That needs determination, emotional energy and money. By definition, the judgment will not be a comprehensive assessment nor a systematic evaluation.
In a similar vein, the Minister said to us that Parliament is the national ethics body—to be fair, I think that was a throwaway line—but I doubt that we are qualified for that. However, Parliament has a role in establishing a national body: independent, on a statutory basis and with a budget. We think there should be a single national body. Our report lists 30 relevant bodies and programmes. That makes for very complicated governance.
There can never be a completely one-stop shop, but that does not mean that simplification is not needed. It is not surprising that there is confusion as to where to find guidance. The committee recommends a body where all relevant legislation, regulation and guidance are collated, drawing together high-level principles and practice. Primary legislation should be for general principles, with detailed regulation setting minimum standards—not so prescriptive as to stifle innovation, but recognising the need for the safe and ethical use of technologies. We recommend the use of statutory instruments, despite the procedural drawbacks with which your Lordships are familiar, as a vehicle for regulations and a basis for guidance, with scope for non-statutory guidelines.
To assess necessity and proportionality, we need transparency. A duty of candour is associated more with the health service, but we urge the Government to consider what level of candour would be appropriate to require of police forces regarding their use of new technologies.
We also recommend mandatory participation in the Government’s algorithmic transparency standard—currently, it is voluntary—and that its scope be extended to all advanced algorithms used in the application of law which has implications for individuals. This would in effect produce a register, under the aegis of the central body. I understand that the Information Commissioner’s Office and Thames Valley Police, and no doubt more, are involved with the standard, and there is clear wish to link compliance with it to processes to improve technology and to enable police to exchange information about what works and what does not. There is a wish too to link it to independent oversight.
Ensuring the ethical use of any tool is fundamental. That has to be integral to the use of the tool, as we have seen with live facial recognition and the London gangs matrix, whose review apparently led to the removal of the names of some 1,000 young black men. The West Midlands Police are leaders with their ethics committee, both in having it and in how it is used—I have been very impressed by what I have heard and seen of its operation. There are similar bodies in a few, but only a few, other forces. If we get the standards right, the tools will be better trusted, by the citizen and the police themselves. That will free up police resources.
Current legislation provides that a person shall not be subject to
“a decision based solely on automated processing, including profiling, which … significantly affects him.”
The then Home Secretary assured us that decisions about humans would always be taken by humans—a human in the loop—but clicking a button on a screen is not enough when one starts from the mindset that “the computer is always right”. We agreed with the witness who said that the better way is that the machine is in the loop of human decision-making.
Does the human understand what it and he are doing? “Explainability” is essential; I had not come across that term before, but it seems to be used a lot in the sector. It is essential for the user, the citizen affected and everyone else. If the police officer does not understand the technology, how can he know if he—or it—has made a mistake? A critical approach in the best sense is needed.
The Sunday Times recently reported on new AI which will detect sex pests and thugs on trains who intend to assault rail passengers. It said:
“When a woman is sitting on her own in a carriage with empty seats, it could also assess whether she feels threatened when a man comes to sit down next to her or whether she welcomes his presence.”
There is no hint there might be some fallibility in all this. With all of this, noble Lords will not be surprised that we identified a lot of training needs.
We received the Home Office response to our report in the summer. I wrote on behalf of the committee to the then Home Secretary that we were “disheartened”—the best term I felt I could use courteously—by the
“reaction to what we hoped would be understood as constructive conclusions and recommendations. These are very much in line with the recommendations of other recently published work”.
Indeed, a workshop discussing the report last week at the Alan Turing Institute bore this out. The response read to us as more satisfied with the current position than was consonant with the evidence we had used. I will not quote from the Government’s response as I am optimistic that the Minister today will be able to indicate an understanding of our conclusions and an enthusiasm to progress our recommendations. I beg to move.
Lord Hunt of Wirral (Con)
My Lords, I draw attention to my entry in the register, in particular to my role as a partner in the international commercial law firm, DAC Beachcroft. I am very much aware from that separate strand of my life how law firms are increasingly under pressure from their clients to make use of automation and AI. This can lead directly to efficiencies and cost savings. It also offers up the longer-term possibility of developing and licensing self-serve law tech solutions to replicate some of the services that law firms have traditionally provided, reducing the dependency on lawyers. In a highly competitive market, technology can make all the difference. So, both as a lawyer and a legislator, I warmly welcome this debate. I congratulate the noble Baroness, Lady Hamwee, for her impressive opening speech, her leadership of the select committee and her wise guidance in helping us to produce a very persuasive report.
I dare say that all reports suffer to some extent from in-built obsolescence, especially those dealing with technology. However, I hope that by going back to first principles, the committee has given this one sustainable life and relevance. As we read our way into these questions and raised them with witnesses, I think it is fair to say that we grew more, not less, concerned about the implications for the rule of law of the burgeoning technologies that are increasingly available.
The very good report we produced by consensus with the help of our excellent support team makes our sense of concern—even alarm—very overt and apparent. Our inquiry left me in no doubt about the scale of the challenge we all face to ensure that new technologies serve the best interests of justice and the public interest more widely.
Some noble Lords may have heard or read a highly stimulating lecture earlier this year by the Master of the Rolls, Sir Geoffrey Vos, in which he mused on the significance for us all of
“the inexorable rise in blockchain technologies”,
which will
“immutably record every event or transaction in our lives.”
He also predicted that a
“truly integrated online digital justice system to resolve civil family and tribunals disputes”
would be in place in England and Wales by the mid-2020s at the latest. It is quite a thought.
It is very easy to be seduced by the technologies themselves, but I would like to pull focus to questions of transparency, governance and accountability. We are told that much accountability within the system now rests with police and crime commissioners. My own dealings with such a commissioner give me no reassurance at all—quite the opposite, in fact. I do not believe that PCCs can provide adequate or even meaningful accountability, especially where fast-moving technology is concerned. They lack the necessary expertise and, looking at some of the turnouts in PCC elections, they lack the authority too.
With both the criminal and civil justice systems so overstretched and behindhand, it is all the more tempting to succumb to the allure of the glittering baubles of high tech, AI, algorithms and all the rest, with the promise they appear to offer of a faster, slicker set of outcomes. If we are also persuaded that those outcomes are also more just and fairer, with human fallibility stripped out, the Lorelei cry may prove irresistible. Yet, again and again during the course of our inquiry, we heard from experts how algorithms, however sophisticated, can be “gamed”. If this is true, I wonder whether algorithms can ever truly be fit for purpose within a justice system.
It all takes us inevitably back to the old, uneasy, irreconcilable tension between the supposedly sacrosanct principle of operational independence versus the ultimate need for accountability to prevent a police force or chief going rogue, which, as I have witnessed myself, does indeed happen from time to time, although fortunately rarely. I am becoming increasingly troubled by what we call “fairness metrics”. We hear much talk of using AI, not simply to deliver the status quo more effectively and efficiently, but actively to make society “fairer”—a subjective and loaded term, if ever I heard one—by rectifying perceived social, economic and other inequalities. If that initiative acquires significant momentum, we as parliamentarians must surely be profoundly concerned about what is being factored in.
I see a clear analogy here with the development of automation and AI in the automotive sector. We were told six or seven years ago that driverless cars would be on our roads by 2021. The reality is, they are still not here. Safe implementation is a vital consideration, as is the need for an appropriate legislative and regulatory framework both pre and post placement and, ideally, through testing in a sandbox environment to ensure the veracity and reliability of algorithms.
Rushing the implementation of automation and AI would be damaging enough in the context of automated vehicles, but getting it wrong risks pushing back mass-market adoption of technologies designed to improve productivity and mobility. A similar mistake is surely inconceivable and wholly unacceptable in the context of the criminal and civil justice systems. Who is keeping a close eye on all this? Is it Ministers?
I am sad that the noble Lord, Lord Blunkett, is not here. To quote from the evidence that we received from the Minister, when I asked at question 107,
“Will you be keeping a careful eye on this?”
The Minister responded,
“That is a very good question which I will have to think about … We have some brakes and levers that we can pull”.
At that point, the noble Lord, Lord Blunkett, said,
“There are ways and means, I promise you.”
At the end of the day, that is what this debate is all about. Who is keeping a careful eye? Is it officials? If it is, from which of the plethora of departments and public bodies that are active in this field will they emerge?
