Data Protection and Digital Information Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 24th April 2024
(7 months ago)
Grand CommitteeData Protection and Digital Information Bill 2022-23 View all Data Protection and Digital Information Bill 2022-23 Debates Read Hansard Text Amendment Paper: HL Bill 30-VII Seventh marshalled list for Grand Committee - (23 Apr 2024)
Lord Clement-Jones (LD)
My Lords, it has been a privilege to be at the ringside during these three groups. I think the noble Baroness, Lady Sherlock, is well ahead on points and that, when we last left the Minister, he was on the ropes, so I hope that to avoid the knock- out he comes up with some pretty good responses today, especially as we have been lucky enough to have the pleasure of reading Hansard between the second and third groups. I think the best phrase that noble Baroness had was the “astonishing breadth” of Clause 128 and Schedule 11 that we explored with horror last time. I very much support what she says.
The current provisions seem to make the code non-mandatory, yet we discovered they are without “reasonable suspicion”, the words that are in the national security legislation—fancy having the Home Office as our model in these circumstances. Does that not put the DWP to shame? If we have to base best practice on the Home Office, we are in deep trouble.
That aside, we talked about “filtering” and “signals” last time. The Minister used that phrase twice, I think, and we discovered about “test and learn”. Will all that be included in the code?
All this points to the fragility and breadth of this schedule. It has been dreamt up in an extraordinarily expansive way without considering all the points that the noble Lord, Lord Anderson, has mentioned, including the KC’s opinion, all of which point to the fact that this schedule is going to infringe Article 8 of the European Convention on Human Rights. I hope the Minister comes up with some pretty good arguments.
My final question relates to the impact assessment–or non-impact assessment. The Minister talked about the estimate of DWP fraud, which is £6.4 billion. What does the DWP estimate it will be after these powers are implemented, if they are ever implemented? Should we not have an idea of the DWP’s ambitions in this respect?
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Viscount Younger of Leckie) (Con)
My Lords, this has been a somewhat shorter debate than we have been used to, bearing in mind Monday’s experience. As with the first two groups debated then, many contributions have been made today and I will of course aim to answer as many questions as I can. I should say that, on this group, the Committee is primarily focusing on the amendments brought forward by the noble Baroness, Lady Sherlock, and I will certainly do my very best to answer her questions.
From the debate that we have had on this measure, I believe that there is agreement in the Committee that we must do more to clamp down on benefit fraud. That is surely something on which we can agree. In 2022-23, £8.3 billion was overpaid due to fraud and error in the benefit system. We must tackle fraud and error and ensure that benefits are paid to those genuinely entitled to the help. These powers are key to ensuring that we can do this.
I will start by answering a question raised by the noble Lord, Lord Anderson—I welcome him to the Committee for the first time today. He described himself as a “surveillance nerd”, but perhaps I can entreat him to rename himself a “data-gathering nerd”. As I said on Monday, this is not a surveillance power and suggesting that it is simply causes unnecessary worry. This is a power that enables better data gathering; it is not a surveillance or investigation power.
The third-party data measure does not allow the DWP to see how claimants spend their money, nor does it give the DWP access to millions of people’s bank accounts, as has been inaccurately presented. When the DWP examines the data that it receives from third parties, this data may suggest that there is fraud or error and require a further review. This will be done through our normal, regular, business-as-usual processes to determine whether incorrect payments are indeed being made. This approach is not new. As alluded to in this debate, through the Finance Act 2011, Parliament has already determined that this type of power is proportionate and appropriate, as HMRC already owns similar powers regarding banking institutions and third parties in relation to all taxpayers.
I listened very carefully to the noble Lord and will, however, take back his points and refer again to our own legal team. I think the point was made about the legality of all this. It is a very important point that he has made with all his experience, and I will take it back and reflect on it.
Lord Anderson of Ipswich (CB)
I take the Minister’s point and I will settle for the appellation “investigatory powers nerd”; I am quite happy with that. Does the Minister agree with me, however, that the legal difficulty —we see this with the other bulk powers already in our law—is that Article 8 of the European convention locks in not when a human eye gets stuck into the detail, but as soon as a machine harvests the data in bulk? Most of that data relates to people in respect of whom there could be no possible suspicion. Satisfying the requirements of necessity and proportionality must be done even at that stage. I understand that that is awkward and I am sure a lot of people would prefer that it was otherwise, but that is, as I understand it, the law. That renders the distinction that the Minister seeks to draw between data gathering and surveillance perhaps slightly difficult to maintain.
Viscount Younger of Leckie (Con)
If I may just answer that question from the noble Lord, Lord Anderson; I think it is important to take one question at a time.
I have every sympathy with what the noble Lord has said. As I mentioned on Monday, points could easily raised about that—I think it may have been the noble Baroness, Lady Kidron, who raised points about computers and their robustness. This is the very point that we agree with. It is incredibly important and we have started already to draw up a proper code of practice to work with the banks on how this will actually work. We need continued time to work these issues through. I also made the point on Monday that, at the end of the day, a human being will be there—must be there—to determine where we go from there.
Lord Anderson of Ipswich (CB)
In relation to the code of practice, which I am glad the Minister mentioned, we have just seen the Investigatory Powers (Amendment) Bill through this place. It makes some relatively minor changes to the powers of the intelligence agencies to harvest data in bulk and, to ensure the orderly passage of that Bill through both Houses of Parliament, the key excerpts of the draft code of practice were made available before Committee in either House to enable it to be properly scrutinised. We seem to have left it terribly late in the day still to be talking about a draft code of practice on this Bill, which we have not even seen. Can the Minister assure us that before we come to Report, that code of practice will be available in draft?
Viscount Younger of Leckie (Con)
Indeed, I was going to come on to that later in my remarks, particularly to address the points raised by the noble Baroness, Lady Sherlock. We need the necessary time to continue to develop this code of practice, and that is particularly important in respect of this measure. The answer is no, I cannot guarantee to have the code of practice ready by Report. Indeed, I am saying that it will be ready sometime in the summer. It is important to make that point but also a further one, which is that there are many instances, as the noble Lord will know, when a code of practice is finalised and brought forward after the primary legislation is brought through, and this is one of those cases. That is not abnormal but normal. The noble Lord may not like it but there is considerable precedent for that to happen.
Lord Bassam of Brighton (Lab)
I have a question. I am slightly puzzled about the difference between data collection and surveillance. Surely the collection and gathering of data would be to enable officials to survey someone’s bank account. If that is not the case, what is the purpose of collecting the data if not to interrogate the behaviour of an individual to understand how their money is being brought in and spent, so that the department can exercise some judgment over whether the individual is revealing the truth about their income and outgoings?
Viscount Younger of Leckie (Con)
Indeed, I think we are going back to the debates that we had on Monday. However, this chimes with a question from the noble Lord, Lord Clement-Jones, so it might be helpful briefly to rehearse what we are doing here and to be clear about the limitations and the checks and balances on the power that we are bringing forward.
As per paragraph 1(2) of Schedule 11 to the draft legislation, the DWP can use this power only for the purposes of checking whether someone is eligible for the benefit that they are receiving. In practice, this means that the DWP will request information only on specific criteria, which I laid out on Monday, linked to benefit eligibility rules, which, if met may—I emphasise “may”—indicate fraud or error. If accounts do not match these criteria, no data will be shared with the DWP. The effect of paragraphs 1 and 2 of the draft legislation is that the DWP can ask for data only where there is this three-way relationship between the DWP, the third party and the recipient of the payment. In addition, the DWP can ask for data only from third parties designated in secondary legislation, subject to the affirmative procedure. There are debates to come as further reassurance to your Lordships.
As per paragraph 4(2) of Schedule 11 to the draft legislation, the power does not allow the DWP to share personal information with third parties, which means that the power can be used only with third parties who are able to identify benefit recipients independently. Just to add further to this, we are obliged, under Article 5(1)(c) of the UK GDPR, to ask only for the minimum of information to serve our purposes. In accordance with the DWP’s existing commitments on the use of automation, no automatic benefit decisions will be taken based on any information supplied by third parties to the DWP. As I said earlier and on Monday, a human will always be involved in decision-making. I hope that helps.
