House of Lords

Tuesday 21st January 2025 Lords Chamber

Tuesday 21 January 2025

14:30

Prayers—read by the Lord Bishop of Manchester.

Introduction: Baroness Coffey

Tuesday 21st January 2025 Lords Chamber

14:37

The right honourable Dame Thérèse Anne Coffey, DBE, having been created Baroness Coffey, of Saxmundham in the County of Suffolk and of Grassendale in the City of Liverpool, was introduced and took the oath, supported by Baroness Stedman-Scott and Baroness Pidding, and signed an undertaking to abide by the Code of Conduct.

Introduction: Lord Evans of Sealand

Tuesday 21st January 2025 Lords Chamber

14:43

David Richard Evans, having been created Lord Evans of Sealand, of Chester in the County of Cheshire, was introduced and took the oath, supported by Lord Kennedy of Southwark and Baroness Ramsey of Wall Heath, and signed an undertaking to abide by the Code of Conduct.

Lord Speaker’s Statement

Tuesday 21st January 2025 Lords Chamber

14:48

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, noble Lords will be aware that legal proceedings arising from the judgment of the Northern Ireland Court of Appeal on the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 remain active. Part of my role is to decide whether, in specific circumstances, it is appropriate to waive the application of the sub judice rule, under which we do not debate matters before the courts. In view of the importance of the issues raised in this case, I have decided to grant an ongoing waiver of the rule to allow reference to be made to the case. A similar waiver has already been issued in the House of Commons.

National Trust Acts

Tuesday 21st January 2025 Lords Chamber

Question

14:49

Asked by

[Lord Lexden]

To ask His Majesty’s Government whether they plan to review the National Trust Acts.

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Baroness Twycross) (Lab)]

My Lords, I should declare that I am a member of the National Trust, as I expect many other noble Lords are as well. I am sure that noble Lords from across your Lordships’ House will join me in wishing the National Trust well in its 130th year. The Government have no plans to review the National Trust Acts. The National Trust is an independent charity run by its board of trustees who are responsible for the organisation’s governance and are accountable to its members and to the Charity Commission.

[Lord Lexden (Con)]

My Lords, in view of the importance of this famous institution, which has come in for considerable criticism in recent years, would it not be prudent to review the legislation under which it operates? How can an institution function satisfactorily when it has a voting system that effectively bars from office those of whom the current leadership disapprove, when history is distorted by undue emphasis on colonialism and when a great house, Clandon Park, is left in ruins after an insurance payout that should have been used to restore it? National Trust managers profess to see raw beauty in this blackened shell—raw folly and betrayal would be more like it. Are there not some worrying features of the activities of the National Trust today, including its governance, which should trouble us all?

[Baroness Twycross (Lab)]

I feel quite strongly that the National Trust is a charity, and as a charity, government needs to be really careful of the extent to which we take a view on how a charity that has democratic processes should operate. To note the point that the noble Lord made around the voting system, it is for the trustees of the National Trust to determine the running of elections in line with the charity’s governing document, but I note that the National Trust members voted in 2023 to keep the quick vote system. The noble Lord asked a number of questions, one of which was around Clandon Park. I also note that the trust’s proposals in relation to this historic building reflect in-depth conversations with heritage bodies, architectural specialists, community organisations and local residents, and also with over 75,000 visitors to Clandon since the fire.

[The Earl of Devon (CB)]

My Lords, the National Trust recently announced a bold ambition to return to nature some 250,000 hectares. Given that many of the trust’s holdings consist of unique heritage farmland of the sort immortalised by John Constable and wrestled from nature over centuries, do His Majesty’s Government have any concerns that this rewilding will fall foul of the trust’s statutory purpose to permanently protect places of natural beauty or historic interest for the benefit of the nation?

[Baroness Twycross (Lab)]

The Government are aware that the trust is working with farmers to restore nature, including those who are tenants on National Trust land. The trust will support the network of farmers across the land to be even bigger players in nature recovery and climate resilience while producing good, healthy food and running sustainable businesses. In the Government’s view, the two are not mutually exclusive.

[Baroness Thornton (Lab)]

My Lords, I think it is a shame that the party opposite chose to make what is a success story of 130 years part of its culture wars. Can my noble friend the Minister tell us whether the Government have welcomed the new strategy of the National Trust, which includes the goal of equality of access to countryside and beauty?

[Baroness Twycross (Lab)]

I am sure that all noble Lords would agree with one of the co-founders of the National Trust, Octavia Hill—herself probably viewed as quite radical at the time—when she said that

“We all want quiet. We all want beauty … we all need space”.


It behoves all of us to support the National Trust in ensuring that there is equality of access to nature and history, by both opening up historic buildings and preserving heritage and our countryside in a way that preserves it for the future.

[Baroness Bonham-Carter of Yarnbury (LD)]

My Lords, local authority expenditure has fallen dramatically in recent years, as has DCMS grant in aid. Heritage organisations are struggling with managing and maintaining both buildings and the natural environment. The National Trust’s new 10-year strategy highlights this. As well as bricks and mortar, the National Trust includes the white cliffs of Dover and sections of the Welsh coastal path in its areas of responsibility. How do the Government intend to help support the heritage sector to be resilient and net-zero efficient in protecting its heritage assets?

[Baroness Twycross (Lab)]

One of the ways that the trust is trying to ensure that the countryside, peatland and so forth are available for future generations is through its work to help the UK reach net zero by 2050. This Government have committed to be the first generation to leave the environment in a better state than that in which we found it. We are very supportive of the work that the National Trust does, as the biggest conservation charity in Europe, to ensure that future generations can enjoy what many of us enjoy on a regular basis.

[The Earl of Effingham (Con)]

My Lords, in 1895 the visionary Octavia Hill co-founded the National Trust because she believed in the life-enhancing virtues of clean air and blue sky. In 2025, the positive correlation between that exercise and mental and physical well-being is medically proven. However, the latest Government data reveals that well over 40 million people do not have access to a green space a short walk from home. Can the Minister say what the DCMS strategy is to address this urgently?

[Baroness Thornton (Lab)]

Support the National Trust.

[Baroness Twycross (Lab)]

As my noble friend Lady Thornton behind me said, we will support the National Trust. It is important to remember that it is the biggest conservation charity in Europe; the coastline in Wales has been mentioned, and I think that every Member of your Lordships’ House will have their favourite National Trust building and their favourite walk on National Trust land. By working together and with charities such as the National Trust, we will ensure that everybody has access to nature.

[Baroness Young of Old Scone (Lab)]

Does the Minister agree that the National Trust is doing precisely what we should all be doing by focusing its remit on biodiversity and climate change in its rural spaces, and that its new strategy is therefore an admirable and forward-looking thing?

[Baroness Twycross (Lab)]

Clearly, it is up to the National Trust and its members what the content of the strategy is. However, I agree with my noble friend on the important points she raised.

[Lord Tyrie (Non-Afl)]

My Lords—

[Lord Swire (Con)]

My Lords—

[Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)]

My Lords, it is the turn of the noble Lord.

[Lord Tyrie (Non-Afl)]

I think that most of us would agree that the National Trust does a very fine job and has done so over many years. None the less, the noble Lord, Lord Lexden, has a point. It is a huge institution, is one of the largest landowners in the country and is in receipt of huge amounts of public money, not only directly in grants but indirectly through taxpayer reliefs. The time might now be ripe for a review that will look not only at the governance, to which the noble Lord referred, but at the accountability mechanisms, to make sure that the body remains well run.

[Baroness Twycross (Lab)]

The governance and the focus of the work of the National Trust is a matter for its council, not for government. I personally and the Government do not have an issue with the running of the National Trust. If any noble Lords have concerns about it, they should note that any issues around its compliance with its charitable purposes should be made to the Charity Commission. I repeat that the National Trust is the biggest conservation charity in Europe. It opens up our countryside and heritage, including diverse buildings—from Paul McCartney’s childhood home to Cliveden and Chartwell—and, as has been noted, the Welsh coastline. Rather than bashing the institution, we should support it to continue with its strategy.