We come back to accountability. Who has practical, day-to-day responsibility for the legal, ethical and active use of advanced technologies of this kind? Who has day-to-day decision-making powers, and where is the practical transparency and ultimate accountability? The reality is always that ultimate responsibility must rest with Ministers and Parliament. The Executive takes the decisions and faces the scrutiny of the legislature in either or both of our Houses of Parliament. The question then is how to make that work quickly, effectively and reliably.
It is perhaps inevitable that a report of this kind raises more profound questions than it would ever be capable of answering, especially when addressing so complex and controversial a topic. I was worried at the time of publication that we would not succeed in our aim of moving Ministers to share our concerns. The trials and tribulations within the Government in recent months have not served to calm my fears. Now we appear—I stress, appear—to be in a period of much-needed stability again. I hope we catch the eyes and ears of Ministers and make a difference, for in the field of radical innovation, just as in the field of criminal and civil justice, prevention of an undesirable outcome is invariably preferable to cure.
Baroness Primarolo (Lab)
My Lords, I will make a small contribution to this debate as a member of the committee but, first, I pay tribute to the noble Baroness, Lady Hamwee. She steered our committee through complex and, at times, contradictory evidence to try to make sense of what, as the noble Lord, Lord Hunt, said, is a rapidly changing and developing area. Her opening remarks in this debate said, with great eloquence, exactly which problems the committee identified and our fears for the implications for the justice system if those problems are not addressed. The noble Lord, Lord Hunt, referred to the prediction of driverless cars. The issues addressed within our justice system are cumulative and the problem will be too large to address if we do not take these very small steps at the beginning.
I welcome the Minister to this debate. I recognise that this is a complex area of policy and that the Government are trying to catch up, balancing all sorts of priorities, while the technologies continue to develop and change.
Your Lordships and the Minister will see from the committee’s report that we raised concerns, particularly about the risks to human rights and civil liberties as a result of the increasing use of these advanced technologies, and particularly in the police forces, which was our focus. We stopped there because the subject was so enormous, if we had not, we would still be deliberating on the evidence. Clear questions continually emerged which remained unanswered—questions of accountability, efficacy, transparency and the potential to undermine inadvertently the basic principles of our criminal justice system.
The question that our committee kept finding itself confronted with was: what are the principles which should underpin the safe and ethical use of these new technologies in the justice system? Currently, a lack of national minimum standards, transparency, rigorous evaluation and training in the use of these technologies means that human rights and civil liberties could be compromised. Are we to wait until they are compromised before we decide to address these principles?
In endorsing this report, the committee unanimously decided that now is the time to start acting. It cannot be right that 43 constabularies are doing their own thing, most in isolation from each other, evaluating as they go along, at best—if they do it at all. However, that evaluation is not open to public scrutiny—it does not provide a route through to the point that the noble Lord, Lord Hunt, made: who is accountable? Parliament has to be accountable, and how do we discharge those responsibilities without the information in the first place? Each constabulary develops the use of the technologies to its local policing objectives and does different tasks to different levels of complexity. I am not making a case for a national police force, and neither was the committee, but it would be helpful to those constabularies to be provided with clarity from government on the basic principles that they should be observing, as this fits within the wider justice system.
Some are in no doubt—it may be the case; I do not have a crystal ball—that advanced technologies have a huge potential in assisting the police in delivering priorities and a policing system that commands confidence, trust and respect, improving efficiency, productivity and problem-solving. That is the sales pitch to the constabularies. But—and it is a very big but—these technologies have challenging and significant downsides with regard to civil liberties and human rights, as the noble Baroness, Lady Hamwee, pointed out. If not addressed, they will undermine the same confidence, trust and respect, and, if inadvertently and wrongly used, they will undermine the concept of fairness in our justice system. We should be under no illusion that if these technologies are allowed to mushroom in the police service without clear, consistent, understandable standards and protections, we will build up significant problems.
We urgently need consideration at national level of the trade-offs in using these new technologies: human rights versus interference with those rights, while ensuring that the interventions are necessary and proportionate. When we asked where the balance was, who was accountable and who was watching, answer came there none. On their effectiveness, we asked: are the public safer with these enhanced technologies and do these technologies make a difference? Again, in the absence of evaluation, answer came there none.
Transparency is a crucial principle because, increasingly, citizens want transparency about how their personal information is used and shared. Many benefits flow from transparency, including identifying problems early on and, crucially, improving the public’s trust in data-driven technologies. With that trust comes a pathway to developing appropriate technologies in supporting priorities. It happens elsewhere, so the committee suggested a central organisation or regulating body. NICE does it for the health service with regard to the efficacy of drugs. Why can it not be done in the justice system? The embryology authority balances what is possible medically with what is acceptable ethically. Why can we not use similar models?
Does the Minister think that police forces should satisfy themselves in advance of using new technologies, through independent verification, that the software program does not have an unacceptable level of bias? How can we be confident that historic cultural bias is not built into the system? Does the technology actually work and do what we want?
There are steps forward that could be taken—I know it is going to be very difficult—to deliver two central propositions recommended in this report. First, will the Minister agree to bring together the 43 constabularies, either by requiring or facilitating them, to share their knowledge and experience in this area so that we can begin the painful process of getting on the right side of this development? Secondly, will he consider appointing an expert panel of academics and practitioners to advise him on how to make progress on having the correct balance for a regulatory authority that protects us and our civil liberties, but enables the police and the justice system to do their job effectively?
Lord Clement-Jones (LD)
My Lords, it is a pleasure to follow three such excellent opening speeches. I draw attention to my interests in the register, particularly my interest in artificial intelligence technologies as a former chair of the AI Select Committee of this House. As a non-member of her committee, I congratulate my noble friend Lady Hamwee and the committee on such a comprehensive and well-argued report.
I entirely understand and welcome the width of the report but today I shall focus on live facial recognition technology, a subject that I have raised many times in this House and elsewhere in Questions and debates, and even in a Private Member’s Bill, over the last five years. The previous debate involving a Home Office Minister—the predecessor of the noble Lord, Lord Sharpe, the noble Baroness, Lady Williams—was in April, on the new College of Policing guidance on live facial recognition.
On each occasion, I drew attention to why guidance or codes are regarded as insufficient by myself and many other organisations such as Liberty, Big Brother Watch, the Ada Lovelace Institute, the former Information Commissioner, current and former Biometrics and Surveillance Camera Commissioners and the Home Office’s own Biometrics and Forensics Ethics Group, not to mention the Commons Science and Technology Committee. On each occasion, I have raised the lack of a legal basis for the use of this technology—and on each occasion, government Ministers have denied that new explicit legislation or regulation is needed, as they have in the wholly inadequate response to this report.
In the successful appeal of Liberal Democrat Councillor Ed Bridges, the Court of Appeal case on the police use of live facial recognition issued in August 2020, the court ruled that South Wales Police’s use of such technology had not been in accordance with the law on several grounds, including in relation to certain human rights convention rights, data protection legislation and the public sector equality duty. So it was with considerable pleasure that I read the Justice and Home Affairs Committee report, which noted the complicated institutional landscape around the adoption of this kind of technology, emphasised the need for public trust and recommended a stronger legal framework with primary legislation embodying general principles supported by detailed regulation, a single national regulatory body, minimum scientific standards, and local or regional ethics committees put on a statutory basis.
Despite what paragraph 4 of the response says, neither House of Parliament has ever adequately considered or rigorously scrutinised automated facial recognition technology. We remain in the precarious position of police forces dictating the debate, taking it firmly out of the hands of elected parliamentarians and instead—as with the recent College of Policing guidance—marking their own homework. A range of studies have shown that facial recognition technology disproportionately misidentifies women and BAME people, meaning that people from those groups are more likely to be wrongly stopped and questioned by police, and to have their images retained as the result of a false match.
The response urges us to be more positive about the use of new technology, but the UK is now the most camera-surveilled country in the Western world. London remains the third most surveilled city in the world, with 73 surveillance cameras for every 1,000 people. The last Surveillance Camera Commissioner did a survey, shortly before stepping down, and found that there are over 6,000 systems and 80,000 cameras in operation in England and Wales across 183 local authorities. The ubiquity of surveillance cameras, which can be retrofitted with facial recognition software and fed into police databases, means that there is already an apparatus in place for large-scale intrusive surveillance, which could easily be augmented by the widespread adoption of facial recognition technology. Indeed, many surveillance cameras in the UK already have advanced capabilities such as biometric identification, behavioural analysis, anomaly detection, item/clothing recognition, vehicle recognition and profiling.