Lord Stevenson of Balmacara (Lab)
I am sorry to interrupt the noble Viscount, but I just want to be clear about what he is saying in relation to the code of practice, which obviously is at the heart of this section of the debate, although there will be other things to come. Am I right that he said—obviously he has to cover himself—that there is a chance that the Report stage of this Bill might be entered into before we have sight of the draft code of practice? He makes the point that that is not an unusual occasion. I understand that—we have both served in Parliament long enough to know that that is the case—but this is clearly an issue on which the Committee has made very strong representations to the Government. Will he do what is in his power to make sure that we do not enter Report without seeing at least an early draft, if that is possible, of the code of practice?
Viscount Younger of Leckie (Con)
I will certainly take that back. I do not want to make any commitments today. I have already set out our stall as to where we are. I make the further point—I am perhaps repeating myself—that given the sensitivities that there clearly are, which I have been listening to carefully, it is important that this code of practice is developed at a pace that is right for what is needed, in bringing those involved along and making sure that it is right, secure, safe and with all the safeguards involved. It is quite a serious piece of work, as noble Lords would expect me to say. I will take that back. I will certainly not be able to guarantee to produce anything before Report, which may disappoint the noble Lord, but at least I have gone as far as I can. I hope that that is helpful.
Lord Stevenson of Balmacara (Lab)
I am grateful to the noble Viscount. This is just a thought, but we are happy to help, as we often have done in the past on other Bills. If there is any opportunity for us to be shown early drafts, to give some help and assurance to the noble Viscount that he is on the right track, I am sure that that would be accepted.
Viscount Younger of Leckie (Con)
I appreciate the tone of the noble Lord and, if there is anything that comes from behind me before I conclude my remarks, to be helpful, I will certainly do that.
Our debates on this measure have covered many issues. This group, as mentioned earlier, focuses primarily on the operational delivery of the power, so it would be quite good to move on. Just before I do, for the benefit of the noble Lord, Lord Anderson, in terms of the late introduction—his words—of this measure, as mentioned on Monday the DWP published a fraud plan in May 2022, where it outlined a number of new powers that it would seek to secure when parliamentary time allowed. In the parliamentary time available, DWP has prioritised our key third-party data-gathering measure, which will help it to tackle one of the largest causes of fraud and error in the welfare system. That is a short version of what I said on Monday, but I hope that it might be helpful.
Before I turn to the amendments, it might be helpful to set out how the legislation will frame the delivery of this measure. When we issue a request for data to a third party or, as it is set out, an account information notice or AIN, which is in the Bill, we can only ask it to provide data where it may help the DWP to establish whether benefits have been properly paid in accordance with the rules relating to those benefits. As mentioned earlier, this is defined clearly at paragraph 1(2) of the new schedule. This is where the data that DWP receives may signal—to use the word raised by the noble Lord, Lord Clement-Jones—potential fraud and error. The noble Lord asked for further clarification on that point. To be clear, a signal of fraud and error is where the rules of benefit eligibility appear not to be met. For example, this might be where a claimant has more capital than the benefit rules allow. As I made clear on Monday, all benefits and payments have rules that determine eligibility, which Parliament has agreed are the right rules in its consideration of other social security legislation. To issue an AIN, we must also have designated a third party in affirmative regulations, which need to be passed by both Houses.
As has been covered, we can also only request data from third parties where there is this relationship, which I will not repeat again and which I think the Committee will be familiar with. Our intention is to designate banks and financial institutions as the first third parties that we can approach, enabling us to request information on accounts only held in the UK. Just to clarify that point, we will not be able to request information on overseas accounts.
On the question raised by the noble Baroness, Lady Sherlock, on examples of non-financial organisations that the power could appropriately be used on, we will bring forward regulations to specify the data holders in scope. I hope that this is helpful. In the first instance, this will be, as mentioned, banks and financial institutions. The power also has potential use cases with other third parties, such as housing or childcare providers, but, just to reassure the Committee, this would be subject to further parliamentary approval.
Lord Anderson of Ipswich (CB)
I am grateful to the Minister—I am just trying to catch up. On the point that he made about regulations, I imagine that the power to prescribe the descriptions of persons to whom an account information notice may be sent comes under paragraph 1(1) of the schedule. I think that that is what he was saying. In paragraph 2, on the content of the account information notices, there is a reference to
“other specified information relating to the holders of those accounts, and … such further information in connection with those accounts as may be specified”.
Does that simply mean anything specified in the account information notice or is there a power to make regulations that will limit the types of information that can be specified in an AIN?
Viscount Younger of Leckie (Con)
Again, I hope that I might have covered this earlier. If I read the noble Lord’s question correctly, the definitions will need to be debated by both Houses. I have made clear what we are bringing in at the moment for banks and financial institutions, but this will need to be looked at by both Houses in future. I hope that that is clear.
Lord Anderson of Ipswich (CB)
I apologise; I did not make myself clear. I think that we are on entirely the same wavelength on the persons to whom an information notice can be given; the Minister has reassured us that they will be specified in regulations and considered by both Houses. My question relates to the content of an account information notice under paragraph 2 and the very broad references to “other specified information”, “such further information” and so on. I did not read that as a regulation-making power. I rather assume that the discretion over the choice of information that is specified remains entirely at large. If the Minister is saying that there will be regulations that will specify the information that an AIN can include, hence mitigating the breadth of paragraph 2, I would be glad if he could make that clear.
Viscount Younger of Leckie (Con)
My understanding —with his experience, I am sure that the noble Lord will be ahead of me on this—is that this is defined. We define it pretty clearly in paragraph 1(2). In the interests of time, I will reflect on what he has asked and will be absolutely sure to add this to the letter that I pledged to write on Monday—it is getting bigger by the moment, as I fully expected.
Baroness Sherlock (Lab)
My Lords, as I asked only four questions, I want to try to nail each one as we go. I am grateful to the Minister. Before we leave the matter of the kind of organisations to which this applies, I think that he is saying that the Bill would allow the DWP to request information from any kind of organisation, including phone companies, which I asked about specifically. The kinds of organisations are to be specified in regulations, which the Government will bring forward, initially naming financial institutions. By virtue of further regulations, could they extend that to anything—to Garmin, the people who monitor your runs, to gyms and to anyone else? Is that correct?
Viscount Younger of Leckie (Con)
That is correct. I hope indeed that it provides some reassurance that extending it to the banks and financial institutions initially is deliberately designed to be narrow. It would be subject to both Houses to debate other areas beyond those. I am coming on to address that. The noble Baroness asked about phone companies. Simply put, we will be able to designate the third parties that fit within the provisions of this legislation where they hold information that would help us to verify whether someone meets the eligibility criteria for the benefit that they are receiving. However, ultimately, it would be for Parliament to decide whether a third party can be designated under this power, as we must bring affirmative regulations forward to do this. We have that power.
Lord Davies of Brixton (Lab)
To be clear, they already have some information about claimants or recipients. Does this Bill make any difference to that information? Can they already use the information that they have for these purposes, for example the name and address of a claimant’s bank account, or does this Bill extend the use of information to other information that they already have?
Viscount Younger of Leckie (Con)
Indeed, that is correct. I hope that is helpful and gives the noble Lord reassurance. To clarify, we have our normal business-as-usual processes so, where we are able to—with the restriction of not at present being able to use the banks and financial institutions as a conduit—we have those powers. However, obviously, as has been made clear by the ICO, there is no alternative to needing the help of banks and financial institutions to go further in tackling the ever-greater sophistication of fraud.
The noble Baroness, Lady Sherlock, asked whether we could issue an AIN to a bank other than that into which the benefit is paid. The answer is no. The power is exercisable only in respect of a matching account that meets the criteria in an AIN and receives a benefit payment. If this is not the case, the Secretary of State cannot require them to supply that information.