[Lord Swire (Con)]

My Lords, criticising some of the trends in the governance of the National Trust is not bashing the institution. I am a proud member of the National Trust; I think that it does excellent work, not least on the south-west coast path, which I walk regularly. However, there has been a trend to ignore a lot of criticism of the National Trust, and we must face it: introducing the quick vote system was an attempt by the National Trust to freeze out legitimate criticism by other members of the trust. There is increasing concern about how it has behaved over Holnicote in Exmoor, where it ignored the wishes of the Acland family, and what it has done about legal trail hunting, which goes beyond any legislation either House has introduced. There are now the issues that my noble friend Lord Lexden raised over Clandon. The Government should be concerned about this huge national institution that touches on all our lives.

[Baroness Twycross (Lab)]

I do not feel that the critics of the National Trust have been silenced; they have been quite vocal. The governance and the focus of the work of the trust is a matter for its 5 million members—more than the combined memberships of all political parties—rather than the Government. It is a sorry day when the Government start interfering in matters that are not to do with them, rather than leaving them to the charity and its members and governing bodies.

Homelessness

Tuesday 21st January 2025 Lords Chamber

Question

15:00

Asked by

[Baroness Kennedy of Cradley]

To ask His Majesty’s Government what progress they are making on reducing homelessness.

[Baroness Kennedy of Cradley (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and in doing so declare my interest as a trustee of the Nationwide Foundation.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)]

My Lords, we are facing a homelessness crisis in every part of the country, with record levels that have become nothing short of a national disgrace. This Government acknowledge the devastating impact that homelessness has on so many lives. The current situation did not happen overnight; it is the result of long-standing neglect. We are addressing these failures head on with an injection of cash—allocating an extra £233 million to councils directly for homelessness, taking total funding to £1 billion next year—and through the long-term approach of working with mayors and councils across the country. The Government have set up an interministerial group chaired by the Deputy Prime Minister to develop a long-term strategy to put us back on track to ending homelessness.

[Baroness Kennedy of Cradley (Lab)]

My Lords, today marks 1,000 days since Royal Ascent was given to repeal the Vagrancy Act. Repealing this outdated law, which punishes people experiencing homelessness and pushes them further away from support, had overwhelming support from every party and every section of your Lordships’ House. Despite this, the last Government, and to date this Government, have not yet commenced repeal, citing concerns over the need for replacement powers, even though the latest report from MHCLG shows that this Act is being used less and less by police forces and that nearly half of them do not use it at all. I ask my noble friend one simple question: when are the Government going to commence the repeal of the Vagrancy Act?

[Baroness Taylor of Stevenage (Lab)]

I thank my noble friend for her campaigning around homelessness and on this issue. The Government view the Vagrancy Act 1824 as antiquated, cruel and no longer fit for purpose. No one should be criminalised for sleeping rough on the streets. I share her passion for ensuring it is confined to history, where it belongs. We want to ensure we avoid criminalising those who are most vulnerable, while ensuring that police and local authorities have the tools they need to make sure communities feel safe. As we move towards our steps on the Vagrancy Act, we are working closely with the Home Office and local partners. I was pleased that my honourable friend Minister Ali was able to announce yesterday an additional £20 million to deal with severe winter pressures, taking the total to £30 million.

[Lord Bird (CB)]

Are the Government going to address the fact that we have never learned to turn the tap off? We have more and more people falling into homelessness from different sectors of society—people are having problems all over the place, as the noble Baroness said. My concern is this: we are always going on about the emergency, but where in the background are this Government or the next working on reducing homelessness by turning the tap off and getting rid of the inheritance of poverty, which is what produces most homelessness?

[Baroness Taylor of Stevenage (Lab)]

The noble Lord is quite right in what he says. He will know that we have set a target of building 1.5 million homes over the course of the Parliament, which in the long term is the answer to tackling this issue. In the short term, we need to tackle the issue of many children spending years in temporary accommodation, when they need space to play and develop, at the same time increasing the funding to tackle the long-term causes of homelessness and poverty, which, as he rightly says, sit at the heart of this. The Renters’ Rights Bill, which is coming before this House very shortly, will tackle some of the causes of homelessness.

[Lord Jamieson (Con)]

My Lords, I declare my interest as a councillor in Central Bedfordshire. As the Minister has identified, the primary cause of homelessness is a lack of homes. London has nearly 70,000 families living in temporary accommodation—over half the total in England. Of those, almost half—33,000—live out-of-borough compared with one in seven for the rest of the country. Does the Minister agree that this is largely down to London having failed to build the homes that its residents need? What will this Government do to get London building?

[Baroness Taylor of Stevenage (Lab)]

The noble Lord will be aware that new targets have been set for building homes across the country, and in London no less. Local authorities use out-of-area placements to provide temporary accommodation, as he rightly mentioned. We are enabling more funding to go into London so that we can reduce the level of temporary homelessness accommodation. However, the long-term solution is to get more houses built, which is why we have increased the housebuilding target for London.

[The Lord Bishop of Lichfield]

My Lords, according to data from the Ministry of Justice, the proportion of all prison leavers who were released homeless in 2023-24 was 13%. Considering that people are 50% more likely to re-offend if they are homeless, what steps are the Government taking to reduce rates of homelessness among prison leavers?

[Baroness Taylor of Stevenage (Lab)]

The right reverend Prelate is right to highlight homelessness for ex-offenders. Since 2021, more than £33 million has been awarded to local authorities to support nearly 6,000 ex-offenders into their own private rented accommodation. The number of individuals still enrolled on the programme and sustaining tenancies is nearly 3,000. The funding provided allows schemes to offer a range of support. It is very important that, alongside housing, we get that support, consisting of rental deposits, landlord incentives, and dedicated support staff with landlord liaison and tenancy support officers. That complements the MoJ’s community accommodation service. The right reverend Prelate is right that housing is key to preventing re-offending.

[Baroness Thornhill (LD)]

My Lords, worryingly, the total spend on homelessness is unknown, largely due to a loophole in what we call exempt accommodation, which I am sure the Minister is aware of. The usage of this is not tracked, and it is now evident that it attracts some of the worst providers. Can the Minister assure us that this Government will get to grips with this unquantified and uncontrolled spending, and with those who are exploiting some of the most vulnerable people in society and the public purse?

[Baroness Taylor of Stevenage (Lab)]

The noble Baroness is quite right. It is outrageous that people choose to exploit the individuals concerned in this situation and the councils that have to fund their accommodation. We are doing everything we can to discover the extent of this and to tackle it head on. We recognise the increasing costs of that temporary accommodation and the pressure that it places on council budgets. As well as the homelessness prevention grant, councils are expected to draw from their wider local government finance, as the noble Baroness is aware. The overall local government settlement made extra provision for that, as well as the additional homelessness funding. It is totally unacceptable for homeless people to be exploited. We continue to track that down everywhere we can.

[Baroness Hughes of Stretford (Lab)]

Does my noble friend agree that we have a crisis now with the number of children and young people trapped in bed and breakfast accommodation, in totally unsuitable conditions, which will have an important and deleterious effect on their well-being? On the strategy she outlined, can she say more about the priority that the Government are giving to reducing the number of children and young people trapped in homelessness and to taking them out of that temporary system?

[Baroness Taylor of Stevenage (Lab)]

My noble friend is quite right. There is a short-term and very long-term effect on young people who get trapped in temporary accommodation. Councils must make sure that temporary accommodation is suitable for the needs of the household. Households can request a review of their accommodation if they feel it is unsuitable and it an applicant is not satisfied with how the council has handled their case. We have launched emergency accommodation reduction pilots, backed with £5 million, to work with the 20 local authorities that have the highest use of bed and breakfast accommodation for homeless families. Through the Renters’ Rights Bill, we will be applying the decent homes standard to the private rented sector; this includes a clause to bring temporary accommodation into the scope of the decent homes standard.

[Lord Best (CB)]

My Lords, the Minister may have seen the Sunday Times article by Martina Lees with the headline:

“Our grotty B&B bedroom costs taxpayers £2,383 a month”.