The breadth of public concern around this issue is growing clearer by the day. Many cities in the US have banned the use of facial recognition, while the European Parliament has called for a ban on the police use of facial recognition technology in public places and predictive policing. In 2020 Microsoft, IBM and Amazon announced that they would cease selling facial recognition technology to US law enforcement bodies.
Public trust is crucial. Sadly, the new Data Protection and Digital Information Bill does not help. As the Surveillance Camera Commissioner said last year, in a blog about the consultation leading up to it:
“This consultation ought to have provided a rare opportunity to pause and consider the real issues that we talk about when we talk about accountable police use of biometrics and surveillance, a chance to design a legal framework that is a planned response to identified requirements rather than a retrospective reaction to highlighted shortcomings, but it is an opportunity missed.”
Now we see that the role of Surveillance Camera Commissioner is to be abolished in the new data protection Bill—talk about shooting the messenger. The much-respected Ada Lovelace Institute has called, in its report Countermeasures and the associated Ryder review in June this year, for new primary legislation to govern the use of biometric technologies by both public and private actors, for a new oversight body and for a moratorium until comprehensive legislation is passed.
The Justice and Home Affairs Committee stopped short of recommending a moratorium on the use of LFR, but I agree with the institute that a moratorium is a vital first step. We need to put a stop to this unregulated invasion of our privacy and have a careful review, so that its use can be paused while a proper regulatory framework is put in place. Rather than update and use toothless codes of practice, as we are urged to do by the Government, to legitimise the use of new technologies such as live facial recognition, the UK should have a root-and-branch surveillance camera and biometrics review, which seeks to increase accountability and protect fundamental rights. The committee’s report is extremely authoritative in this respect. I hope today that the Government will listen but, so far, I am not filled with optimism about their approach to AI governance.
Lord Hope of Craighead (CB)
My Lords, I congratulate the noble Baroness, Lady Hamwee, on securing this debate. As another non-member of the committee, I join the previous speaker in congratulating her and all members of the committee on such an excellent and informative report. I hope that when the Minister replies, he will be able to remove at least some of the evident disappointment which the noble Baroness felt on reading the Government’s response.
Before I go into any detail, I should explain that my interest in this subject is directed to the use of AI in the courts and the challenges that it faces. However, I confess that I have no technical expertise and have had very little contact with the courts’ use of AI at first hand; nor I did not have the advantage the committee members had of listening to the evidence, so I start with a definite disadvantage. I come from a generation which is unable to use its thumbs to operate the mobile phone. We did not have these things when we were at school so I have to jab it, as others of my generation do, with my forefingers. Things have been moving so fast that even the eight years since I retired from my judicial career have seen changes that were barely in prospect when I was still sitting as a judge.
I have struggled with the word “algorithm”, for example—not a word that I was ever accustomed to using. When I looked it up in my copy of the third edition of the shorter English dictionary, which was published in 1964 and which I purchased one year later when I was embarking on my legal career, I was told that “algorithm” is an erroneous version of “algorism”, which is an Arabic system of numbering. No other definition was offered, so I am grateful to the committee for telling me in box 1 of the report what in today’s language it really means. That definition should perhaps have made it clear that the instructions are given by means of numbers, which I believe is the way that AI operates. We owe all this to the Arabic system, which is why the word derives from the previous one.
Even so, I struggle to understand how the system works. Where do the instructions come from, and are they the right people? How do we know that the answers it produces are the right ones? Is the system open to cross-examination to test these issues? If so, how can this be done? I share the committee’s concern about where all this is leading. So far as the courts are concerned, AI comes especially into play in two ways. The first is in the provision of evidence in a criminal trial. The other is in its use in dispute resolution in the civil courts. Each of them presents very real challenges.
The report, for the most part, is directed at the use of advanced technologies by police forces. The courts become involved when evidence that has been gathered by this means is led at a criminal trial to secure a conviction. Some years ago—in fact, quite a number of years ago—I presided in a case before the criminal appeal court in which the appellant had been convicted on the basis of a primitive system of facial recognition technology. He insisted that it was a mistake and that its use was unfair because, due to problems with legal aid, he had no access to expert evidence to challenge it. It seemed to us that that amounted to a miscarriage of justice, so we set aside the conviction so that he could face trial again with expert assistance.
In the retrial, the jury—unfortunately, from his point of view—reached the same conclusion as the first jury on the recognition evidence and once again he was convicted. My point is that fairness and transparency, which the noble Baroness, Lady Primarolo, emphasised in her impressive speech, should be at the heart of any criminal trial. That requires that evidence of this kind should be open to challenge. As it happens, there was no suggestion that the evidence in that case had been manipulated; it was just said to be a mistake. The reference to the possibility of manipulation must give rise to real concerns, as shown by the very important selection of paragraphs 23 to 26 in the report, under the heading,
“The right to a fair trial”.
I support the recommendations that are referred to as numbers 1, 2 and 4 in the Government’s response. They are all designed to ensure the safe and ethical use of AI. The Government say they are confident that existing structures and organisations create a sufficient network of checks and balances, but the evidence that is narrated in this report suggests that that confidence may be misplaced. More safeguards than those that are available may be needed in this fast-moving area. I endorse the point made by the noble Lord, Lord Blunkett, which the noble Baroness mentioned: it is far better to do this now than later, when it would be too late and things would have moved on beyond recall.
As for AI’s use in dispute resolution in the civil courts, I pay tribute to the work of the Library and its very helpful briefing on the report. It contains a link to an article referred to by the noble Lord, Lord Hunt of Wirral, headed,
“Technology to become embedded in UK justice system by 2040, senior judge suggests”.
That contained a link to a speech that was given online in March this year by the Master of the Rolls, Sir Geoffrey Vos, about the future for dispute resolution in what he referred to as a “brave new world”.
If one wants to be enlightened of the huge advantages that AI can offer, they can be seen in Sir Geoffrey’s speech. He is an enthusiastic supporter, promoting AI’s use in the civil courts as fast as possible. He focuses particularly on the advantage of speed and simplicity, which gathering evidence in this way can produce. I am certainly not one of those who decries the use of AI; it is all a question of how it can be best operated.
According to Sir Geoffrey, factual disputes will themselves become a thing of the past, as so much of what we do will be indelibly recorded by AI. He referred, among other things, to number plate recognition. You cannot really dispute where your car has appeared, because AI no longer leaves any room for dispute about that. He says that we are more and more likely to find this a feature of dispute resolution in the civil courts.
He went on to say that some decisions, admittedly minor decisions, such as those about time limits and other procedural aspects, could be made by this system with no human intervention. Proposals for dispute resolution themselves would be “driven by AI”, as he puts it.
He acknowledged that public confidence is important, and that the public would need to understand what had been decided by a machine and what had not. He also said that, ultimately, there must be the ability to question an AI-driven decision before a human judge. That begs the question whether and how that can be done, and how far we can trust algorithms that are not open to being tested in that way.
I was encouraged by the statement in paragraph 32 of the Government’s response that they will work with the justice system with a view to
“better long term research and evaluation of the different circumstances in which predictive algorithms”
are described and used to support future decision-making. Of course, there is much that the courts themselves can do to control and regulate their use, but the extent of the ability of litigants to question and interrogate the algorithms is not open to control or guidance by the courts. That is why the recommendation in paragraph 155 of the report, which is dealt with in paragraph 18 of the Government’s response, is so important. It is about the need for a requirement on producers to embed explainability within the tools. If that requirement is there, one may be able open up a system of cross-examination to find out what is going on and see whether what has been produced can be relied on. I fear that the Government’s response in paragraph 35 hardly does justice to this crucial issue.
I hope that when he comes to reply the Minister will be able to reassure the noble Baroness that the Government will look again at the evidence and recommendations in the committee’s report, to see whether more can be done to regulate and control the way that AI is imposing itself on our lives. I suggest that if the Minister and his team have not already done so, they might like to read Sir Geoffrey’s speech, because it will show the advantages and concerns which surround this whole issue.
Baroness Sanderson of Welton (Con)
My Lords, it is an honour to follow the noble and learned Lord. As others have before me, I compliment the chair of the committee, the noble Baroness, Lady Hamwee, on her comprehensive opening remarks—no easy feat with this report—and her very fair and decent approach throughout the committee’s inquiry. I also compliment our secretariat on its hard work and guidance.
There are many topics we could cover—and have covered—in this debate today: the technology itself, the dangers of inherent bias and predictive policing and the implications for civil liberties. However, for the purposes of today, I will concentrate on the pace at which new technologies are developing, particularly within the police—which I, and perhaps the Minister, notice seems to be an emerging theme—and pick up on some of the Home Office’s responses to our concerns.