When it comes to issuing an AIN, DWP will be able to exercise these powers only for payments for which it is responsible. This means that DWP cannot exercise this power with some benefits that fall under the legislation, such as child benefit, as was mentioned on Monday. I know that the noble Baroness, Lady Sherlock, raised this issue. As I committed to do on Monday, I will provide in writing more detail on the scope of the measure and on these limitations, which will require more time.
I will also ensure that my letter is clear on how the measure will impact appointees, joint claims and other such accounts. I am well aware that a number of questions were asked about this matter on Monday but, in the interests of time, I will move on.
I turn to proofs of concept. I also want to speak about our approach to delivery, in particular how we plan to test delivery before we gradually scale up operational delivery; I am aware of the time, but I hope that the Committee will indulge me. Our planned period of “test and learn” will build on our learning from our two previous proofs of concept, which we conducted in 2017 and 2022. These demonstrated the effectiveness of this approach and contributed to the OBR’s certification that the measure will save up to £600 million over the next five years.
The two proofs of concept that I mention are important. I hope that the Committee will be interested to read the results, which demonstrate why we need to do this. Without further ado, let me say that I will set out the details of these two examples in the letter as well, which will, I hope, be helpful.
The noble Lord, Lord Vaux, who is in his place, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Sherlock, spoke about the regulatory impact assessment on Monday. I just want to use this time to reassure them on that. More information on these proofs are contained within the RIA, which was, as noble Lords will know, green-rated by the RPC.
On “test and learn”, we have a clear view on how this power may work. We are already working with third parties in readiness to commence the formal “test and learn” period in early 2025 and preparing the code of practice in advance of that. I will come on to that in just a second—in fact, I will come on to it right now, given the time. I shall refer to Amendments 225 to 232 in the name of the noble Baroness, Lady Sherlock.
To support the delivery of this measure, we will produce the code of practice to help define how the measure will work, with explanations. I assure the noble Baroness and the Committee that the code of practice is already in development; we are working positively with around eight leading financial institutions through an established working group that meets regularly to shape the code. We are fully committed to continuing that work; I think I covered the timing of that earlier in my remarks. Accepting Amendments 225 and 226 in the name of the noble Baroness would therefore, we believe, have minimal effect. I am clear that DWP will produce a code of practice, which will be consulted on; I have also set out the sort of detail that it will contain. Accepting them may also potentially restrict our ability to develop the code of practice further as we understand more from “test and learn”.
Because we are developing this collaboratively with banks, I am not yet in a position to share the draft code, as I mentioned; I have given certain reassurances on that. However, I can say that it will provide guidance on issues such as the nature of the power and to whom it will apply. It will also provide information on safeguards, cover data security responsibilities and provide information on the appeals processes should a third party wish to dispute a request. We will engage with SSAC, to help the noble Baroness, Lady Sherlock, as we bring forward the affirmative regulations. On balance, I believe that the best course is to consult on the code of practice rather than rushing to define it now.
Baroness Sherlock (Lab)
I am most grateful to the Minister. There is one question, so I apologise if he answered it and I did not quite pick it up. I specifically asked if these powers would allow the DWP to devise criteria designed to identify if a claimant was in fact living with another adult. With the appropriate regulation, would the powers allow it to do that?
Viscount Younger of Leckie (Con)
That is one of the questions that I can now answer. The power will allow this, in so far as it pertains to helping the Secretary of State establish whether the benefits are being paid properly, as with paragraph 1(2) of new Schedule 3B. Rules around living together are relevant only to some benefits. That is a very short answer, but I could expand on it.
Baroness Kidron (CB)
May I add to the very long letter? I have been sitting here worrying about this idea that one of the “signals” will be excess capital and then there are matching accounts. If the matching account has more capital—for example, the person who has a connected account is breaking the £16,000 or £6,000—does that signal trigger some sort of investigation?
Viscount Younger of Leckie (Con)
That is a very fair question, and I hope that I understand it correctly. I can say that the limit for the DWP is that it can gain only from what the third party produces. Whatever goes on behind the doors of the third party is for them and not us. Whether there is a related account and how best to operate is a matter for the bank to decide. We may therefore end up getting very limited information, in terms of the limits of our powers. I hope that helps, but I will add some more detail in the letter.
Lord Clement-Jones (LD)
My Lords, the Minister extolled the green-rated nature of this impact assessment. In the midst of all that, did he answer my question?
Lord Clement-Jones (LD)
I asked about the amount of fraud that the Government plan to detect, on top of the £6.4 billion in welfare overpayments that was detected last year.
Viscount Younger of Leckie (Con)
The figure that we have is £600 million but, again, I will reflect on the actual question that we are looking to address—the actual amount of fraud in the system.
Lord Clement-Jones (LD)
The Minister is saying that that figure is not to be found in this green-rated impact assessment, which most of us find to be completely opaque.
Viscount Younger of Leckie (Con)
I will certainly take that back, but it is green rated.
Lord Vaux of Harrowden (CB)
My Lords, the Minister was kind enough to mention me a little earlier. Can I just follow up on that? In the impact assessment, which I have here, nowhere can I find the £600 million figure, nor can I find anywhere the costs related to this. There will be a burden on the banks and clearly quite a burden on the DWP, actually, if it has got to trawl through this information, as the noble Viscount says, using people rather than machines. The costs are going to be enormous to save, it would appear, up to £120 million per year out of £6.4 billion per year of fraud. It does seem odd. It would be really helpful to have those cost numbers and to understand in what document they are, because I cannot find in the impact assessment where these numbers are.
Viscount Younger of Leckie (Con)
I hope I can help both noble Lords. Although I must admit that I have not read every single page, I understand that the figure of £500 million is in the IA.
Viscount Younger of Leckie (Con)
Yes, £500 million. I mentioned £600 million altogether; that was mentioned by the OBR, which had certified this, and by the way, that figure was in the Autumn Statement.
Lord Clement-Jones (LD)
My Lords, has not that demonstrated the disproportionality of these measures?
Baroness Jones of Whitchurch (Lab)
The noble Viscount explained in response to the noble Lord, Lord Anderson, that at every stage where the powers are going to be expanded, it would come back as an affirmative regulation. I might have been a bit slow about this, but I have been having a look and I cannot see where it says that. Perhaps he could point that out to me, because that would provide some reassurance that each stage of this is coming back to us.
Viscount Younger of Leckie (Con)
I understand, very quickly, that it is in paragraph 1(1), but again, in the interests of time, maybe we could talk about that outside the Room.
Lord Clement-Jones (LD)
Could the Minister clarify: was that paragraph 1(1)?
Viscount Younger of Leckie (Con)
I can reassure the noble Lord that that is the case, yes.
Lord Anderson of Ipswich (CB)
I do not know whether I can help. I agree with the noble Baroness: I do not think it is very clear from paragraph 1(1) that there is a regulation-making power. However, if you look at paragraph 5 of the new schedule, there is a reference there to regulations under paragraph 1(1) as well as two other paragraphs of the schedule. That is the rather tortuous route by which I came to the conclusion that the Minister is quite right.
Viscount Younger of Leckie (Con)
I reassure noble Lords that is correct—it is paragraph 1(1). It may be rather complex, but it is in there, just to reassure all noble Lords.
Lord Clement-Jones (LD)
I am sorry to keep coming back, but did the Minister give us the paragraph in the impact assessment that referred to £500 million?
Viscount Younger of Leckie (Con)
No, I did not, but that is something which surely we can deal with outside the Room. However, I can assure noble Lords that it is in there.
Baroness Sherlock (Lab)
My Lords, I thank the Minister for his attempts to answer my questions and those of many noble Lords. I will not detain the Committee for very long at all.
I am grateful to know that there will be a code and that it will be consulted on. Given that, it would have saved an awful lot of trouble if the Government had simply not put “may” in the Bill in the first place—that would have cut out a whole loop of this. I am very grateful to know that that is there. I agree with the Minister that we all want to know about and to clamp down on fraud and error; the question is one of proportionality.