Can the Minister update us on the local authority housing fund, which enables the purchase of rundown properties for use on a temporary basis for temporary accommodation, which will save an enormous amount of money? In the long-term, with ownership by the council or a housing association, those properties can be used for years to come, providing vastly better value for money than the £283 a month for really grotty accommodation in the private sector.

[Baroness Taylor of Stevenage (Lab)]

The noble Lord is correct to flag up that issue, and I thank him for his work on housing and homelessness. The funding that the Government have introduced—the £450 million third round of the local authority housing fund—will support local authorities to get better quality temporary accommodation for homeless families. The third round is expected to deliver over 2,000 homes by 2026; funding will then be provided over the next two years, and will include revenue funding to support councils to deliver that fund. We are putting our money where our mouth is, but trying to resolve a problem that has occurred over many years is taking a great deal of effort. We will continue to strive to make sure that we put an end to the chronic homelessness we have seen in this country. It is time that we made sure everyone has a decent home to live in.

Primary Schools: Swimming Lessons

Tuesday 21st January 2025 Lords Chamber

Question

15:11

Asked by

[Baroness Hoey]

To ask His Majesty’s Government what assessment they have made of the number of children in primary schools who do not have regular swimming lessons in school time.

[The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)]

My Lords, swimming and water safety is a compulsory element of the primary PE national curriculum. We do not collect data from every primary school about how many lessons pupils get, but sample data from Sport England shows that in 2023-24, 95.2% of state primary schools surveyed reported providing swimming lessons. The department also supports schools to provide swimming and water safety lessons through teacher training and resources, and the PE and sport premium for top-up lessons.

[Baroness Hoey (Non-Afl)]

My Lords, I thank the Minister for that Answer. I understand and know her personal support for school sport and swimming; in fact, we worked together many years ago on this issue. I know provision in some schools are very good, but does she agree that, because children have to be able to swim 25 metres, there is a tendency, once they tick that box, for swimming to finish for many of our youngsters, and they do not have the family support to get it outside school? Will she look again at some of the statistics that come from some of the organisations? It is sometimes in their interests to say that things are going very well. We need to look at this, so that youngsters get that life chance to swim not just safely but for fun, enjoyment and competition.

[Baroness Smith of Malvern (Lab)]

I thank the noble Baroness for her question. I was reminiscing about a previous life in which we worked together as Ministers to considerably increase the sporting opportunities for children in our schools and for people more widely. She is absolutely right to identify that, although it is obviously important that children learn, as the national curriculum suggests, to swim 25 metres by the time they finish primary school, there is much more to swimming as an opportunity for life than simply meeting that standard, important though it is. We need to think about how schools can provide more opportunities for broader sporting activity, including swimming, and, of course, how our community facilities, which have been reduced in recent years, can support the broadest possible engagement, including from those children whose parents are perhaps less able to take them for swimming lessons and activities than is the case at the moment.

[Lord Storey (LD)]

My Lords, I declare an interest as patron of the Royal Life Saving Society. The Minister will know that, in the 10 to 16 age group, one in three young people cannot swim; that is the group with the highest occurrence of drowning. More shockingly, within the black community, 95% of adults and 80% of children cannot swim; the figures are roughly the same in the Asian community. These are shocking figures. Does the Minister agree that it is time we had an action plan so we can ensure that every child who leaves school can swim?

[Baroness Smith of Malvern (Lab)]

The noble Lord makes a very important point about the discrepancies in achievement in children’s swimming. He is absolutely right that if someone comes from a well-off background they are more than 80% likely to have fulfilled the requirement, whereas that goes down to a third for someone from a poorer background. As he also rightly says, there is a real difference depending on someone’s ethnic background. That is completely unsatisfactory.

Although work is ongoing through the Inclusion 2024 project to try to ensure that more children, including those with special educational needs and disabilities, get access to swimming, the noble Lord is right that there is more we all need to do together, and across government, to ensure that children meet the required standard by the time they leave primary school. Furthermore, as the noble Baroness, Lady Hoey, identified in her previous question, we need to ensure that they are also able to get the enjoyment and opportunities that come from being able to swim confidently.

[Lord Hampton (CB)]

My Lords, I declare an interest as a teacher. Swim England reports that, since 2011, almost 500 publicly accessible pools have closed, and that child drowning deaths have doubled in the last four years. Would the Minister agree that it is difficult to swim if you do not have a pool?

[Baroness Smith of Malvern (Lab)]

I strongly agree with the noble Lord. As he says, there are 500 fewer public-access swimming pools operational in England now than there were in 2010. Alongside that, there has been a 7% increase in the pay-per-swim cost in the last year. Whether in schools, where we need to make sure that teachers are supported with the skills to develop children’s basic swimming skills, or in the provision across our communities more widely, there is more we need to do to support swimming.

[Baroness Berridge (Con)]

My Lords, the Minister has spoken about the correlation between ethnicity and poverty. We often talk about the cost of a school uniform, but there is no need for swimwear or anything of that nature to be branded. Are His Majesty’s Government looking at whether the cost of additional items such as swimwear is part of the barrier to kids, who grow so quickly, accessing swimming lessons, as well as the lack of facilities?

[Baroness Smith of Malvern (Lab)]

The noble Baroness identifies probably one of the many barriers that prevent parents and their children being able to swim if they are living in poverty. I am not aware of whether expecting branded swimming items is a barrier to children being able to swim, but if it is that is clearly wrong. I suspect that would be covered by the provisions in the Bill that we will receive in the near future to ensure that school uniform is not a barrier to children being able to learn, in this case, a very important skill.

[Lord Watts (Lab)]

My Lords, as we have heard, under the last Tory Government a lot of swimming baths were closed. The failure of that Government is a fact that they do not like to be reminded of. Is it not the case that deprived areas had their pools closed? Should we not look again at whether we should provide new swimming pools in the most deprived parts of Britain?

[Baroness Smith of Malvern (Lab)]

My noble friend is right. I have already identified the decrease in the number of public pools, as others have. He also makes an important point about ensuring that there is access to public leisure facilities on a fair basis. The responsibility for that lies at the local authority level. We are continuing to encourage local authorities to invest in leisure facilities, notwithstanding the considerable pressures on their funding that they have faced over recent years.

[The Earl of Effingham (Con)]

My Lords, unfortunately, sport in schools has been described as in “crisis”, with a “Covid cohort” of children not returning to physical activity. The neglect of sport is leading to catastrophic effects on childhood obesity and mental health, and evidence suggests that many children are now addicted to their phones. Can the Minister please deliver on what her Prime Minister said, which was that children are being

“locked out of emulating their heroes”

because of a lack of PE provision? Will she commit to focusing on there being no mobile phones in schools and more physical education in the curriculum?

[Baroness Smith of Malvern (Lab)]

I am trying not to be grumpy in answering this Question today, as I was a bit grumpy yesterday. However, the noble Earl has a bit of a cheek talking about the crisis in PE provision in our schools. This Government have acted quickly, but have been in government for only six months. The 6.7 percentage point decrease in those able to swim 25 metres unaided, compared with 2017-18, cannot be laid at the feet of this Government.

Having said that, there is a range of ways in which we want to reinvigorate sport, PE and other opportunities for children in our schools, whether by increasing the number or teachers, by increasing the funding that we have provided or by ensuring that the capital funding is there for provision. We take seriously the responsibility to ensure that every child has access to the sporting activities that are so important for both their health and their future opportunity.

[Baroness Pinnock (LD)]

My Lords, in response to an earlier question, the Minister said that local government could fund additional swimming pools where they have been closed. I am asking her to put her realism hat on to say where that funding will come from. Would she be prepared to go to her department to see whether grants are available for local government to fund new swimming pools, particularly in areas such as Dewsbury in my council, where there is no public swimming pool?

[Baroness Smith of Malvern (Lab)]

To be completely clear, I said that it is a responsibility of local authorities to provide swimming pools. I also conceded that, over recent years, those local authorities have faced considerable financial challenges. I recognise that that is the cause of the issue my noble friend raised. I am not in a position, at this point, from this Dispatch Box, to promise largesse to local authorities. I am sure that the Government are aware of the many challenges local councils face, and we will work, when we can, to help alleviate them.