As my noble friend the Minister will know from the report, when we began this investigation, we did it on the understanding that, despite the concerns I have just mentioned, AI is a fact of modern life. We acknowledged that it can have a positive impact in improving efficiency and finding solutions in an ever more complex world.
However, in terms of the justice system, and more specifically the police, we became alarmed at the relatively unchecked proliferation of new technology across all 43 forces. As has been mentioned, we made a number of recommendations to combat this: a central register, kitemark certification, mandatory training and better oversight.
I know that these are significant steps and that they have costs attached, but they were carefully thought through and, to be honest, we were not expecting to be quite so roundly dismissed by the Government in their response. They seemed to imply that we had failed to appreciate the value and necessity of AI tools in today’s policing environment. In particular, the response highlighted the use of CAID—the Child Abuse Image Database—which brings together all the images found by police and the NCA, helping them to co-ordinate investigations.
In one sense, the Government are right to make much of CAID because it was game-changing. For instance, a case with 10,000 images that would typically have taken up to three days to review could be done in an hour, thanks to CAID. Perpetrators could be apprehended more quickly, officers protected from the effects of viewing these images and more focus placed on identifying the victims. As someone who worked on child sexual abuse and exploitation at the Home Office when CAID was introduced, I assure the Minister that I completely understood—and understand—the value of new technologies in certain instances.
However, in the context of the report, I just do not think that it is a very helpful example. The Home Office itself helped to develop CAID in collaboration with the police and industry partners. Once piloted, it went live across all police forces and the NCA. To suggest that that is the norm would be misleading, and it should not be used as a reason not to address the clear problems that we identified in a system where all 43 forces, as has been mentioned, are free to individually commission whatever tools they like in a market that is, as we said, opaque at best and the Wild West at worst, in which the oversight mechanisms are, frankly, inadequate. The Home Office may think that we are overreacting, but the truth is that it would be hard-pushed to make that case because without a central register, as we suggested, it is impossible to know who is using what, how and to whom.
If we dig a little deeper, the Minister may see why we are concerned. Some of this has already been mentioned. On procurement, we heard from a police representative who said that procurement is not the comfort zone of all police forces. When the tools they are procuring may have consequences for human rights and the fairness of the justice system, as we have been talking about, never mind taking into account the complexities of the technologies market, where providers are reluctant to share information on the basis of commercial confidentiality, as the noble Baroness, Lady Hamwee, said, that is truly worrying.
Then there is the problem that, as the NCC Group told us,
“many claims made by [Machine Learning] product vendors, predominantly about products’ effectiveness in detecting threats, are often unproven, or not verified by independent third parties.”
There are the salespeople who—in an understandably overzealous way in a burgeoning market—according to one developer,
“take something they do not understand and shout a number that they do not understand”.
I would add that in many cases they then make it available to officers who do not understand it either. Incredibly, the police are not required to be trained to use different AI technologies—this is one of the things I found most shocking in our report—including facial recognition, because they are procured at a local level.
All this does not feel like a solid foundation on which to deploy such highly sensitive tools and, as the noble Baroness, Lady Hamwee, has already alluded to, there are some in the police and in the market who agree with us. At the excellent conference at the Alan Turing Institute last week, one speaker representing the police pointed out that in order to become a detective you have to pass an exam, and that the same should be true for technology. Another from a different force said: “Artificial intelligence is not on the tip of the tongue of the public yet, but we don’t want it to be another frontier of failure.”
One way in which we could help to build confidence is statutory specialist ethics committees, which would not only increase community involvement and understanding but help to create an institutional culture of accountability, something that we already know needs to be improved. I am afraid to say that that was another recommendation dismissed by the Home Office.
I am not blaming the police here. There are some brilliant forces, such as West Midlands, which have spotted the benefits but also the pitfalls, and which are working hard to get ahead of them. Without more commitment from the Government, though, I fail to see how the current system leads to anything but another frontier of failure. As people have said throughout the debate, at some point under the current free-for-all, when a police force that has not put in the protections that, say, West Midlands has, it feels inevitable that something is going to go very wrong.
It is not as though the Government are not doing anything. The Centre for Data Ethics and Innovation, which is based in DCMS, is piloting the public sector algorithmic transparency standard. We on the committee would all agree with that, and, genuinely, people around the world are looking at it. Can the Minister tell me, if you compare the work that is going on in DCMS with the response to our report, how closely do officials in the Home Office work with their counterparts in DCMS on this? This pilot includes some police forces, and it does not feel as if the two marry up.
Again, as others have said, I know that probably quite a few people may wish to put this report on the shelf and watch it gather dust. However, I think we all know that in practice, that is unlikely to happen because the concerns raised within it will surely become more apparent down the line.
Finally, we heard a great analogy at the conference last week with regard to training for those using AI. The speaker said: “For a car to be allowed on the road, it’s got to have an MOT, but the driver also has to have a licence.” I am afraid that at the moment, with regard to these technologies, we do not have either.
Baroness Chakrabarti (Lab)
My Lords, what an absolute honour to follow that contribution from the noble Baroness, Lady Sanderson of Welton. Your Lordships can imagine what the contribution her fabulous communication skills and powers of analysis made to the work that we did on this report. I now have the daunting privilege of being the last member of the recently constituted Justice and Home Affairs Committee to contribute. We have also had two expert contributions from a technology expert in the noble Lord, Lord Clement-Jones, and of course the noble and learned Lord, Lord Hope. I will try not to repeat too much but will add just a little framing and a few points of emphasis.
First—this is relevant beyond even the vital business of this report—I had never sat on one of the House of Lords’ select committees before, and it was and continues to be a wonderful experience. This was a perfect subject to examine with the rigour of a Lords Select Committee in a totally cross-party way. It feels almost odd now to be a few swords away from the noble Baroness, Lady Sanderson of Welton, and the noble Lord, Lord Hunt, because on the journey that we went on together on this committee, there was no significant partisanship at all. Rights and freedoms and the rule of law should not be a partisan issue. That was definitely my experience of being on the committee of the noble Baroness, Lady Hamwee—she chaired it with the elegance of a society host, the creativity of a film director and the rigour of a judge.
I was reading in the press just today some comments from the American computer science genius and polymath Jaron Lanier. He was talking about the rise of these technologies in general, not about the criminal justice system in particular, and he told the Guardian:
“People survive by passing information between themselves. We’re putting that fundamental quality of humanness through a process with an inherent incentive for corruption and degradation. The fundamental drama of this period is whether we can figure out how to survive properly with those elements or not.”
That is a comment on the rise of these very exciting new technologies in general but I suggest that, of all the spheres in which artificial intelligence and these new technologies are being employed, the criminal justice sphere is special. There are great potential benefits, as we have heard, but real dangers as well. Why are the criminal justice system and the ambit of the home department so special? It is because we are talking about people’s rights and freedoms. We are thinking about the right to life and to protect people, our communities and victims and potential victims, but we are also talking about the gravest rights, freedoms and liberties of the subject. That came through very clearly in both the evidence to and the private deliberations of our committee.
I remind noble Lords that it was just over 40 years ago that, in response to the Brixton riots in this city, Lord Scarman produced his report because there was a crisis of trust and confidence in policing in so many of our communities. Not long after that legendary Scarman report, a Conservative Thatcher Government produced the Police and Criminal Evidence Act 1984. There was inevitably some controversy attached to it but, none the less, I would consider it a piece of human rights legislation, because it attempted to set a framework of principles and law for governing police power.
We would not dream today of rescinding or repealing that Act. It has been amended, but it is still on the statute book. The idea is that police power, while essential, needs to be regulated and consolidated in one place. Of course, new and intrusive technologies have emerged. The PACE codes have had to be updated and the legislation itself has been amended, but some basic principles and ideas of accessibility and transparency in the use of intrusive police power hold still, over 40 years later.
I do not believe that noble Lords and Ministers would dream of rescinding that, and nor should the Government think that such a framework is not needed today in relation to these new powers—these powers which we cannot even see being used, or understand, because they are effectively in a black box, or in a jar in the form of the pill but I cannot say what is in the pill that I am taking. That is why regulation and framework legislation is required.