When the Minister comes to write—I realise that this letter is turning into “War and Peace”, but it will make us all come to Report in a much better place if we can get a clearer answer to many of these questions— I still wonder whether he properly answered the question from the noble Lord, Lord Anderson, about the legality of these powers, because the point about when they engage is crucial. The Minister is still coming back to a distinction between the gathering of the data and what the DWP will do using its existing “business as usual” powers, to investigate. I think the point the noble Lord was making is that the question of legality engages at the point of that data gathering, not at the point at which it is used, if I am correct. I am not sure that the Minister answered that—I am not inviting him to do it now—but I specifically suggest that he takes advice on that point before we come back on Report.
The other issue is that, if the Government have come in so late in the day introducing these powers into the Bill, it would have been better to have draft regulations before Report at the first stage. The Minister thinks the code can be available in the summer, but the summer is fast approaching so I see no reason why the usual channels could not accommodate the date for Report to allow us to go past the date for producing a draft code if the Government wish to. I realise that they may not wish to, but it must be perfectly possible—unless the Minister knows something I do not about a likely date of a general election, presumably we should still have time to do that. So I commend that thought to him.
However, we also know that a lot of the constraints he has described will happen solely in regulations. Everybody in this Committee is aware of the limitations of the capacity of both Houses to do anything about regulations. We cannot amend them here. The Government will bring them forward, but the capacity of us to do anything about that is small, so that is not as much of an assurance as it would be in other circumstances.
Finally, what I am left with is that these powers could do anything from something that might sound very proportionate to something that might sound entirely disproportionate, and we simply have not heard anything that enables us to make a judgment early enough to know where that is contained. I therefore ask the Government to think again before Report about ways in which they might provide assurance about a more contained and proportionate approach to these measures.
Since we are in Committee, in the meantime, I thank all noble Lords for their work on this and the Minister for his response. Before I beg leave to withdraw, I see that the Minister is intervening on me now, which is a joyful change.
Viscount Younger of Leckie (Con)
Before the noble Baroness sits down, I want to say one very important thing. As ever with Bills, there is an opportunity to engage, and I pledge right now to engage with all noble Lords who wish to, and we would like to as well, on these particular measures, to provide, I hope, further reassurances to those that I have given. I hope there is some acceptance that I have given some reassurances.
Baroness Sherlock (Lab)
My Lords, I am sure that on behalf of the Committee I can thank the Minister for that generous offer, and we look forward to taking it up. In the meantime, I beg leave to withdraw the amendment.
Viscount Camrose
Member’s explanatory statement
This amendment makes a technical change to wording about investigations by a coroner or procurator fiscal. The omitted words are not required because there is no stage at which a coroner or procurator fiscal would be “due to” conduct an investigation into a death (as opposed to conducting an investigation into it).
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
My Lords, having listened carefully to representations from across the House at Second Reading, I am introducing this amendment to address concerns about the data preservation powers established in the Bill. The amendment provides for coroners, and procurators fiscal in Scotland, to initiate the data preservation process when they decide it is necessary and appropriate to support their investigations into a child’s death, irrespective of the suspected cause of death.
This amendment demonstrates our commitment to ensuring that coroners and procurators fiscal can access the online data they may need to support their investigation into a child’s death. It is important to emphasise that coroners and procurators fiscal, as independent judges, have discretion about whether to trigger the data preservation process. We are grateful to the families, Peers and coroners whom we spoke to in developing these measures. In particular, I thank the noble Baroness, Lady Kidron, who is in her place. I beg to move.
Baroness Kidron (CB)
My Lords, it is an unusual pleasure to support the Minister and to say that this is a very welcome amendment to address a terrible error of judgment made when the Government first added the measure to the Bill in the other place and excluded data access for coroners in respect of children who died by means other than suicide. I shall not replay here the reasons why it was wrong, but I am extremely glad that the Government have put it right. I wish to take this opportunity to pay tribute to those past and present at 5Rights and the NSPCC for their support and to those journalists who understood why data access for coroners is a central plank of online safety.
I too recognise the role of the Bereaved Families for Online Safety. They bear the pain of losing a child and, as their testimony has repeatedly attested, not knowing the circumstances surrounding that death is a particularly cruel revictimisation for families, who never lose their grief but simply learn to live with it. We owe them a debt of gratitude for putting their grief to work for the benefit of other families and other children.
Lord Leong (Lab)
My Lords, I thank the Minister for setting out the amendment and all noble Lords who spoke. I am sure the Minister will be pleased to hear that we support his Amendment 236 and his Amendment 237, to which the noble Baroness, Lady Kidron, has added her name.
Amendment 236 is a technical amendment. It seeks the straightforward deletion of words from a clause, accounting for the fact that investigations by a coroner, or procurator fiscal in Scotland, must start upon them being notified of the death of a child. The words
“or are due to conduct an investigation”
are indeed superfluous.
We also support Amendment 237. The deletion of this part of the clause would bring into effect a material change. It would empower Ofcom to issue a notice to an internet service provider to retain information in all cases of a child’s death, not just cases of suspected suicide. Sadly, as many of us have discovered in the course of our work on this Bill, there is an increasing number of ways in which communication online can be directly or indirectly linked to a child’s death. These include areas of material that is appropriate for adults only; the inability to filter harmful information, which may adversely affect mental health and decision-making; and, of course, the deliberate targeting of children by adults and, in some cases, by other children.
There are adults who use the internet with the intention of doing harm to children through coercion, grooming or abuse. What initially starts online can lead to contact in person. Often, this will lead to a criminal investigation, but, even if it does not, the changes proposed by this amendment could help prevent additional tragic deaths of children, not just those caused by suspected child suicides. If the investigating authorities have access to online communications that may have been a contributing factor in a child’s death, additional areas of concern can be identified by organisations and individuals with responsibility for children’s welfare and action taken to save many other young lives.
Before I sit down, I want to take this opportunity to say a big thank you to the noble Baroness, Lady Kidron, the noble Lord, Lord Kennedy, and all those who have campaigned on this issue relentlessly and brought it to our attention.
Viscount Camrose (Con)
Let me begin by reiterating my thanks to the noble Baroness, Peers, families and coroners for their help in developing these measures. My momentary pleasure in being supported on these amendments is, of course, tempered by the desperate sadness of the situations that they are designed to address.
I acknowledge the powerful advocacy that has taken place on this issue. I am glad that we have been able to address the concerns with the amendment to the Online Safety Act, which takes a zero-tolerance approach to protecting children by making sure that the buck stops with social media platforms for the content they host. I sincerely hope that this demonstrates our commitment to ensuring that coroners can fully access the online data needed to provide answers for grieving families.
On the point raised by the noble Baroness, Lady Kidron, guidance from the Chief Coroner is likely to be necessary to ensure both that this provision works effectively and that coroners feel supported in their decisions on whether to trigger the data preservation process. Decisions on how and when to issue guidance are a matter for the Chief Coroner, of course, but we understand that he is very likely to issue guidance to coroners on this matter. His office is working with my department and Ofcom to ensure that our processes are aligned. The Government will also work with the regulators and interested parties to see whether any guidance is required to support parents in understanding the data preservation process. Needless to say, I would be more than happy to arrange a meeting with the noble Baroness to discuss the development of the guidance; other Members may wish to join that as well.
Once again, I thank noble Lords for their support on this matter.
Viscount Camrose
Member's explanatory statement
This amendment concerns OFCOM’s power to issue a notice requiring an internet service provider to retain information about the use of the service by a child who has died, where a coroner or procurator fiscal is investigating the child’s death. The amendment has the effect that the power is no longer limited to cases of suspected child suicide.
Viscount Camrose
Member's explanatory statement
This amendment is consequential on the amendment to this clause in my name moving provision about the initial upload of information into the National Underground Asset Register into a new section to be inserted into Part 3A of the New Roads and Street Works Act 1991 (inserted by this clause).
Viscount Camrose (Con)
My Lords, I now turn to the national underground asset register, which I will refer to as NUAR. It is a new digital map of buried pipes and cables that is revolutionising the way that we install, maintain, operate and repair our buried infrastructure. The provisions contained in the Bill will ensure workers have complete and up-to-date access to the data that they need, when they need it, through the new register. NUAR is estimated to deliver more than £400 million per year of economic growth through increased efficiency, reduced accidental damage and fewer disruptions for citizens and businesses. I am therefore introducing several government amendments, which are minor in nature and aim to improve the clarity of the Bill. I hope that the Committee will be content if I address these together.