State Pension: Triple Lock

Tuesday 21st January 2025 Lords Chamber

Question

15:22

Asked by

[Lord Dodds of Duncairn]

To ask His Majesty’s Government whether they have any plans to change the “triple lock” guarantee for state pensions.

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Sherlock) (Lab)]

My Lords, our commitment to the triple lock for the entirety of this Parliament means that spending on people’s state pensions is forecast to rise by over £31 billion. As a result, the yearly state pension will have increased by up to £1,900 by the end of the Parliament. Protecting the triple lock, even in the current economic climate, shows our commitment to pensioners.

[Lord Dodds of Duncairn (DUP)]

I thank the Minister for that Answer and for her commitment to the triple lock. Does she understand the concern among many recipients of the state pension about the long-term future of the triple lock, given a number of recent developments? First, there was the appointment of a Pensions Minister who has described the triple lock as “silly”, “messy” and something that needs to be replaced. Then the leader of the Opposition said last week that her party wants to explore greater means testing of government support, which has given rise to some speculation on this issue.

Many pensioners have already suffered as a result of the loss of the winter fuel allowance, which came completely out of the blue and was not in the manifesto. Given that the UK state pension level is one of the lowest in the developed economies of the world, relative to average earnings, can the Minister give a long-term commitment that the triple lock will remain as long as her party is in power?

[Baroness Sherlock (Lab)]

My Lords, I am certainly not going to answer for the leader of the Opposition. I will allow others who are rather better qualified than I am to do that. But I can assure her that the idea of means testing the triple lock, even if its meaning were clear, is not something we on these Benches embrace.

I can tell the noble Lord very clearly that we have a manifesto commitment that the triple lock will hold for the entirety of this Parliament. That is a huge commitment. The noble Lord mentioned winter fuel payments. Means testing those meant that a number of pensioners lost a sum of £200 or £300. By contrast, the amount of money we are investing in the state pension will mean that the annual rate will go up by up to £1,900 by the end of this Parliament.

The comments by my colleague, the Minister for Pensions, Torsten Bell, were made as a private individual when he was the head of a think tank. It is the job of heads of think tanks to think big ideas and to talk about them. However, I assure the House that Minister Bell, along with me, is fully committed to the triple lock and the Government’s commitment to it. I hope the nation’s pensioners will be delighted to hear that.

[Baroness Altmann (Non-Afl)]

Does the Minister agree that there is an inconsistency in the triple lock between younger pensioners, who tend to be better off and for whom the triple lock provides protection for their full new state pension, and the oldest pensioners, who tend to be poorer, or those on pension credit, who either have only the basic state pension triple lock protected, or, in the case of pension credit, no triple lock protection at all? Is there any plan for a review of how, generally speaking, the distribution of incomes among pensioners and the protection provided by the triple lock interact?

[Baroness Sherlock (Lab)]

The noble Baroness has raised a number of important and connected questions. Let me pick a couple of them out—as many as I can in the time. First, on the distinction between those on the old basic state pension and those on the new state pension, it is not a straight read across that people on one are getting more than people on the other. As she knows, it depends, of course, on what the national insurance contribution rates were and how many years they worked. How much contribution they made determines how much they will get. It is also a fact that many people on the basic state pension were contracted out and therefore will have occupational pensions and will have paid lower national insurance contributions as a result. Whichever of those state pensions people get, we will guarantee that it will go up by the triple lock, which is a massive investment, given the economic climate, and a huge investment in pensions.

On the broader question, the noble Baroness will know that in the second stage of the pensions review we will look at the whole question of the adequacy of pensions. We need to have in our country a system designed to be built, as she knows as a former Pensions Minister, on the foundation of the state pension but with an adequate second pension coming from occupational provision. On that, auto-enrolment, investment in the system, addressing gender pay gaps, and a whole range of questions are important. I will stop talking now as I have talked for far too long. The point is that we are investing in pensioners, we will get the pensions market working and we want this to work for everybody.

[Lord Sikka (Lab)]

My Lords, despite the triple lock, some 2 million pensioners live in poverty, and those numbers will increase because pensioners who live below the poverty line will be denied the winter fuel payment. In light of that, I urge the Minister to restore the full winter fuel payment to all pensioners below the poverty line. If the Minister is going to say that there is some kind of financial black hole, I can suggest tens of ways of filling it. So can the Minister please proceed in making sure that pensioners below the poverty line get the winter fuel payment in full?

[Baroness Sherlock (Lab)]

My Lords, if my noble friend has lots of good ideas about filling in the financial black hole this Government inherited, I would certainly be glad to hear them, and so too would my colleague the Chancellor of the Exchequer. So I encourage him to make a Budget submission and I look forward to reading it.

On the question of pensioners, we were very careful. Means testing the winter fuel payment was not a decision we wanted to take, and we were careful to protect the poorest pensioners—those entitled to pension credit. Those who get pension credit can also find themselves accessing a wide range of other passported benefits that will help support them. We also managed, despite the circumstances, to find the money to maintain the household support fund and to extend it into next year, so that, if there are people still struggling, there is help for them.

There is also plenty of other help and a range of support out there for pensioners, including the warm home discount and cold weather payment. I understand how tough this is. I know that the cost of living is high but the Government are determined to do all they can to make things as easy as possible for people despite the circumstances.

[Viscount Younger of Leckie (Con)]

My Lords, it is interesting to note that, at the recent general election, the average voter in the average constituency was aged over 55. The demographics are interesting; there are lots of these people, and they matter. The last Government recognised and addressed pension poverty, and the need to support pensioners. The Minister will know that we took 200,000 pensioners out of absolute poverty. Those figures go back to 2010. I find it extraordinary that Labour’s own analysis shows a reversal of 25% of this in the first year alone. On the pensions review, can the Minister tell us a bit more about the timing—when we are going to see some action? In my view, this is yet another review, of many. We are not really seeing action.

[Baroness Sherlock (Lab)]

That was a little ungracious, I fear, but I will unpick those points one at a time. First, on poverty, let us have a little statistics duel. The last Labour Government lifted a million pensioners out of poverty. Meanwhile, relative pensioner poverty saw a slight increase in the decade between 2010-11, when Labour was last in power, and 2022-23, the period for which we have the latest statistics. We all have challenges to face here, but this Government are determined to work on that.

On the pensions review, as I have explained to the noble Viscount before, stage 1 was focused on making sure that the market was working properly. Stage 2, which follows next, will focus on making sure that we have the appropriate levels of saving in the market and that people have the vehicles in which to invest. We are determined to do this but we cannot fix the entire pensions market overnight. If we tried to do that, we would make mistakes and the noble Viscount would take me to task, rightly, for those. We will do this in the right time, not the fastest time.

[Baroness Janke (LD)]

My Lords, 1.2 million pensioner households are dependent on the state pension. This includes three times more women than men in single-pensioner households. Does the Minister agree that to abandon the triple lock guarantee would plunge the poorest of pensioners into even deeper poverty and inflict hardship on many others who do not have the security of generous additional pensions?

[Baroness Sherlock (Lab)]

My Lords, I have made our position very clear on the triple lock: this Government are committed to the triple lock for the entirety of this Parliament. I am glad to be able to confirm that again today. However, underneath the noble Baroness’s question is something important about the gender pensions gap. I know that the noble Baroness has raised this before; I commend her for her commitment to this issue, which I share.

There are two things that I would say on this. First, the gender pensions gap starts with the gender pay gap, and this Government are determined to tackle that. For example, we have brought in gender pay audits. Once they come into place, we will be able to see what is happening on the ground, then address it and make it better. Secondly, the new set-up is better. Under the new state pension, we are finding that women pensioners are getting about 98% of what their male counterparts are getting; this was not the case under the old system.