It is simply not enough to rely on the current arrangement of broad police discretion and the occasional police witness to our committee or some other forum to say, “Oh, but you know: proportionality”. We are compliant with human rights proportionality as it if is a mantra. That is not detailed enough for regulation. It would not be detailed enough for powers of arrest and it certainly would not be detailed enough for the use of drugs. We need to get into the black box: we need to prescribe it and to decide what is legitimate and proportionate in the use of this technology and its design. Legislation is absolutely essential to avoid what the noble Baroness, Lady Sanderson of Welton, called the Wild West—because that is exactly where we are now in the use of this technology in the criminal justice system and, to some extent, at the border in relation to its intrusive use.
In addition to this framework legislation—the Police and Criminal Evidence Act and an AI Act for the 21st century—we need a national body that will do the prescription and kitemarking. There is no doubt that we need this because of the black box. Lay citizens and even parliamentarians cannot understand the technologies, read and decipher the algorithms, and understand whether coded bias is being baked in—which is happening.
I commend the Netflix documentary on facial technology that features the noble Baroness, Lady Jones of Moulsecoomb, from this House. It is a wonderful documentary. I hope that noble Lords, Ministers and their officials—who are passing them notes, probably saying “Yes, it’s a great documentary”—will watch it.
Kitemarking is essential before any procurement of these technologies and algorithms within the criminal justice system. It should not be left to local police officers, or even PCCs, to have lunch with some people who are selling their wares and decide what is a good deal or not.
In addition to the kitemarking of the product, there is a great opportunity for His Majesty’s Government and the United Kingdom in going down the road being advocated in our report. We could be world leaders in the kitemarking and regulation of this technology. In years to come, if we take up the recommendations from this committee, there could be countries all over the world that say, “We go for the UK AI in criminal justice model”. It is the equivalent of saying they want to contract in English law or in Delaware law, or whatever it is. This technology is being developed and used all over the world, and if we get ahead of the kitemarking and regulation game, others may contract into our arrangements and adopt our technologies and systems over time.
It is completely without justification, it seems to me, for private companies to be experimenting on our populations, including with their intimate data and with policing and intelligence and so on, and then claiming that they will not engage with transparency or legality because of commercial sensitivities. That is a swindle and a scandal, and it needs to end. We would not allow arms companies or drugs companies to behave this way; we certainly should not be allowing it in these deals that are being done in the 43 forces with these people in the Wild West—I will not say who it is that rides around on horses in the Wild West, but the point is made.
To conclude, we are just asking for this technology to be governed by the rule of law, for Parliament to step up and, crucially, for Ministers to step up, as their predecessors did in the Thatcher Government in the 1980s in response to the Brixton riots and the Scarman report. Only this time, we are asking that this be done before a scandal and before a crisis of confidence that reaches the kind of levels where it will be harder to use the technology in a positive way in the future.
Baroness Ludford (LD)
My Lords, this report produced by the committee chaired by my much-praised noble friend Lady Hamwee is both powerful and shocking. It does not mince its words. I will be quoting from it, as I cannot improve on its wording. The report is not before time—indeed, it is overdue. One can only wonder that successive Governments have neglected to introduce the reforms and protections that this report so convincingly explains are essential to protect us from breaches of equality, human rights and data protection safeguards.
The committee is a remarkably strong one, including as it does a former Home Secretary, the noble Lord, Lord Blunkett; a former National Security Adviser, the noble Lord, Lord Ricketts; a former director of Liberty, the noble Baroness, Lady Chakrabarti; and several very senior lawyers. The report says that the committee was
“taken aback by the proliferation of Artificial Intelligence tools potentially being used without proper oversight, particularly by police forces across the country.”
It warns that,
“without sufficient safeguards, supervision, and caution, advanced technologies may have a chilling effect on a range of human rights, undermine the fairness of trials, weaken the rule of law, further exacerbate existing inequalities, and fail to produce the promised effectiveness and efficiency gains.”
That is a stunning catalogue of dangers.
The report explains how public bodies and all 43 police forces are free to individually commission whatever tools they like or buy them from companies
“eager to get in on the burgeoning AI market”.
The committee found this
“particularly concerning in light of evidence we heard of dubious selling practices and claims made by vendors as to their products’ effectiveness which are often untested and unproven.”
No wonder that the committee reports that it
“uncovered a landscape, a new Wild West, in which new technologies are developing at a pace that public awareness, government and legislation have not kept up with.”
It refers to the phenomenon of “digital excitement”—one could say the delight in boys’ toys, if that were not sexist—felt by some who get their hands on a new technology product. That is of course not a good rationale for purchase. It is hardly surprising that my noble friend Lady Hamwee, in her letter to the Home Secretary, said that the committee was “disheartened” by the Home Office’s response to its “constructive conclusions and recommendations”, saying it found the Home Secretary—I think my noble friend Lady Hamwee quoted this—
“more satisfied with the current position than is consonant with the evidence”
that the committee had received. That is quite a strong message.
My noble friend Lady Hamwee said with considerable feeling that the committee
“hoped that when the House debates the report, the Minister will be able to explore with us in more depth the points that we raised, and not simply be briefed to repeat the formal response”.
We very much look forward to that more realistic response today. The Government’s response was disappointing and complacent, and failed to do justice to the quality of the evidence, the report and the committee. The Government
“was not persuaded that a new independent national body and certification system should be created. It said whilst certification worked in some contexts, it could also create false confidence and be costly. It disagreed with the idea of making transparency a statutory principle. It said … making transparency a legal duty could limit the police’s current transparency efforts to whatever would be set out in statute.”
Also, the Government said that
“it could not make the police and the judiciary undertake training on ‘meaningful interaction with technologies’. This was because training was the responsibility of the College of Policing and Judicial College, rather than the government.”
However, as the noble Baroness, Lady Sanderson of Welton, said, we oblige drivers to have a licence as well as for the car to have an MOT. The Government
“disagreed that there should be statutory ethics groups created to scrutinise the use of technologies and veto deployment … because they would not be democratically elected.”
These all seem remarkably weak points. An alternative term would be “scraping the barrel”.
The committee said that:
“While we found much enthusiasm about the potential of advanced technologies… we did not detect a corresponding commitment to any thorough evaluation of their efficacy … there are no minimum scientific or ethical standards that an AI tool must meet before it can be used in the criminal justice sphere. Most public bodies lack the expertise and resources to carry out evaluations … we risk deploying technologies which could be unreliable, disproportionate, or simply unsuitable for the task in hand.”
Are the Government happy with that situation?
The committee found the institutional landscape confused and duplicative—no wonder, with at least 30 organisations, initiatives and programmes having some input or other—and found governance arrangements complex and disconnected, while the Government are appointing still more bodies which make the picture even more crowded. The committee said:
“We have heard no evidence that the Government has taken a cross-departmental strategic approach to the use of new technologies in the application of the law … Thorough review across Departments is urgently required.”
Can the Minister tell us that that at least will happen? The report mentions that a government White Paper is supposedly in the pipeline. Can the Minister tell us the envisaged date for that?
The report has a number of important proposals on governance, oversight and evaluation to address these various deficits. One very sensible proposal is a new national body to set scientific and quality standards and certify new products against those standards. The committee recommends “evaluate centrally, procure locally”.
The committee says its
“evidence reflected organisational confusion about what guidance, regulation and legislation applied”
and argues persuasively for a strong legal framework to remedy the fact that
“users are in effect making it up as they go along.”
No wonder it uses the term “Wild West”.
The report refers to the EU artificial intelligence regulation, or “AI Act”, that is in preparation—I am not sure where it has got to—and notes that it would ban systems that pose an “unacceptable risk’”, such as social scoring and many deployments of facial recognition. I hope the Government are still willing to learn from the EU.
The committee suggests legislation to set principles, supplemented by regulations to govern the use of specific technologies. If the Government object that there is a lack of parliamentary time, I suggest at least three Bills that could and should be dropped to make space: the Northern Ireland Protocol Bill, the revocation of EU law Bill and the Bill of Rights Bill, otherwise known as the Human Rights Act destruction Bill.
The committee found the market “worryingly opaque”, with buyers often pretty ignorant about the systems that they were buying due to companies’ insistence on commercial confidentiality. It found some “dubious selling practices” and untested, unproven claims about effectiveness of the products.
The committee therefore makes a number of important proposals for increased transparency and explainability, including consultations and published impact assessments. The committee reports that there is no central register, making it virtually impossible to find out where and how these systems are being used such that parliamentarians, the media, academics and those subject to them could scrutinise and challenge them. The committee rightly called for a mandatory register.
The Government published their consultation paper Data: A New Direction just over a year ago, promising
“a bold new data regime”,
a phrase that makes me wary. I am concerned about prejudice to our data adequacy decision from the European Commission but also worried if it makes the Government less vigilant about data protection and privacy issues.