Amendment 244 clarifies responsibilities in relation to the licensing of NUAR data. As NUAR includes data from across public and private sector organisations, it involves both Crown and third-party intellectual property rights, including database rights. This amendment clarifies that the role of the Keeper of the National Archives in determining the licence terms for Crown IP remains unchanged. This will require the Secretary of State to work through the National Archives to determine licence terms for Crown data, as was always intended. Amendments 243 and 245 are consequential to this change.
Similarly, Amendment 241 moves the provision relating to the first initial upload of data to the register under new Part 3A to make the Bill clearer, with Amendments 248 and 249 consequential to this change.
Amendment 242 is a minor and technical amendment that clarifies that regulations made under new Section 106B(1) can be made “for or in connection with”—rather than solely “in connection with”—the making of information kept in NUAR available, with or without a licence.
Amendment 247 is another minor and technical amendment to ensure that consistent language is used throughout Schedule 13 and so further improve the clarity of these provisions. These amendments provide clarity to the Bill; they do not change the underlying policy.
Although Amendment 298 is not solely focused on NUAR, this might perhaps be a convenient point for me to briefly explain it to your Lordships. Amendment 298 makes a minor and technical amendment to Clause 154, the clause which sets out the extent of the Bill. Subsection (4) of that clause currently provides that an amendment, repeal or revocation made by the Bill
“has the same extent as the enactment amended, repealed or revoked”.
Subsection (4) also makes clear that this approach is subject to subsection (3), which provides for certain provisions to extend only to England and Wales and Northern Ireland. Upon further reviewing the Bill, we have identified that subsection (4) should, of course, also be subject to subsection (2), which provides for certain provisions to extend only to England and Wales. Amendment 298 therefore makes provision to ensure that the various subsections of Clause 154 operate effectively together as a coherent package.
I now turn to a series of amendments raised by the noble Lord, Lord Clement-Jones. Amendments 240A and 240B relate to new Section 106A, which places a duty on the Secretary of State to keep a register of information relating to apparatus in streets in England and Wales. Section 106A allows for the Secretary of State to make regulations that establish the form and manner in which the register is kept. The Bill as currently drafted provides for these regulations to be subject to the negative procedure. Amendment 240A calls for this to be changed to the affirmative procedure, while Amendment 240B would require the publication of draft regulations, a call for evidence and the subsequent laying before Parliament of a statement by the Secretary of State before such regulations can be made.
Viscount Camrose (Con)
I start by thanking the noble Lords, Lord Clement-Jones and Lord Bassam, for their respective replies. As I have said, the Geospatial Commission has been engaging extensively with stakeholders, including the security services, on NUAR since 2018. This has included a call for evidence, a pilot project, a public consultation, focus groups, various workshops and other interactions. All major gas and water companies have signed up, as well as several large telecoms firms.
Lord Clement-Jones (LD)
While the Minister is speaking, maybe the Box could tell him whether the figure of only 33% of asset owners having signed up is correct? Both I and the noble Lord, Lord Bassam, mentioned that; it would be very useful to know.
Viscount Camrose (Con)
It did complete a pilot phase this year. As it operationalises, more and more will sign up. I do not know the actual number that have signed up today, but I will find out.
NUAR does not duplicate existing commercial services. It is a standardised, interactive digital map of buried infrastructure, which no existing service is able to provide. It will significantly enhance data sharing and access efficiency. Current services—
Lord Bassam of Brighton (Lab)
I am concerned. We get the principle behind NUAR, but is there an interface between NUAR and this other service—which, on the face of it, looks quite extensive—currently in place? Is there a dialogue between the two? That seems to be quite important, given that there is some doubt over NUAR’s current scope.
Viscount Camrose (Con)
I am not sure that there is doubt over the current scope of NUAR; it is meant to address all buried infrastructure in the United Kingdom. LSBUD does make extensive representations, as indeed it has to parliamentarians of both Houses, and has spoken several times to the Geospatial Commission. I am very happy to commit to continuing to do so.
Lord Clement-Jones (LD)
My Lords, the noble Lord, Lord Bassam, is absolutely right to be asking that question. We can go only on the briefs we get. Unlike the noble Lord, Lord Bassam, I have not been underground very recently, but we do rely on the briefings we get. LSBUD is described as a
“sustainably-funded UK success story”—
okay, give or take a bit of puff—that
“responds to most requests in 5 minutes or less”.
It has
“150+ asset-owners covering nearly 2 million km and 98% of high-risk assets—like gas, electric, and fuel pipelines”.
That sounds as though we are in the same kind of territory. How can the Minister just baldly state that NUAR is entirely different? Can he perhaps give us a paragraph on how they differ? I do not think that “completely different” can possibly characterise this relationship.
Viscount Camrose (Con)
As I understand it, LSBUD services are provided on a pdf, on request. It is not interactive; it is not vector-based graphics presented on a map, so it cannot be interrogated in the same way. Furthermore, as I understand it—and I am happy to be corrected if I am misstating—LSBUD has a great many private sector asset owners, but no public sector data is provided. All of it is provided on a much more manualised basis. The two services simply do not brook comparison. I would be delighted to speak to LSBUD.
Lord Clement-Jones (LD)
My Lords, we are beginning to tease out something quite useful here. Basically, NUAR will be pretty much an automatic service, because it will be available online, I assume, which has implications on data protection, on who owns the copyright and so on. I am sure there are all kinds of issues there. It is the way the service is delivered, and then you have the public sector, which has not taken part in LSBUD. Are those the two key distinctions?
Viscount Camrose (Con)
Indeed, there are two key distinctions. One is the way that the information is provided online, in a live format, and the other is the quantity and nature of the data that is provided, which will eventually be all relevant data in the United Kingdom under NUAR, versus those who choose to sign up on LSBUD and equivalent services. I am very happy to write on the various figures. Maybe it would help if I were to arrange a demonstration of the technology. Would that be useful? I will do that.
Lord Clement-Jones (LD)
Unlike the noble Lord, Lord Bassam, I do not have that background in seeing what happens with the excavators, but I would very much welcome that. The Minister again is really making the case for greater co-operation. The public sector has access to the public sector information, and LSBUD has access to a lot of private sector information. Does that not speak to co-operation between the two systems? We seem to have warring camps, where the Government are determined to prove that they are forging ahead with their new service and are trampling on quite a lot of rights, interests and concerns in doing so—by the sound of it. The Minister looks rather sceptical.
Viscount Camrose (Con)
I am not sure whose rights are being trampled on by having a shared database of these things. However, I will arrange a demonstration, and I confidently state that nobody who sees that demonstration will have any cynicism any more about the quality of the service provided.
Lord Clement-Jones (LD)
All I can say is that, in that case, the Minister has been worked on extremely well.
Viscount Camrose (Con)
In addition to the situation that the noble Lord, Lord Bassam, described, I was braced for a really horrible situation, because these things very often lead to danger and death, and there is a very serious safety argument to providing this information reliably and rapidly, as NUAR will.
Lord Bassam of Brighton (Lab)
My Lords, it took them half a day to discover where the hole had gone and what the damage was. The water flooded several main roads and there were traffic delays and the rest. So these things are very serious. I was trying to make a serious point while being slightly frivolous about it.
Viscount Camrose (Con)
No, indeed, it is a deeply serious point. I do not know the number off the top of my head but there are a number of deaths every year as a result of these things.
As I was saying, a thorough impact assessment was undertaken for the NUAR measures, which received a green rating from the Regulatory Policy Committee. Impacts on organisations that help facilitate the exchange of data related to assets in the street were included in the modelling. Although NUAR could impact existing utility—
Lord Davies of Brixton (Lab)
I cannot resist drawing the Minister’s attention to the story in today’s Financial Times, which reports that two major water companies do not know where their sewers are. So I think the impact is going to be a little bit greater than he is saying.