Between these two things, and the review to make sure that private pensions work, as well as making sure that we get people into auto-enrolment, and that they get enough return on their investments, I hope that, bit by bit, we will improve the system for all pensioners, including women. I thank the noble Baroness for continuing to raise this in the House; it is an incredibly important issue.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords—

[Viscount Hailsham (Con)]

My Lords—

[Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)]

It is the turn of the Labour Benches.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, can I assure the Minister that her confirmation today that the Labour Government will keep the triple lock for the whole of the Parliament is the best news for pensioners? I say that as co-chair of the APPG for pensioners and as a former director of Age Concern. We are really grateful to the Minister for that reassurance.

[Baroness Sherlock (Lab)]

My Lords, I am very glad to be able to give my noble friend that news, especially on his birthday. What better present could he possibly want?

Representation of the People (Northern Ireland) (Amendment) Regulations 2025

Tuesday 21st January 2025 Lords Chamber

Motion to Approve

15:35

Moved by

[Baroness Anderson of Stoke-on-Trent]

That the draft Regulations laid before the House on 11 November 2024 be approved.

Considered in Grand Committee on 20 January.

Motion agreed.

Deposit Scheme for Drinks Containers (England and Northern Ireland) Regulations 2024

Tuesday 21st January 2025 Lords Chamber

Motion to Approve

15:35

Moved by

[Baroness Hayman of Ullock]

That the draft Regulations laid before the House on 25 November 2024 be approved.

Relevant document: 11th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument). Considered in Grand Committee on 20 January.

Motion agreed.

Health and Social Care: Winter Update

Tuesday 21st January 2025 Lords Chamber

Statement

The following Statement was made in the House of Commons on Wednesday 15 January.

“With permission, Madam Deputy Speaker, I would like to make a Statement on winter pressures.

I start by saying that my thoughts, and I am sure the thoughts of the whole House, are with the nurse who was stabbed in a horrific attack at Royal Oldham Hospital on Saturday. Nurses are the backbone of our NHS. They should be able to care for their patients without fear of abuse or violence. As she goes through treatment for her injuries, we pray for her speedy and full recovery and that she will be left to recover in peace.

I want to thank our NHS and social care staff for their remarkable effort, stamina and care in the most challenging of circumstances. Over the past few weeks, I have seen at first hand that staff are doing their level best in hospitals and care homes across our country—in the south-west, Essex, London, South Yorkshire and the north-west. Even when patients are left waiting far longer than they should be, and in conditions they should never be made to endure, they are still at pains to stress that the staff are doing their best.

I said on day one in this job that I would never gloss over problems in the health service and I would not pretend that everything is going well when it is not. The experience of patients this winter is unacceptable. I visited one A&E department over Christmas where I was told on the way in that I was lucky as I had come on a quiet day. Yet, as I walked through the hospital, I saw patients on trolleys lining the corridors where they were being treated, without the dignity or safety they should expect as a minimum. I saw frail elderly people on beds in the emergency department, many with dementia, crying out in pain and confusion because, ultimately, they were in the wrong place for their care needs. That was supposedly a good day.

The King’s Fund has said:

‘The NHS is facing a toxic cocktail of pressures this winter’,

and it is right. Fourteen years of under-investment and a lack of effective reform have combined with a tidal wave of rising pressures. This has been the busiest year on record for our ambulance and accident and emergency services. We have had severe cold snaps, with temperatures as low as minus 15 degrees in some parts of England. There are 5,100 patients in hospital beds with flu—more than three times the number at this point last year. Alongside the impact on patients, the rise in respiratory infections saw 53,000 NHS staff forced off work sick in the first week of the year. The result has been patients let down by ambulances that do not arrive on time, A&E departments that leave them waiting 12 hours or more, and the continued normalisation of corridor care. This is not the level of care staff want for their patients, and it is not the level of care this Government will ever accept for patients.

I said coming into this winter that 14 years of failure cannot be turned around in six months. It will take time to fix our broken NHS. Since July, we have done everything we can to prepare the NHS for winter. Following four months of silence from the previous Government, I called the British Medical Association on day one, met it in week one, and within three weeks negotiated a deal to end the junior doctors’ strike with a new deal for resident doctors. For the first winter in three years, staff are on the front line, not the picket line. The Chancellor made immediate in-year investment in the NHS to fill the black hole we inherited and prevent us having to cut back on services.

We have introduced the respiratory syncytial virus vaccine, and more than a million people and counting are protected against that virus. In total, 29 million vaccines have been delivered for flu, Covid-19 and RSV, and more patients are protected against flu than at this stage last winter. If anyone is yet to get themselves vaccinated, it is not too late to protect themselves, their family and the NHS. They can check if they are eligible and book through their local GP or pharmacy.

We are working hand in hand with NHS England and care leaders, and I continue to meet regularly with senior leaders in social care, NHS England and the UK Health Security Agency. We have an excellent national operations centre running seven days a week. Its data allows us to zoom in—not just on individual hospitals but on individual patient waiting times—to respond in real time to spikes in pressures, and to manage threats as they emerge. The NHS is now using critical incidents proactively to focus minds and get the system responding to de-escalate and steer back to safer waters. I am happy to report that there is currently one live critical incident, down from 24 last week.

However, I do not pretend that that is good enough. It will take time to get back to the standards that patients deserve, but it can be done. That will require a big shift in the focus of healthcare—out of the hospital and into the community—to free up beds for emergency patients and to prevent people having to call an ambulance or go to A&E in the first place. That is the reform agenda that the Government are enacting.

In recent weeks, we have announced steps to begin rebuilding general practice, and immediate and long-term action in social care. When we came into office, we inherited a situation in which qualified GPs could not get a job, while patients could not get a GP. That is why, within weeks, I found just shy of £100 million to recruit 1,000 more GPs by April. We have recruited hundreds of GPs to the front line already, and we will recruit hundreds more in the months to come. We have announced an extra £889 million in funding for general practice, which is the biggest funding uplift in years, alongside a package of reforms to bust bureaucracy, slash unnecessary targets and give GPs more time to spend with their patients—our first step towards bringing back the family doctor.

Ten days ago, I visited a care home in Carlisle that was offering intermediate step-down care for NHS hospitals. It was able to give patients en suite bathroom facilities in care homes, with rehab, all at half the price it was costing the taxpayer to keep patients in a hospital bed up the road. That is better for patients and less expensive for taxpayers. Yet there are 12,000 patients in hospital beds today who do not need to be there but cannot be discharged because appropriate care is not available. That is why the Government are making up to £3.7 billion of extra funding available for local authorities that provide social care. It is why we are delivering an extra 7,800 home adaptations through the disabled facilities grant this year and next year. It is why we have delivered the biggest increase in carer’s allowance since the 1970s, worth an extra £2,300 to family carers. It is why are introducing fair pay agreements to tackle the 131,000 vacancies in social care. And it is why we have appointed Baroness Louise Casey to help build a national consensus on the long-term solutions for social care.

From visiting emergency departments, monitoring the performance of the NHS over this winter and noting the variation in performance across the country, I know that we can clearly get our ambulance and A&E services working better. Before the spring, we will set out the lessons learned from this winter and the improvements that we will put in place ahead of next winter.

Finally, let me be clear on corridor care, which became normalised in NHS hospitals under the previous Government: I will never accept or tolerate patients being treated in corridors. It is unsafe, undignified and a cruel consequence of 14 years of failure on the NHS, and I am determined to consign it to the history books. I cannot and will not promise that patients will not be treated in corridors next year. It will take time to undo the damage that has been done to our NHS, but that is this Government’s ambition.

Annual winter pressures should not automatically lead to an annual winter crisis—indeed, there were no annual winter crises by the end of the previous Labour Government. That is why this Government are investing an extra £26 billion in our health and care services, and undertaking the fundamental reform that both services need. That will take time, but we will deliver an NHS and a national care service that provide people with care where and when they need it. I commend this Statement to the House”.