The committee said it sees
“serious risks that an individual’s right to a fair trial could be undermined by algorithmically manipulated evidence”,
with defendants and indeed courts ignorant of what technologies might have been used in their case. That is a pretty dire state of affairs.
The report raises serious concerns that bias in data collection could lead to discriminatory policing, especially in predictive policing. It is well-known, as my noble friend Lord Clement-Jones pointed out, that facial recognition technology is not sound when used on female and ethnic minority subjects because the learning algorithms have leaned more on data from white men than from other groups. The committee also warned of the danger of overpolicing through the use of predictive tools, which could become a vicious circle of concentration on poorer people in more disadvantaged areas.
The committee is highly concerned at the lack of accountability for the misuse or failure of these AI technologies and hence the lack of recourse for people who might suffer from their use. It suggests that the Government appoint a taskforce to produce guidance on consistent lines of accountability.
This is a first-class and hugely valuable report. The Government’s complacency—I could say blinkered complacency—is profoundly unwise when defects and unfairness in the deployment of AI systems could create a backlash through a loss of trust or become, in the words quoted by the noble Baroness, Lady Sanderson of Welton, “another frontier of failure.”
The glittering prize for the UK is, in the words of the report, to be
“a frontrunner in the global race for AI while respecting human rights and the rule of law.”
I hope we hear a better response than we had in June and concrete plans now from the Minister.
Lord Paddick (LD)
My Lords, that was an extremely powerful contribution from my noble friend Lady Ludford, with which I wholeheartedly agree. I thank my noble friend Lady Hamwee, her eminent committee members and their officials for this impressive report, the importance of which cannot be overestimated. There have been equally impressive contributions from members of the committee, although not exclusively from them.
I am no Luddite. I am impressed by new technology and could be described in my own way as an early adopter of it, even if it is the new iPhone or the latest laptop—boys’ toys, as my noble friend just commented. Perhaps I get too excited by technology in the way that she mentioned. However, there are inherent dangers in the way that technology is being used in the criminal justice space that are a real cause for concern, as the report clearly points out and as noble Lords have described.
I do not know whether I am correct in thinking that, like direct and indirect racism, there are perhaps first and second-degree dangers in the use of advanced technology. As in the hackneyed phrase, when it comes to computers, of “Rubbish in, rubbish out”, there is a clear potential danger that artificial intelligence built on the results of biased policing and biased decision-making by the courts will be hard-wired into AI systems, as the noble Baroness, Lady Primarolo, said. Whether it is about the likelihood that a convicted person will reoffend or when used in connection with vetting inquiries, where racial bias in human decision-making is copied and pasted into AI systems, artificial intelligence also has the danger, for example, of being racially biased.
As my noble friend Lady Hamwee said, the report points out what I might call second-degree prejudice and discrimination, such as where AI is used to predict where volume crime might occur but not used to focus police resources on what used to be called white-collar crime, such as high-value fraud. This application bias has the danger of focusing police resources on poor neighbourhoods, where black and other minority ethnic people live, while majority white crime is seen to be even less solvable as the opportunities provided by AI to solve crime are focused elsewhere. The first-degree racism dangers in Durham’s predictor of how likely someone is to commit a crime in the future, or the Home Office sham marriage detector, should not overshadow the second-degree racism that might result from focusing advances in technology on the poor and disadvantaged.
It is not just having the mantra of “If you’ve done nothing wrong, you have nothing to fear” to downplay the harm caused by disproportionality in stop and search that we must be alert to, but that facial recognition technology is likely to give false positive results with women and black people. Operators that are not effectively regulated could load databases of political activists—or even images from Facebook groups that the system could be asked to trigger alerts for—allowing the police to track the individual movements of innocent citizens. That the city council of Santa Cruz in the United States placed a moratorium on the same live facial recognition software used by Kent Police between 2013 and 2018, because that council believed it endangered civil rights and civil liberties, and exacerbated racial injustice, perhaps indicates the dangers and how the UK is lagging behind other jurisdictions in addressing these dangers, as my noble friend Lord Clement-Jones said this evening.
I found the Information Commissioner’s remarks, quoted in the report, that every technology can create benefits or risks, depending on the context, governance and oversight measures, a little like the Chinese phrase “We live in interesting times”. It was fairly obvious but not particularly helpful, unlike the report, which not only shows how and where the governance and oversight measures are inadequate but, helpfully, recommends how and where they can be improved, as my noble friend Lady Hamwee described.
The report also points out that the courts are filling gaps in the legislation, something judges are reluctant to do. They want clear laws to interpret, not an absence of law that they then have to invent. I am reminded of going, as part of my Master of Business Administration degree, into the bank where my twin brother was a senior executive so we could act as quasi-management consultants and carry out a project on the system that the bank used to regulate salaries. The view of the operational arm of the bank was that the human resources department was holding back the business from moving forward, and that senior executives should be able to reward high performers outside the salary and grading structure.
Similarly, I appreciate how difficult it is for legislation to keep up with technological advances. However, given the erosion of civil liberties and, for example, the overpolicing of certain communities, that should not mean sacrifices just because, to quote Bill Heslop from the film “Muriel’s Wedding”, “You can’t stop progress!” That was his campaign slogan when he was running for political office and he did not win—not that I am suggesting that there are similarities between that character and my twin brother, or Kit Malthouse, the former Minister quoted in the report.
The report’s conclusions, that there is no clear line of accountability for the misuse or failure of technological solutions used in the application of the law and, as a result, no satisfactory recourse mechanisms, are worrying, together with the fact that there is a lack of transparency in the use of advanced technological solutions. Mandatory impact assessments are a safeguard, provided they are objective and independent.
Committee reports such as this one are a fundamental aspect of the work of the House, and we overlook them at our peril—this report perhaps more than many. As my noble friend Lady Hamwee said, the credibility of the criminal justice system could be at stake. As my noble friend Lady Ludford pointed out, the Government’s response could be described as complacent. I look forward to the Minister’s response saving the day by reassuring this Committee that he has taken on board the recommendations of this important report.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will start by outbidding the noble Lord, Lord Paddick: I too am an early adopter of technologies. In fact, I used to write algorithms and buy black boxes to use in various business contexts in my previous life as an engineer.
I have been reflecting on my various experiences, from my working life and my life as a magistrate, of what we have been talking about today. It is interesting that, as an engineer, I spent probably 15 years of my life doing this sort of technology but, when I eventually became a business owner and a chief executive, I did not use that technology in the business I ran; I was too sceptical of it. I occasionally commissioned work to be done, but it was absolutely not part of the business processes and decisions that I was making when I was the boss of a company.
To go back a bit further, to when I was working as a councillor in south-west London about 30 years ago, we were upgrading CCTV on the council estate where I represented people. It was an interesting exercise, because the councillors and the shopkeepers were in favour of it, but my friends who came from ethnic minorities were against it. There was a huge increase in CCTV technology on the estates I represented. Interestingly, that was also when the use of the hoodie became absolutely ubiquitous. All young people wore hoodies, partly because of the introduction of CCTV.
I have sat as a magistrate for 15 years and been through the whole experience of doing remote hearings in criminal, family and youth jurisdictions. We also use technology in various bits of the process we are considering, such as DNA and drug and alcohol testing. Interestingly, the Probation Service has its own predictive tools—which I do not think are AI based but are nevertheless predictive tools—on the likelihood of offenders to reoffend, and we read about those predictions in its reports and have to take them into account in our sentencing decisions. That has been a routine part of the sentencing exercise, if I can put it like that.
The one bit of technology which has made the biggest difference to my role as a magistrate has been body-worn video cameras. I think the Met Police invested well over £100 million in giving all operational police officers body-worn video cameras, and that has made a specific difference to the way in which we deal with domestic abuse cases. When police officers walk in through that front door and they are filming what they see in front of them, which of course you can then see in court, it makes a huge difference to the likelihood of getting a conviction. As we all know, very often the woman, who is usually the victim, does not want to go ahead and press charges. However, literally, when that front door is opened and a police officer walks in, you get a very different impression—a very realistic one—of the state of play in that house, if I may put it like that. That is one area where I have seen a huge improvement—I believe it is one—in the likelihood of getting convictions in domestic abuse cases.