Viscount Camrose (Con)
I saw that story. Obviously, regardless of how they report the data, if they do not know, they do not know. But my thought was that, if there are maps available for everything that is known, that tends to encourage people who do not know to take better control of the assets that they manage.
A discovery project is under way to potentially allow these organisations—these alternative providers—to access NUAR data; LSBUD has been referenced, among others. It attended the last three workshops we conducted on this, which I hope could enable it to adapt its services and business models potentially to mitigate any negative impacts. Such opportunities will be taken forward in future years should they be technically feasible, of value, in the public interest and in light of the views of stakeholders, including asset owners.
A national underground asset register depends on bringing data together from asset owners on to a single standardised database. This will allow data to be shared more efficiently than was possible before. Asset owners have existing processes that have been developed to allow them to manage risks associated with excavations. These processes will be developed in compliance with existing guidance in the form of HSG47. To achieve this, those working on NUAR are already working closely with relevant stakeholders as part of a dedicated adoption group. This will allow for a safe and planned rollout of NUAR to those who will benefit from it.
Lord Clement-Jones (LD)
Before the Minister’s peroration, I just want to check something. He talked about the discovery project and contact with the industry; by that, I assume he was talking about asset owners as part of the project. What contact is proposed with the existing company, LinesearchbeforeUdig, and some of its major supporters? Can the Government assure us that they will have greater contact or try to align? Can they give greater assurance than they have been able to give today? Clearly, there is suspicion here of the Government’s intentions and how things will work out. If we are to achieve this safety agenda—I absolutely support it; it is the fundamental issue here—more work needs to be done in building bridges, to use another construction metaphor.
Viscount Camrose (Con)
As I said, the Government have met the Geospatial Commission many times. I would be happy to meet it in order to help it adapt its business model for the NUAR future. As I said, it has attended the last three discovery workshops, allowing this data.
I close by thanking noble Lords for their contributions. I hope they look forward to the demonstration.
Viscount Camrose
“106AA Initial upload of information into NUAR(1) Before the end of the initial upload period an undertaker having apparatus in a street must enter into NUAR— (a) all information that is included in the undertaker’s records under section 79(1) on the archive upload date, and(b) any other information of a prescribed description that is held by the undertaker on that date.(2) The duty under subsection (1) does not apply in such cases as may be prescribed.(3) Information must be entered into NUAR under subsection (1) in such form and manner as may be prescribed.(4) For the purposes of subsection (1) the Secretary of State must by regulations—(a) specify a date as “the archive upload date”, and(b) specify a period beginning with that date as the “initial upload period”.(5) Regulations under this section are subject to the negative procedure.”Member’s explanatory statement
This amendment moves provision about the initial upload of information into the National Underground Asset Register into a new section to be inserted into Part 3A of the New Roads and Street Works Act 1991 (inserted by this clause).
Viscount Camrose
Member’s explanatory statement
This amendment makes clear that regulations under section 106B(1) of the New Roads and Street Works Act 1991 (inserted by this clause) may make provision for, as well as provision in connection with, making information kept in the National Underground Asset Register available.
Viscount Camrose
Member’s explanatory statement
This amendment ensures that language used in paragraphs 2 and 3 of Schedule 5A to the New Roads and Street Works Act 1991 (inserted by this Schedule) is consistent.
Viscount Camrose
“(f) after subsection (3A) insert—“(3B) Except in such cases as may be prescribed, where an undertaker records information as required by subsection (1) or (1B), or updates such information, the undertaker must, within a prescribed period, enter the recorded or updated information into NUAR.(3C) Information must be entered into NUAR under subsection (3B) in such form and manner as may be prescribed.””Member’s explanatory statement
This amendment and the next amendment to this clause in my name are consequential on the amendment to clause 138 in my name moving provision about the initial upload of information into the National Underground Asset Register into a new section to be inserted into Part 3A of the New Roads and Street Works Act 1991 (inserted by clause 138).
Lord Leong (Lab)
My Lords, I support this probing amendment, Amendment 251. I thank all noble Lords who have spoken. From this side of the Committee, I say how grateful we are to the noble Lord, Lord Arbuthnot, for all that he has done and continues to do in his campaign to find justice for those sub-postmasters who have been wronged by the system.
This amendment seeks to reinstate the substantive provisions of Section 69 of PACE, the Police and Criminal Evidence Act 1984, revoking this dangerous assumption. I would like to imagine that legislators in 1984 were perhaps alert to the warning in George Orwell’s novel Nineteen Eighty-Four, written some 40 years earlier, about relying on an apparently infallible but ultimately corruptible technological system to define the truth. The Horizon scandal is, of course, the most glaring example of the dangers of assuming that computers are always right. Sadly, as hundreds of sub-postmasters have known for years, and as the wider public have more recently become aware, computer systems can be horribly inaccurate.
However, the Horizon system is very primitive compared to some of the programs which now process billions of pieces of our sensitive data every day. The AI revolution, which has already begun, will exponentially accelerate the risk of compounded errors being multiplied. To take just one example, some noble Lords may be aware of the concept of AI hallucinations. This is a term used to describe when computer models make inaccurate predictions based on seeing incorrect patterns in data, which may be caused by incomplete, biased or simply poor-quality inputs. In an earlier debate, the noble Viscount, Lord Younger of Leckie, said that account information notices will be decided. How will these decisions be made? Will they be made by individual human beings or by some AI-configured algorithms? Can the Minister share with us how such decisions will be taken?
Humans can look at clouds in the sky or outlines on the hillside and see patterns that look like faces, animals or symbols, but ultimately we know that we are looking at water vapour or rock formations. Computer systems do not necessarily have this innate common sense—this reality check. Increasingly, we will depend on computer systems talking to each other without any human intervention. This will deliver some great efficiencies, but it could lead to greater injustices on a scale which would terrify even the most dystopian science fiction writers. The noble Baroness, Lady Kidron, has already shared with us some of the cases where a computer has made errors and people have been wronged.
Amendment 251 would reintroduce the opportunity for some healthy human scepticism by enabling the investigation of whether there are reasonable grounds for questioning information in documents produced by a computer. The digital world of 2024 depends more on computers than the world of Nineteen Eighty-Four in actual legislation or in an Orwellian fiction. Amendment 251 enables ordinary people to question whether our modern “Big Brother” artificial intelligence is telling the truth when he or it is watching us. I look forward to the Minister’s responses to all the various questions and on the current assumption in law that information provided by the computer is always accurate.
Viscount Camrose (Con)
My Lords, I recognise the feeling of the Committee on this issue and, frankly, I recognise the feeling of the whole country with respect to Horizon. I thank all those who have spoken for a really enlightening debate. I thank the noble Baroness, Lady Kidron, for tabling the amendment and my noble friend Lord Arbuthnot for speaking to it and—if I may depart from the script—his heroic behaviour with respect to the sub-postmasters.
There can be no doubt that hundreds of innocent sub-postmasters and sub-postmistresses have suffered an intolerable miscarriage of justice at the hands of the Post Office. I hope noble Lords will indulge me if I speak very briefly on that. On 13 March, the Government introduced the Post Office (Horizon System) Offences Bill into Parliament, which is due to go before a Committee of the whole House in the House of Commons on 29 April. The Bill will quash relevant convictions of individuals who worked, including on a voluntary basis, in Post Office branches and who have suffered as a result of the Post Office Horizon IT scandal. It will quash, on a blanket basis, convictions for various theft, fraud and related offences during the period of the Horizon scandal in England, Wales and Northern Ireland. This is to be followed by swift financial redress delivered by the Department for Business and Trade.
On the amendment laid by the noble Baroness, Lady Kidron—I thank her and the noble Lords who have supported it—I fully understand the intent behind this amendment, which aims to address issues with computer evidence such as those arising from the Post Office cases. The common law presumption, as has been said, is that the computer which has produced evidence in a case was operating effectively at the material time unless there is evidence to the contrary, in which case the party relying on the computer evidence will need to satisfy the court that the evidence is reliable and therefore admissible.