15:36

[Lord Kamall (Con)]

My Lords, when this Statement was given in the other place last Wednesday, the situation in the NHS had deteriorated: the weekly influenza hospital admission rate for the last week of 2024 increased to 14 per 100,000, with almost 11 per 100,000 being the figure for the previous week. Thankfully, I can see that the rates for influenza admissions are falling: the admission rate for the second week of this year fell to 9.5 per 100,000, compared to more than 13 per 100,000 the previous week.

While this fall in admissions is welcome, may I ask the Minister about the latest advice the Government have received? Do they believe that we are out of the winter woods yet, or are they being warned about the possibility of admission rates for seasonal respiratory viruses rising again, and the need to remain vigilant? Also, do the Government have any indication of whether this improvement is temporary, or whether things will get worse again? If they are planning for a possible rise in admission rates, what plans do they have to put in place sufficient capacity to meet an increase in the number of patients? What options are the Government looking at? For example, are they having conversations with the independent sector on the use of some of its hospital capacity?

One of the solutions, surely, to the winter pressures that successive Governments experience is better and faster data reporting. It can often take several weeks for data from hospitals and the front line to filter through to statistical reports. The problem is that there are data time lags, which means that the NHS has less information ready to figure out the gaps in performance and capability. If the NHS is adequately to plan to alleviate pressures, live data reporting must be a priority.

May I therefore ask the Minister first to commit to pushing forward implementation of faster and more efficient data collection with her departmental colleagues, in order to ensure reporting to help better plan for future winters? In that vein, how confident are the Government that they will learn the lessons from this year’s winter crisis and ensure that they are better prepared for next winter, in order to deliver on their promise to end the cycle of winter crises in the NHS? I look forward to the Minister’s response.

[Baroness Brinton (LD)]

My Lords, I want to echo the comments of the Secretary of State in the other place about the appalling treatment of Achamma Cherian, who was stabbed in the Royal Oldham Hospital last Saturday. It is absolutely intolerable for any member of NHS staff to be treated in this way. Can the Minister reassure your Lordships’ House that staff in A&E especially are protected, but also throughout our NHS?

I want also to start by thanking our NHS and social care staff for their remarkable effort. One of the problems that our NHS and social care staff have faced is total exhaustion since the winter of 2019-20. Immediately following the winter pressures, we were faced with a pandemic. Everybody in the NHS is now saying that this winter feels much worse, simply because it is yet another year of winter pressures.

Ambulance services have had to change their advice across the country to warn of being overstretched. A leaked memo from the West Midlands Ambulance Service says that patients who had collapsed with abdominal pain and vomiting, which are category 3 and 4 calls, and even, in the periods of highest demand, with heart attack or stroke, which is category 2, were told, “We don’t have an ambulance available to respond to you and it may be hours before one is available. Is there any way you can arrange safely to get to a hospital emergency department?”

I am minded to tell the House that, when I got a bus the other day that passed University College Hospital at Warren Street, a number of people got off who were clearly extremely unwell and being taken to the hospital by their families. What are the Government planning to do to support patients who need urgent ambulance services that are not available—for reasons that we understand are often to do with backlogs in A&E, queues and so on?

The Statement says that the experience of patients this winter is unacceptable, and we on these Benches agree. It is the opposite of a vicious circle: it is a circle of hell, not just for patients but for staff. I note that the Secretary of State commented in the Statement on what he saw when he was visiting, but worse is to come. We know from the Royal College of Nursing survey published earlier this week that we have patients dying in corridors, with nurses feeling absolutely unable to provide support for them.

It is not just 14 years of underinvestment; frankly, we are now seeing the problems of the wrong reforms that happened some years ago now. That has resulted in particular in pressure on primary care. The Statement focuses on hospitals but does not address the real crises that are going on in primary care.

In addition to the issues of funds and the planned extra doctors, who will take a while to come in, what are the Government planning to do to prevent hospitals constantly referring patients back to primary care when they need just an X-ray or a test, rather than being dealt with by the doctor they are seeing in hospital?

The emphasis of the Statement is obviously on the current high level of infections. It comments on the more than 5,000 patients in hospital beds with flu, but it does not say that we need to add to that RSV, pneumonia and Covid. The problem is that there is no weekly data from the UKHSA, which no longer collects and publishes such data. I hope the Government are prepared to consider reinstating that. An interesting graph on social media about two weeks ago set the peaks and troughs of all these infection spikes over the last three years against the increasingly long absences of NHS staff due to extended sickness, and they mirror exactly. I ask the Minister—who will remember that when she was in opposition, I asked this of many Ministers—what is happening in hospitals to encourage staff, when facing infection spikes, to wear masks and to encourage others to do so? This is about getting the basics right.

The Chancellor has made an investment this year. Compared to past winter investments to cover the winter crisis, how much is going to be there for the long term—or, by the time we get to March, will it all have been sucked up by the current winter crisis?

The Statement says that it is not too late to get yourself vaccinated. I have to tell noble Lords that, if you are a clinically vulnerable patient—and I count myself in that category—it is. GP services keep being given deadlines, which they pass on to patients. Patients then discover that they cannot get the vaccines at their local surgery. If they are inspired to go and find help elsewhere, that is fantastic. However, I suddenly got lots of texts from my surgery saying, “You haven’t been vaccinated yet. Go and get vaccinated”. I had been vaccinated. The problem is that the pharmacy database does not relate to the GP database. When will that be remedied? I have been going on about this problem for well over a decade. It is ridiculous that I have to intervene and say, “Actually I have had it—at your request”.

I have talked before about primary care, and it is shameful that the previous Government did not provide enough vacancies for newly qualified GPs last year. I credit this Government for providing some support and money this year to make sure that is happening. Will this continue to happen in future years or is it one-off, one year’s money? While the extra funding for general practice is welcome, it is not enough without the contractual change between primary care and secondary care. Have the Government taken account of that? It is not solving the real problem, which is that GPs and their staff are facing phenomenal pressure in their systems.

To conclude, most people are saying that this is the worst crisis we have faced in years. Unlike other parties, particularly the former Government, I am not prepared to blame the current Government for that. I credit the Government for the steps they are taking, but will they look at the longer-term issues that need to be dealt with to get our NHS back in a stable condition so that patients can rely on the service, from ambulances through A&E, general practice and hospital service?

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I pay tribute to staff in health and social care for their commitment all year round, but particularly when the pressures are on us all in the winter. The noble Baroness, Lady Brinton, mentioned the nurse who was attacked at Royal Oldham Hospital. Our thoughts and prayers continue to be with her, her family and friends, and we wish her a speedy recovery. I can assure the noble Baroness and your Lordships’ House that protection of staff, and freedom to work and move around without abuse, harassment and discrimination, are all very important to us as a Government. There will be more about that as we talk about the workforce plan.

Let me make a few general points. I thank the noble Baroness and the noble Lord, Lord Kamall, for their questions and observations, all of which are important. As the Secretary of State said in the other place, it is crucial that we are honest, and I hope by now that your Lordships’ House will realise that we are, as a new Government, not frightened to say what the reality is, which is why the noble Lord, Lord Darzi, was commissioned to look into the state of the NHS. The noble Baroness, Lady Brinton, asked about long-term issues and that is exactly where we are.

I acknowledge the significant pressures faced by the NHS this year. However, cold weather, a sharp rise in flu and other infections, and other stresses and strains are not unusual, and we should not be surprised that winter comes every year. It is not acceptable to be going into a crisis every year. We have also taken immediate action. For example, beating the backlog of waiting lists is crucial, as is the 10-year plan because it will create an NHS for all year round. In addition, the emphasis is on getting social care into the right place, both in the immediate and the long term, because—as noble Lords regularly and rightly say—it is inextricably linked with the NHS.

Both Front Bench speakers talked about data and planning and preparation. There was a great deal of planning and preparation for what was then the upcoming winter, which we are now in, across health and social care. In the words of my right honourable friend the Secretary of State, we have been doing our best with the hand that we have been dealt. The noble Baroness, Lady Brinton, acknowledged that and I am grateful for her acknowledgement and her support. Annual winter pressures will always exist, but they should not automatically lead to an annual winter crisis.