To return to the debate and the report, I too congratulate the noble Baroness, Lady Hamwee, and all the members of the committee. This has been an extremely interesting debate. The officials are clearly very expert, and that is reflected in the debate itself. I was reading the recommendations of the report—I am not sure whether, in my role, I am supposed to say that I agree with them all wholeheartedly, but I do. The challenge put to the Minister to give a more sympathetic response than the official response that we have all read is fair, because the recommendations are born out of a great deal of work. The analogy with the health service and NICE, as my noble friend Lady Primarolo said, is a good one, and one could make other analogies with defence and other things like that, so why not in this context as well? I will be interested to hear the Minister’s answer to that question.
All the contributions to today’s debate have been exceptional. Again, my noble friend Lady Primarolo asked two questions of the Minister, on bringing together all 43 police forces to exchange information and look at the issues which they are facing, and on appointing an expert panel to look at the overall situation.
The noble Baroness, Lady Sanderson, also made a very good intervention. Her point about CAID—the identification of child abuse images—was interesting. As she said, that was a Home Office-developed and implemented technology that was done on a national scale, which of course is very different from what we are talking about in the context of this report.
As usual, my noble friend Lady Chakrabarti made an informed and provocative speech, if I may put it like that. As she said, we need to get into the black box—I thought that was the right way of putting it. That is what prompted me to talk about my previous business experience of the scepticism of sometimes buying pieces of kit when you know it is a black box; but when I was in a different position, I chose not to go down that route. As she said, we need a national body to look into those black boxes, because, ultimately, the fairness of the system is the most important thing.
As the noble and learned Lord, Lord Hope, said, ultimately, people need to believe that they are treated fairly, whether it is in a court, when they are charged or when they are in prison. They might not like what is happening to them, but they need to understand it and understand the process by which decisions are made about them. If they cannot do that, they will be far less likely to accept the results of a conviction, a prison sentence or whatever it is. So it is very much in all our interests that the technology is understood, and that people feel that the criminal justice system is treating them fairly.
I will conclude on this point: I have an insider’s look into the way that court hearings are conducted. In the vast majority of cases in one of the jurisdictions I am involved in, it is not legal or technology failures but administrative failures that lead to cases failing. That is a far more human element which has been underinvested in and which leads to a lack of faith in the criminal justice system. While we are talking about technology, we should not take our eye off the much bigger, more practical problem of administering our courts and criminal justice system in a reasonable way.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank all noble Lords who have spoken in the debate today and particularly the noble Baroness, Lady Hamwee, for securing the debate. I also thank those who contributed to the Justice and Home Affairs Committee’s thoughtful and insightful report, which has paved the way for today’s discussion.
As the noble Baroness has made clear, the Government responded to that report in June, but it is nevertheless welcome that we have found time to discuss these important matters more fully. I hope this is not the last time we cover the topic; I suspect it will not be. I will remark briefly on the broad thrust of the committee’s report and the Government’s position, as well as on points made during this debate, while also—I am afraid—having to join the noble and learned Lord, Lord Hope, by admitting that I am not much good with my thumbs either.
I am not sure that this line is going to qualify as “riding to the rescue”, but there is significant agreement between the Government and the committee on the challenges posed by advanced technology and how it is rolled out into the justice system. I am sorry if noble Lords feel that the government response was in some way a brush-off, but I am sure all your Lordships would agree that the technology is very complicated. The policing and justice sector and the ethics around balancing competing human rights are also very complicated. The public expect us to have a world-class justice system, and I think all noble Lords acknowledged this. Utilising technology is a cornerstone of this. The police must use technologies to free up officer time to fight crime, by making administration more efficient, and as a tool to hold those responsible for crime to account.
The Government are committed to empowering the police to use the latest technologies because the public support their use. However, there are no easy answers and the risk of acting without fully understanding the implications of these technologies and getting it wrong is very real. We are not presently persuaded by the overall recommendations put forward in the report, but the Government are committed to the spirit of improving consistency, maintaining public trust, ensuring sufficient oversight and empowering the police which sit behind those recommendations.
The subject of transparency was raised by my noble friend Lord Hunt and others. In their evidence, the Government were clear that transparency is not optional. The police themselves see and understand that being transparent is in their interests. We do not agree that we should mandate specific rules on transparency across such a wide range of current and potential future technologies and uses, but that does not mean we take it any less seriously.
Transparency is an important part of data protection laws. Our policing model works only if there is public consent. For the public to consent, as the noble Lord, Lord Ponsonby, has just pointed out, they must be engaged. It is in the police’s interest to hold conversations and be open about what they are doing and why. Several police forces are working with the Centre for Data Ethics and Innovation to explore how the algorithm transparency standard may work for them. We welcome it as one tool that could promote the sharing of best practice, but transparency can come in many forms. Our position is that mandating a set of rules could restrict what information is ultimately provided to the public and risks turning transparency into a tick-box exercise.
Instead, we will continue to help the police to collaborate with experts and identify how they can be transparent in a way that allows scrutiny, both at a technical level by those with expert knowledge and at an ethical level by the wider public. There is no point being transparent if what is said cannot be understood. We are in agreement that the question of ethics is of fundamental importance, and the ethics of acting or using technology is not something to be considered lightly.
We have heard how important the roles of accountability and oversight are at each stage of the system. I would caution that a statutory ethics panel, as proposed in the report, may decrease democratic oversight because such powers could override local decision-making, local accountability and locally elected officials, but I note the particular reference to the West Midlands Police example. We are not persuaded that the creation of a national statutory ethics committee is the best way to bring expert insight into police practice, but we will continue to work with colleagues in policing to develop and support non-statutory models.
Our democratic system, and ultimately Parliament, is here to provide scrutiny and oversight. The committee’s report is proof of that, as is today’s debate. It is right that our institutions are held to account, especially in relation to the complex and important issues we have discussed today. The committee’s report noted that, below this, there are a range of oversight bodies tasked with providing oversight on various aspects of how the police use technology. We recognise the risk of overlap and confusion, which is why we have proposed in the Data Protection and Digital Information Bill to simplify the arrangements for biometric and surveillance cameras, because, ultimately, it is individuals, not technology, who take the key decisions within the justice system. Technology may be used to generate insights, but the decision to arrest will always remain with the officer, while the courts will decide what material can be given in evidence in determining guilt and any sentence. The Government will continue to support work to equip and educate the individuals working within the justice system so that they understand the technologies they use and how to use them correctly.
My noble friend Lord Hunt and others raised governance and accountability. On accountability, I think the question was who is responsible when things go wrong—who has the day-to-day responsibility for governance? There are existing regulations covering the responsibilities of parties when undertaking a procurement and when working together to provide a service. Depending on the issue, it may be addressed in different ways: illegal activity may be a criminal offence; other unlawful activities, such as a data protection breach, would be an issue for regulators; and poor performance should be mitigated against at the contractual level.
The public expect the police to innovate. They have to be allowed to do so within the law, so decisions on what technologies to use are highly operational ones for the police, independent of government. However, the police need to act within the legal framework set out by Parliament, and bans are in place where they are proportionate to the risk, such as in cases where the technology poses a risk of lethal or less than lethal force. This is not the same level of risk as that associated with the types of technologies raised in the report.
Chief constables ultimately decide when and how to use new technologies. However, they and their PCC are advised, regulated and overseen by a range of technical and regulatory bodies. The police chief scientific adviser, who I will come back to, advises chief constables on important matters such as good education. The ICO can and will take action where there is a lack of compliance with data protection laws. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a duty to consider how forces are meeting the Peelian principles, of which the use of technology is of course a part. HMICFRS undertakes thematic reviews based on its local inspections, and the use of technology is an area which could merit specific analysis.
The noble Baroness, Lady Primarolo, asked about individual complaints challenging the use of technology. Challenging the use of technology in the courts is certainly a resource-intensive process, and it is best reserved as a solution when the circumstances are exceptional. However, individuals can report concerns through other avenues, and we encourage them to do so. Where there are concerns over necessity, proportionality or a policing justification, they could be raised with HMICFRS, which has a mandate to consider how professional standards are applied in its reports and investigations. If the matter relates to how individuals within policing are using technology and their behaviour, this may be something to take forward with the independent police complaints authority. Concerns related to fairness, equality or rights can be raised with the Equality and Human Rights Commission, while the Information Commissioner’s Office is well placed to investigate questions of data protection and privacy.