This amendment would require a party relying on computer evidence to provide proof up front that the computer was operating effectively at the time and that there is no evidence of improper use. I and my fellow Ministers, including those at the MoJ, understand the intent behind this amendment, and we are considering very carefully the issues raised by the Post Office cases in relation to computer evidence, including these wider concerns. So I would welcome the opportunity for further meetings with the noble Baroness, alongside MoJ colleagues. I was pleased to hear that she had met with my right honourable friend the Lord Chancellor on this matter.
We are considering, for example, the way reliability of evidence from the Horizon system was presented, how failures of investigation and disclosure prevented that evidence from being effectively challenged, and the lack of corroborating evidence in many cases. These issues need to be considered carefully, with the full facts in front of us. Sir Wyn Williams is examining in detail the failings that led to the Post Office scandal. These issues are not straightforward. The prosecution of those cases relied on assertions that the Horizon system was accurate and reliable, which the Post Office knew to be wrong. This was supported by expert evidence, which it knew to be misleading. The issue was that the Post Office chose to withhold the fact that the computer evidence itself was wrong.
This amendment would also have a significant impact on the criminal justice system. Almost all criminal cases rely on computer evidence to some extent, so any change to the burden of proof would or could impede the work of the Crown Prosecution Service and other prosecutors.
Although I am not able to accept this amendment for these reasons, I share the desire to find an appropriate way forward along with my colleagues at the Ministry of Justice, who will bear the brunt of this work, as the noble Lord, Lord Clement-Jones, alluded to. I look forward to meeting the noble Baroness to discuss this ahead of Report. Meanwhile, I hope she will withdraw her amendment.
Lord Clement-Jones (LD)
Can the Minister pass on the following suggestion? Paul Marshall, who has been mentioned by all of us, is absolutely au fait with the exact procedure. He has experience of how it has worked in practice, and he has made some constructive suggestions. If there is not a full return to Section 69, there could be other, more nuanced, ways of doing this, meeting the Minister’s objections. But can I suggest that the MoJ has contact with him and discusses what the best way forward would be? He has been writing about this for some years now, and it would be extremely useful, if the MoJ has not already engaged with him, to do so.
Viscount Camrose (Con)
It may have already done so, but I will certainly pass that on.
Baroness Kidron (CB)
I thank everyone who spoke and the Minister for the offer of a meeting alongside his colleagues from the MoJ. I believe he will have a very busy diary between Committee and Report, based on the number of meetings we have agreed to.
However, I want to be very clear here. We have all recognised that the story of the Post Office sub-postmasters makes this issue clear, but it is not about the sub-postmasters. I commend the Government for what they are doing. We await the inquiry with urgent interest, and I am sure I speak for everyone in wishing the sub-postmasters a fair settlement—that is not in question. What is in question is the fact that we do not have unlimited Lord Arbuthnots to be heroic about all the other things that are about to happen. I took it seriously when he said not one moment longer: it could be tomorrow.
Viscount Camrose
“(3A) In section 205(2) (references to periods of time)—(a) omit paragraph (l), and(b) after that paragraph insert—“(la) paragraph 22(6) of Schedule 12A;”Member’s explanatory statement
This amendment provides that Article 3 of Regulation No 1182/71 (rules of interpretation regarding periods of time etc) does not apply to paragraph 22(6) of Schedule 12A to the Data Protection Act 2018 (inserted by Schedule 15 to the Bill).
Viscount Camrose
“Supplementary powers
23A The Commission may do anything it thinks appropriate for the purposes of, or in connection with, its functions.”Member’s explanatory statement
This amendment makes clear that the Information Commission has power to do things to facilitate the exercise of its functions.
Viscount Camrose
“(3) For the purposes of paragraph 7(3) of Schedule 12A to the 2018 Act (extension of chair’s term), the term of the person’s appointment as chair of the Information Commission is to be treated as a term beginning when the person began to hold the office of Information Commissioner.”Member’s explanatory statement
This amendment ensures that provision limiting the extension of a person’s term of appointment as chair of the Information Commission (in paragraph 7 of new Schedule 12A to the Data Protection Act 2018, read with section 205(2) of that Act) applies in the same manner to the transitional appointment of the current Information Commissioner as chair.
Baroness Jones of Whitchurch (Lab)
My Lords, I am pleased that we were able to sign this amendment. Once again, the noble Baroness, Lady Kidron, has demonstrated her acute ability to dissect and to make a brilliant argument about why an amendment is so important.
As the noble Lord, Lord Clement-Jones, and others have said previously, what is the point of this Bill? Passing this amendment and putting these new offences on the statute book would give the Bill the purpose and clout that it has so far lacked. As the noble Baroness, Lady Kidron, has made clear, although it is currently an offence to possess or distribute child sex abuse material, it is not an offence to create these images artificially using AI techniques. So, quite innocent images of a child—or even an adult—can be manipulated to create child sex abuse imagery, pornography and degrading or violent scenarios. As the noble Baroness pointed out, this could be your child or a neighbour’s child being depicted for sexual gratification by the increasingly sophisticated AI creators of these digital models or files.
Yesterday’s report from the Internet Watch Foundation said that a manual found on the dark web encourages “nudifying” tools to remove clothes from child images, which can then be used to blackmail them into sending more graphic content. The IWF reports that the scale of this abuse is increasing year on year, with 275,000 web pages containing child sex abuse being found last year; I suspect that this is the tip of the iceberg as much of this activity is occurring on the dark web, which is very difficult to track. The noble Baroness, Lady Kidron, made a powerful point: there is a danger that access to such materials will also encourage offenders who then want to participate in real-world child sex abuse, so the scale of the horror could be multiplied. There are many reasons why these trends are shocking and abhorrent. It seems that, as ever, the offenders are one step ahead of the legislation needed for police enforcers to close down this trade.
As the noble Baroness, Lady Kidron, made clear, this amendment is “laser focused” on criminalising those who are developing and using AI to create these images. I am pleased to say that Labour is already working on a ban on creating so-called nudification tools. The prevalence of deepfakes and child abuse on the internet is increasing the public’s fear of the overall safety of AI, so we need to win their trust back if we are to harness the undoubted benefits that it can deliver to our public services and economy. Tackling this area is one step towards that.
Action to regulate AI by requiring transparency and safety reports from all those at the forefront of AI development should be a key part of that strategy, but we have a particular task to do here. In the meantime, this amendment is an opportunity for the Government to take a lead on these very specific proposals to help clean up the web and rid us of these vile crimes. I hope the Minister can confirm that this amendment, or a government amendment along the same lines, will be included in the Bill. I look forward to his response.
Viscount Camrose (Con)
I thank the noble Baroness, Lady Kidron, for tabling Amendment 291, which would create several new criminal offences relating to the use of AI to collect, collate and distribute child abuse images or to possess such images after they have been created. Nobody can dispute the intention behind this amendment.
We recognise the importance of this area. We will continue to assess whether and what new offences are needed to further bolster the legislation relating to child sexual abuse and AI, as part of our wider ongoing review of how our laws need to adapt to AI risks and opportunities. We need to get the answers to these complex questions right, and we need to ensure that we are equipping law enforcement with the capabilities and the powers needed to combat child sexual abuse. Perhaps, when I meet the noble Baroness, Lady Kidron, on the previous group, we can also discuss this important matter.
However, for now, I reassure noble Lords that any child sex abuse material, whether AI generated or not, is already illegal in the UK, as has been said. The criminal law is comprehensive with regard to the production and distribution of this material. For example, it is already an offence to produce, store or share any material that contains or depicts child sexual abuse, regardless of whether the material depicts a real child or not. This prohibition includes AI-generated child sexual abuse material and other pseudo imagery that may have been AI or computer generated.
We are committed to bringing to justice offenders who deliberately misuse AI to generate child sexual abuse material. We demonstrated this as part of the road to the AI Safety Summit, where we secured agreement from NGO, industry and international partners to take action to tackle AI-enabled child sexual abuse. The strongest protections in the Online Safety Act are for children, and all companies in scope of the legislation will need to tackle child sexual abuse material as a priority. Applications that use artificial intelligence will not be exempt and must incorporate robust guard-rails and safety measures to ensure that AI models and technology cannot be manipulated for child sexual abuse purposes.