These issues will not be solved overnight. It is going to take time, but we believe it can be done. That is why we are making investments—the noble Baroness asked about investment. The Budget committed an extra £26 billion to health and care—not as a knee-jerk reaction but to allow us to plan now and for the future.

On planning and preparation, I assure your Lordships’ House that the Secretary of State meets senior leaders in social care regularly. He also meets the UK Health Security Agency and NHS England regularly. Those groups are key to Ministers keeping on top of this.

We also have an excellent national operations centre, which I pay tribute to—that goes to the point raised by the noble Lord, Lord Kamall. The data available from it allows a focus on individual hospitals and individual patient waiting times. As of last week, we were down to one critical incident across the country, which compares positively with the 24 that were in place before.

The noble Lord, Lord Kamall, asked about lessons learned—if I might paraphrase it like that. I assure the noble Lord that before the spring we will set out lessons from this winter and the improvements that we will make ahead of next winter. For me, that is very welcome, because that is about acting as quickly as possible and looking to the future.

The noble Baroness, Lady Brinton, spoke about primary care, which is key to taking pressure off. I know that the noble Baroness is well aware of the three key pillars of the 10-year plan, which will be available in the not-too-distant future. I am sure that your Lordships’ House will want to discuss that at length, and I will be pleased to do so. To take the points from both noble Lords, that is all about the move from analogue to digital, from treating sickness to prevention, and from hospital to community. Those are not just words; they will greatly assist with the long-term planning that I know both noble Lords are seeking.

The noble Baroness referred to primary care. We have committed to recruiting over 1,000 newly qualified GPs through an £82 million boost to the additional roles reimbursement scheme. The key thing about that is that it will increase the number of appointments delivered in general practice. If I might make another point to the noble Baroness, we recently made announcements about GPs being able to make a direct referral for tests and scans to stop the real “around the houses” of sending a patient to see a consultant, who then sends them away for the relevant tests and scans before they can see them in the round. That will do a lot to reduce waiting times and increase access.

The noble Baroness was right to raise corridor care. She will have heard the Secretary of State say that

“we will never accept or tolerate patients being treated in corridors. It is unsafe, undignified” ”.—[Official Report, Commons, 15/1/25; col. 364.]

He has also made it clear that he is ashamed of that situation. I say that in a spirit of honesty. That is a feeling I share. The Secretary of State also said that he could not, in all honesty, promise an end to corridor care by next year because, as he rightly observed, it will take time to undo the damage that has got us to this place. It will be through investment, reform and planning that we will be able to do that.

The noble Baroness also asked about winter funding. That is a very important point, because over many years we have seen last-minute winter funding arriving too late to make a difference, no matter the intention. This time, as I mentioned, the Chancellor allocated nearly £26 billion to the NHS for 2025-26 in the Autumn Budget. That means, in comparison with the funding that it would have got under the last Government, that the NHS will receive £2 billion more. For me, perhaps the most important point is the ability to plan ahead and factor in the need to support preparation for winter.

There are a number of other points that I could make and I am sure that noble Lords, as we move to further questions, will raise them. In the meantime, I thank both Front Benches for their interest and their questions, but also for their challenge.

15:55

[Lord Laming (CB)]

The Minister will be pleased to know that the House was glad that she referred to social care. Every day in the winter there are thousands of patients who no longer need to be in hospital; it is not good for them to remain in hospital, and it is not good for the NHS that they remain in hospital. In addition to the considerations of the social care commission, which will take some time to go through, will it be possible to have a proper endeavour to address these issues before next winter? As the Minister said, there always seems to be a winter crisis now. Would it be possible to get local government and the charities together, but also—and this is not difficult to do—to respect the role of unpaid carers and to provide support for people who are, in effect, taking over the care of patients who would otherwise remain in hospital?

[Baroness Merron (Lab)]

The noble Lord is right to remind us of the challenge of having people in the right place, rather than in hospital when they do not need to be there. We have already taken action, so I am pleased to be able to reassure him that, while the noble Baroness, Lady Casey, will look at long-term solutions for social care, she will present a report within a year from her commencement, which will add to the actions that we have already taken.

The noble Lord talked about unpaid carers—and I certainly share the respect that he holds for unpaid carers, so I am very pleased that we have given the biggest boost in income to family carers through eligibility for the carer’s allowance. That has meant an additional —on average, of course—£2,300 a year. That is the biggest boost since carer’s allowance was introduced in the 1970s. We are also legislating for a fair pay agreement, for the first time ever, which will help to tackle the number of vacancies, now standing at 131,000. There will be immediate action, because discharge requires being able to be in the right environment, which might be home but it might need an adaptation. Through the disabled facilities grant there will be a further 7,800 adaptations to homes both this year and next year. So we have taken the immediate action—and, yes, there is a lot more to do.

[Baroness Winterton of Doncaster (Lab)]

My Lords, my noble friend the Minister has just reiterated what the Statement said—that one of the key levers for easing winter pressures is NHS reform, particularly moving some hospital services into the community, which could deal with some of the issues raised by the noble Baroness, Lady Brinton, including X-rays, scans, tests and so on. Does she agree that this will require close collaboration between NHS trusts, hospital trusts, local authorities, ICBs and, sometimes, the private sector? Will she work with Ministers in other departments, not only to remove any obstacles there might be to this but to actively encourage it to happen at the local level? By the way, there are some good examples in South Yorkshire of this happening, and proposals for it to happen.

[Baroness Merron (Lab)]

My noble friend is quite right to highlight the good examples in South Yorkshire. There are good examples across the country and one of our challenges, as the Secretary of State has said, is taking the best to the rest. This is a very good example of that. I certainly agree with her observations. This requires joined-up working locally and nationally, which is why we work closely with other departments in both the immediate term and the longer term as we seek to reform health and social care.

[Baroness Watkins of Tavistock (CB)]

My Lords, I declare my interests as an NHSE board member and a fellow of the Royal College of Nursing. I absolutely acknowledge that the Health Secretary and the team, including the Minister, are trying to resolve many of these problems. However, I echo the comments of the noble Lord, Lord Laming, that we need something much more quickly than the long-term plan. Can serious consideration be given to funding four or six weeks of care as soon as people leave hospital, whether or not there is a legal entitlement to that cost, to get the one in seven people currently lingering in hospital beds out into better facilities so that they can be supported by their families and friends? Also, the criticism of the advertisements for corridor nurses is absolutely incorrect; we need a higher percentage of nurses in A&E and surrounding departments if they have a much higher number of patients than they were originally established for.

[Baroness Merron (Lab)]

I thank the noble Baroness for bringing her comments before the House and for acknowledging our efforts, direction and commitment, because this is not easy and, as she knows, will not happen overnight. However, we need to tackle delayed discharge, following the point made by my noble friend Lady Winterton, through the development of local partnership working between the NHS and social care and making sure that the right support is there to return home—if that is the best place for people—or for an intermediate arrangement. This should not be just an issue of hospital or home; sometimes people need facilities along that trajectory, because they have different needs and their conditions do not stay still. That is why it has to be local partnerships.

Every acute hospital has access to a care transfer hub which brings together professionals from the NHS and social care to manage discharges of people with more complex needs who need extra support. We will shortly publish the better care fund policy framework, which will drive greater impact from over £9 billion of public spending on integrated care. Reducing delayed discharge will be a key part of that. I heard the request from the noble Baroness. She will understand that we have to take account of the financial situation we inherited, but we also need innovation, creativity and practicality to find answers to these very long-standing challenges.

[The Lord Bishop of Manchester]

My Lords, the nurse who was attacked and injured at work recently and who has been kindly mentioned several times already today is a member of one of our Oldham congregations. I assure your Lordships’ House that she and her family remain very much in our prayers in Manchester.

Research by the National Churches Trust published last year shows that the ministry of the UK’s church buildings saves the NHS £8.4 billion every year. Church projects help keep many people out of hospital; they support others when discharged. Other faith communities do similar work and many of them do it in partnership with us.