Noble Lords have acknowledged that the police are operationally independent, which is an essential principle of our system. Nevertheless, we are also alive to the need to ensure that law enforcement is given appropriate support in adapting to technological change and advancements. The role of the police chief scientific adviser, to which I have referred, was created to give policing a scientific capability, establishing a dedicated place for advice on how to innovate, test technologies and ensure that tools do what they claim. Since being appointed, the chief scientific adviser has led reform of how the sector works with the scientific community and is developing a strategy for science and technology. The NPCC’s science and technology strategy will strengthen how the police approach using validated and cutting-edge science in their mission to protect the public. The Government support this strategy and encourage its successful adoption. Those using the technology and impacted by it must be confident that it works as it should.
The Home Office is investing in policing to strengthen the technical evidence available on the most promising future technologies, as well as helping in the commission of research by the Defence Science and Technology Laboratory, which tests functional performance. Confidence in the scientific basis and validity of the technology being used is only part of the picture: there must also be confidence in the operational practice.
The wider question of technology in the justice system is clearly an area in which it is important constantly to develop best practice and future guidance. We agree that clear and consistent advice is essential to allow innovation. To this end, the sector is developing its repository of guidance and information. For example, the College of Policing published national guidance on live facial recognition earlier this year. The Government will support the sector to stay on the front foot in addressing specific technologies, as needed.
An approach centred on the “Move fast and break things” mantra may work for innovation in the Silicon Valley, but it would not be appropriate in the context of UK law enforcement. So we have no wish to break the system establishing the rule of law, which of course dates back a very long time. That is not to say that the Government intend to sit back and be solely reactive, but proactively regulating brings its own risks. Mandating standards without consensus in the sector on what it needs may turn certification into something that is easily gamed by bad actors, opening up public authorities to harm.
So, although I happily acknowledge that there will be an opportunity for someone to set global standards, at the moment the Government are of the opinion that certification, or kitemarking, can create false confidence in the validity of a technology. We want to ensure that responsibility for using lawful technologies is not delegated to a certification process that may be gamed. Within our existing regulatory model, the police have a responsibility to use products that are safe and meet the high ethical tests set out in the data protection, human rights and equalities legal framework.
Assessing proportionality and necessity, even if the technology works, depends on the unique factors of each use case. Organisations should not hide behind regulations or certification when it comes to deploying new technologies responsibly. The police must make justifiable decisions during procurement, development and deployment, reviewing them regularly. The current legal framework places responsibility for how to do that firmly on the organisation. However, in addition to the Centre for Data Ethics and Innovation, the Government have established an AI standards hub to help to promote good practice. But the responsibility and accountability that organisations face are theirs alone.
Although we did not generally share the committee’s overall approach of more and more legislation, we will act when the need is clear. We are confident that the regulatory model is proportionate and mature. We have established a statutory code for digital forensics and placed the forensic services regulator on a statutory footing. As practice consolidates around specific standards, we will continue to learn from the relevant experiences and engage with wider learning from sectors such as healthcare.
Someone, but I am afraid I have forgotten who, asked: does it actually work? The answer is yes. I have a large number of examples but in the time available I will provide one: all forces use facial recognition retrospectively. South Wales Police produces around 100 identifications a month, which, as a noble Lord—I forget who—noted, reduces certification time from 14 days to a matter of hours. South Wales Police and the Met have also used live facial recognition technology and successfully disrupted things like mobile phone theft gangs, with no reported thefts at rock concerts, for example, and there were 70 arrests overall during various trials, including for offences as severe as rape, robbery and other forms of violence.
The noble Lord, Lord Clement-Jones, raised the Bridges case. That was a compliance failure by South Wales Police. The court confirmed that there was a legal basis in common law and a legal framework including human rights, data protection and equalities law, in which live facial recognition and, by extension, other technologies could be usefully carried out. Since the judgment, the College of Policing has published an authorised professional practice clarifying the “who” and “where” questions.
On the question of potential bias, noble Lords will be interested to know that the US National Institute of Standards and Technology, which is generally recognised as the world’s premier outfit of this type, found that the algorithm that South Wales Police and the Met use shows almost indetectable bias.
The Committee may have noticed that I am slightly between focus ranges with or without glasses, which is making life rather complicated. I wish I were relying on technology at this point.
I was asked about live facial recognition as an example. I have just mentioned that the College of Policing authorised professional practice guidance on live facial recognition. That requires chief officers to ensure training within the force on the following: how to respond to an alert; the technical capabilities of live facial recognition; the potential effects on those subject to the processing; the core principles of human rights; and the potential impact and level of intrusion on each subject.
The adoption of live facial recognition standards serves as an example of where practice has moved quickly over the last few years following legal scrutiny and greater public discourse. The sector learned from the early pilots to test, improve and evolve policies following feedback. The pilots of this tool were just that—early tests. Now that more evidence is available and the maturity of the capability is advanced, we can analyse how the legal framework is working. This process points to the strength of our legal framework as it has driven the improvement of standards without suffocating innovation.
My noble friend Lady Sanderson and the noble Baroness, Lady Ludford, asked about DCMS and cross-departmental working. The answer is that we work very closely. The Home Office is also part of a pilot looking at how the algorithm transparency standard works for the department’s own activities. As for the White Paper, it will come some time next year but I am afraid I do not have a specified date.
I thank all noble Lords who have contributed to this fascinating debate. I extend my thanks again to the committee for all the work and insight that went into producing a thorough and engaging report on these very complex issues. We do not fully agree on the way forward in terms of specific steps, but I am confident in suggesting that there is a broad consensus about the need for a long-term approach. Whether that stops noble Lords being disheartened, I do not know.
For the Government’s part, we will continue to look at the entirety of the system and seek to encourage improvements at each stage, with a focus on developing policy to ensure that the benefits of new technology are realised throughout the justice system. As the report laid out so clearly, there is no option to pause or stand still. The issues discussed today are of fundamental importance to the safety and security of our citizens and our values, and I look forward to continuing our engagement on these matters.
Baroness Hamwee (LD)
My Lords, there are more recommendations and conclusions in our report which any of us could have spoken to today, but noble Lords have covered a great deal of ground and I thank them all.
Our thanks go to the staff who supported this inquiry: Sam Kenny, our then clerk, and Achille Versaevel, our policy analyst, who, in truth were the authors; Amanda McGrath, who kept everything in order including the members; Aneela Mahmood, who got us coverage in an astonishing number of media outlets; David Shiels, our present clerk; and Marion Oswald, our enormously knowledgeable specialist adviser, who seems to know everyone. Of course, thanks also go to the people who gave us such powerful evidence. I thank the Alan Turing Institute, which hosted last week’s workshop, attracting contributors with such expertise, who I wish were sitting behind me, passing me notes of critique of what we have just heard. That workshop felt like an important validation of our work. My thanks go to all members of the committee, with whom I thoroughly enjoy working. None of their contributions is small.
We were drawn to the topic because of the lack of a legal framework, the rule of law and the potential for injustice—principles which must continue to apply. The speeches today have confirmed these and that the committee appreciates the use of AI. We have not been dismissive of it.
I thought that the noble Lord, Lord Hunt, might refer to the thalidomide case. It was mentioned at the workshop, where the point was made that it is essential to get the tests of a product right, otherwise compliance with the test is used as the defence to a claim.
I have been subjected to a type of AI at the border, where I could get through only when I took off my earrings, because I had not been wearing the same earrings when the passport photo was taken. That is such a minor example, but I felt quite rejected.
I have to say that I thought my noble friend Lord Paddick was going to say that the technology let him range freely through his twin brother’s bank because he thought he was his twin brother.
I do not think that the noble and learned Lord, Lord Hope, should begin to be apologetic about having no technical expertise. In a way, that is the point of our report. The judiciary was very much among those we regarded as affected by the use of AI.
The pace of development was referred to; it is enormous. The issues will not go away, which makes it all the more important that we should not be thinking about shutting the stable door after the horse has bolted or letting the horse bolt.
I thank the Minister for his response. It is not easy to come to this when many of us have lived with it for a long time. To sum up his response, I think the Government agree with our diagnosis, but not what we propose as the cure. We have to make transparency happen. He says it is not optional, but how do we do that, for instance?
There was a good deal of reference in his response to the public’s consenting, policing needing consent and the Peelian principles, but he then listed a number of institutions, which, frankly, confirmed our point about institutional confusion. On ethics and his point that a statutory body could override a democracy, that is not how any of the ethics organisations approach it. It is about closing the stable too late if one addresses specific technology as it is needed.
A commitment to the spirit of the report gets us only so far; it does not leave the Wild West way behind in our rear-view mirror. We will indeed come back to this, maybe when we get the new data protection Bill. This is not an academic issue to be left in a pigeonhole unconnected with issues current in Parliament—I need only say: the Public Order Bill.