Furthermore, I reassure noble Lords that the offence of taking, making, distributing and possessing with a view to distribution any indecent photograph or pseudophotograph of a child under the age of 18 carries a maximum sentence of 10 years’ imprisonment. Possession alone of indecent photographs or pseudophotographs of children can carry a maximum sentence of up to five years’ imprisonment.
However, I am not able to accept the amendment, as the current drafting would capture legitimate AI models that have been deliberately misused by offenders without the knowledge or intent of their creators to produce child sexual abuse material. It would also inadvertently criminalise individual users who possess perfectly legal digital files with no criminal intent, due to the fact that they could, when combined, enable the creation of child sexual abuse material.
I therefore ask the noble Baroness to withdraw the amendment, while recognising the strength of feeling and the strong arguments made on this issue and reiterating my offer to meet with her to discuss this ahead of Report.
Baroness Kidron (CB)
I do not know how to express in parliamentary terms the depth of my disappointment, so I will leave that. Whoever helped the noble Viscount draft his response should be ashamed. We do not have a comprehensive system and the police do not have the capability; they came to me after months of trying to get the Home Office to act, so that is an untruth: the police do not have the capability.
I remind the noble Viscount that in previous debates his response on the bigger picture of AI has been to wait and see, but this is a here and now problem. As the noble Baroness, Lady Jones, set out, this would give purpose and reason—and here it is in front of us; we can act.
Viscount Camrose (Con)
I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones of Whitchurch, for tabling the amendments in this important group. I very much share the concerns about all the uses of deepfake images that are highlighted by these amendments. I will speak more briefly than I otherwise would with a view to trying to—
Lord Clement-Jones (LD)
My Lords, I would be very happy to get a letter from the Minister.
Viscount Camrose (Con)
I would be happy to write one. I will go for the abbreviated version of my speech.
I turn first to the part of the amendment that would seek to criminalise the creation, alteration or otherwise generation of deepfake images depicting a person engaged in an intimate act. The Government recognise that there is significant public concern about the simple creation of sexually explicit deepfake images, and this is why they have announced their intention to table an amendment to the Criminal Justice Bill, currently in the other place, to criminalise the creation of purposed sexual images of adults without consent.
The noble Lord’s Amendment 294 would create an offence explicitly targeting the creation or alteration of deepfake content when a person knows or suspects that the deepfake will be or is likely to be used to commit fraud. It is already an offence under Section 7 of the Fraud Act 2006 to generate software or deepfakes known to be designed for or intended to be used in the commission of fraud, and the Online Safety Act lists fraud as a priority offence and as a relevant offence for the duties on major services to remove paid-for fraudulent advertising.
Amendment 295 in the name of the noble Baroness, Lady Jones of Whitchurch, seeks to create an offence of creating or sharing political deepfakes. The Government recognise the threats to democracy that harmful actors pose. At the same time, the UK also wants to ensure that we safeguard the ability for robust debate and protect freedom of expression. It is crucial that we get that balance right.
Let me first reassure noble Lords that the UK already has criminal offences that protect our democratic processes, such as the National Security Act 2023 and the false communications offence introduced in the Online Safety Act 2023. It is also already an election offence to make false statements of fact about the personal character or conduct of a candidate or about the withdrawal of a candidate before or during an election. These offences have appropriate tests to ensure that we protect the integrity of democratic processes while also ensuring that we do not impede the ability for robust political debate.
I assure noble Lords that we continue to work across government to ensure that we are ready to respond to the risks to democracy from deepfakes. The Defending Democracy Taskforce, which seeks to protect the democratic integrity of the UK, is engaging across government and with Parliament, the UK’s intelligence community, the devolved Administrations, local authorities and others on the full range of threats facing our democratic institutions. We also continue to meet regularly with social media companies to ensure that they continue to take action to protect users from election interference.
Turning to Amendments 295A to 295F, I thank the noble Lord, Lord Clement-Jones, for them. Taken together, they would in effect establish a new regulatory regime in relation to the creation and dissemination of deepfakes. The Government recognise the concerns raised around harmful deepfakes and have already taken action against illegal content online. We absolutely recognise the intention behind these amendments but they pose significant risks, including to freedom of expression; I will write to noble Lords about those in order to make my arguments in more detail.
For the reasons I have set out, I am not able to accept these amendments. I hope that the noble Lord will therefore withdraw his amendment.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for that rather breathless response and his consideration. I look forward to his letter. We have arguments about regulation in the AI field; this is, if you like, a subset of that—but a rather important subset. My underlying theme is “must try harder”. I thank the noble Lord, Lord Leong, for his support and pay tribute to Control AI, which is vigorously campaigning on this subject in terms of the supply chain for the creation of these deepfakes.
Pending the Minister’s letter, which I look forward to, I beg leave to withdraw my amendment.
Lord Bassam of Brighton (Lab)
The Committee will be relieved to know that I will be brief. I do not have much to say because, in general terms, this seems an eminently sensible amendment.
We should congratulate the noble Lord, Lord Clement-Jones, on his drafting ingenuity. He has managed to compose an amendment that brings together the need for scrutiny of emerging national security and data privacy risks relating to advanced technology, aims to inform regulatory developments and guidance that might be required to mitigate risks, and would protect the privacy of people’s genomics data. It also picks up along the way the issue of the security services scrutinising malign entities and guiding researchers, businesses, consumers and public bodies. Bringing all those things together at the end of a long and rather messy Bill is quite a feat—congratulations to the noble Lord.
I am rather hoping that the Minister will tell the Committee either that the Government will accept this wisely crafted amendment or that everything it contains is already covered. If the latter is the case, can he point noble Lords to where those things are covered in the Bill? Can he also reassure the Committee that the safety and security issues raised by the noble Lord, Lord Clement-Jones, are covered? Having said all that, we support the general direction of travel that the amendment takes.
Lord Clement-Jones (LD)
I would be extremely happy for the Minister to write.
Viscount Camrose (Con)
Nothing makes me happier than the noble Lord’s happiness. I thank him for his amendment and the noble Lord, Lord Bassam, for his points; I will write to them on those, given the Committee’s desire for brevity and the desire to complete this stage tonight.
I wish to say some final words overall. I sincerely thank the Committee for its vigorous—I think that is the right word—scrutiny of this Bill. We have not necessarily agreed on a great deal, but I am in awe of the level of scrutiny and the commitment to making the Bill as good as possible. Let us be absolutely honest—this is not the most entertaining subject, but it is something that we all take extremely seriously and I pay tribute to the Committee for its work. I also extend sincere thanks to the clerks and our Hansard colleagues for agreeing to stay a little later than agreed, although that may not even be necessary. I very much look forward to engaging with noble Lords again before and during Report.
Lord Clement-Jones (LD)
My Lords, I thank the Minister, the noble Baroness, Lady Jones, and all the team. I also thank the noble Lord, Lord Harlech, whose first name we now know; these things are always useful to know. This has been quite a marathon. I hope that we will have many conversations between now and Report. I also hope that Report is not too early as there is a lot to sort out. The noble Baroness, Lady Jones, and I will be putting together our priority list imminently but, in the meantime, I beg leave to withdraw my amendment.
Viscount Camrose
“(3A) Regulations under this section made in consequence of section 183A of the 2018 Act (inserted by section 49 of this Act) may amend, repeal or revoke provision which refers to the data protection legislation (as defined in section 3 of the 2018 Act) as they could if the provision referred instead to the main data protection legislation (as defined in section 183A of the 2018 Act).”Member’s explanatory statement
This amendment makes clear that regulations making amendments consequential on new section 183A of the Data Protection Act 2018 (inserted by clause 49 of the Bill) can remove provision which duplicates the effect of that section but which refers to the “data protection legislation” generally, rather than the “main data protection legislation”.
Viscount Camrose
Member’s explanatory statement
This amendment provides that subsection (4) of this clause is subject to subsection (2) of this clause, as well as subsection (3).