Secondly, the problem in winter—even in the balmy climate of Manchester—is that it gets cold. Part of the work to prevent serious illness lies in keeping people warm and offering them social contexts where some early signs of declining health can be picked up before they become too serious. Many of my churches in Manchester, along with other places of worship all across the nation, take part in the Warm Welcome Campaign which does precisely that. They are open maybe for a morning and offer a free lunch as well as a warm space where people can just socialise and not worry about their heating bills.

Does the Minister agree with me that places of worship make a vital contribution to the nation’s health and save the NHS money? Will she not only join me in thanking them but ensure that those of her ministerial colleagues who are presently considering whether the Listed Places of Worship Grant Scheme should be extended beyond the present financial year are apprised of these facts?

[Baroness Merron (Lab)]

I made a call for creativity, and I compliment the right reverend Prelate on his creativity; I will certainly pass on his comments to my colleagues. I am delighted to agree with him about the importance not just of places of worship but of communities, including faith communities. As the right reverend Prelate said, we can find the finest examples of community provision which support the NHS and social care through churches, synagogues, mosques and other places of worship. I pay tribute to and thank all those that do this. Of course, this is overwhelmingly done by volunteers, and I pay tribute to all of the volunteers in faith communities and beyond.

[Baroness Pitkeathley (Lab)]

My Lords, the Statement mentions 12,000 patients in hospital beds where they do not need to be. The noble Lord, Lord Laming, has rightly drawn attention to the fact that many of those people discharged are dependent on the care provided by their families. In spite of many reports written about the need to plan discharge from hospital—at least one of them written by me 40 years ago—too much discharge still happens at pace and without planning. It is Friday afternoon and suddenly, the consultant needs the bed. Oh, funny that: there is no care available in the local community. Would the Minister agree that all the reports about discharge indicate that you should start planning for discharge the minute the patient is admitted, and that this planning should include those who are going to provide the care, whether that is the voluntary sector or the patient’s own family?

[Baroness Merron (Lab)]

I agree with my noble friend about the need to plan sooner. It gives the opportunity to assess what is, is not, and can be made available. I also very much share my noble friend’s comments about involvement—involvement of the patient themselves but also of their loved ones. I know from the reports that my noble friend has done over the years how she has shone a spotlight on the exclusion of the very people who could assist in the discharge procedure and make it go smoothly. I welcome her comments that the discharge is as important as the admission and the care people get while they are in hospital.

[Lord Bichard (CB)]

I too acknowledge the commitment and effort being made, and also, of course, the commitment on the front line. I am not a health professional—and I feel particularly conscious of that, given some of the people in the Chamber this afternoon—but I have spent too much time in the last 12 months as a client and had much time to reflect upon the fact that the problems with the health service are much the same as the problems in most other public services. First of all, we do not design the service around the client and the patient, and, whatever I am told, that still seems to me to be so obvious. We do not join up the various services: pharmacies, GPs and district nurses, who I have got to know quite well. We do not make effective use of digital or AI, and we do not make good use of the community and voluntary sector and charities. Sometimes, we resent them, or they are resented. Of course, there is the issue of social care.

I think we all know this, and I am hearing the right things coming out of government at the moment, but, actually, these things have been there for 20 years. They have been said about and talked about for 20 years, yet things have not really changed. I really want to be convinced that they are going to change, but I want to be convinced that we are learning from the lessons of past failures and that we are focusing on owning up to those failures, because that is the only way in which we will move on. Can the Minister reassure me that we are looking at why it has taken so long and that we are really determined to take on the barriers?

[Baroness Merron (Lab)]

I am grateful to the noble Lord. These things do not just happen; we are here because of a failure to reform, a failure to invest and a failure to get the right productivity and results that we need. Indeed, there has been a failure over a number of years to do exactly what the noble Lord spoke about. I could not have put it better myself. The noble Lord came up with the most marvellous advert in his comments for the central pillars, to which I referred, of the 10-year plan, which will soon be available, following the biggest ever consultation in the history of the NHS.

The noble Lord talked about community. One of the things that we will be ensuring will happen in the NHS is a movement of focus from hospital into community. The noble Lord talked about digital. We will move from analogue to digital. He also talked about services being around the patient. I have frequently said that we need to get the services around the patient, not the patient around the services. There is also the move from sickness to prevention. All these three pillars will completely transform the National Health Service.

The noble Lord also referred to the third sector, including charities. We could not deliver much of what we deliver without them, and charities often are extremely well-placed to do things that statutory services cannot, so they are part of the equation and I offer all respect to them.

[Baroness Cass (CB)]

My Lords, the investment described in additional GPs is really welcome, as are the other reforms in primary care. However, one of the challenges in previous recruitment drives into primary care has been losing people from the other end and not being able to retain. Therefore, will the Minister tell us about retention strategies and how they will counteract that really troubling trend?

[Baroness Merron (Lab)]

The noble Baroness is quite right. It is not just about recruitment, although it gives me the opportunity to speak also on the previous point made by the noble Lord about the importance and effectiveness of interdisciplinary teams. Again, the workforce we need must be one that can provide for the 10-year plan, and that plan means that some things will take 10 years, while we are already doing other things. We have to make sure we have the right training. On the point about retention, we know what staff are saying to us: their morale is low; they are under pressure and feel exposed, and, in many cases, they feel frightened. I am shocked to find the amount of racism that is experienced. It is not possible to overlook any of these things, so in the coming year, as we give more information on the workforce plan—and I am looking forward to doing so—it will be a workforce for now and the future, not the past.

Data (Use and Access) Bill [HL]

Report stage
Tuesday 21st January 2025 Lords Chamber

Report (1st Day)

Relevant documents: 3rd Report from the Constitution Committee, 9th and 12th Reports from the Delegated Powers Committee. Scottish, Welsh and Northern Ireland Legislative Consent sought.

16:14

Report received.

Clause 1: Customer data and business data

Amendment 1

Moved by

[Baroness Kidron]

1: Clause 1, page 3, line 11, at end insert—
“(5A) In subsection (2), references to information includes inferred data.”Member's explanatory statement
This amendment ensures that when traders are required to provide information relating to goods, services and digital content supplied or provided to the customer that includes information that has been created using AI to build a profile about them.

[Baroness Kidron (CB)]

My Lords, last week the Government published the AI Opportunities Action Plan and confirmed that they have accepted or partially accepted all 50 of the recommendations from the report’s author, Matt Clifford. Reading the report, there can be no doubting Government’s commitment to making the UK a welcoming environment for AI companies. What is less clear is how creating the infrastructure and skills pool needed for AI companies to thrive will lead to economic and social benefits for UK citizens.

I am aware that the Government have already said that they will provide further details to flesh out the top-level commitments, including policy and legislative changes over the coming months. I reiterate the point made by many noble Lords in Committee that, if data is the ultimate fuel and infrastructure on which AI is built, why, given that we have a new Government, is the data Bill going through the House without all the strategic pieces in place? This is a Bill flying blind.

Amendment 1 is very modest and would ensure that information that traders were required to provide to customers on goods, services and digital content included information that had been created using AI to build a profile about them. This is necessary because the data that companies hold about us is already a combination of information proffered by us and information inferred, increasingly, by AI. This amendment would simply ensure that all customer data—our likes and dislikes, buying habits, product uses and so on—was disclosable, whether provided by us or a guesstimate by AI.

The Government’s recent statements have promised to “mainline AI into the veins” of the nation. If AI were a drug, its design and deployment would be subject to governance and oversight to ensure its safety and efficacy. Equally, they have said that they will “unleash” AI into our public services, communities and business. If the rhetoric also included commitments to understand and manage the well-established risks of AI, the public might feel more inclined to trust both AI and the Government.

The issue of how the data Bill fails to address AI— and how the AI Opportunities Action Plan, and the government response to it, fail to protect UK citizens, children, the creative industries and so on—will be a theme throughout Report. For now, I hope that the Government can find their way to agreeing that AI-generated content that forms part of a customer’s profile should be considered personal data for the purposes of defining business and customer data. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, this is clearly box-office material, as ever.

I support Amendment 1 tabled by the noble Baroness, Lady Kidron, on inferred data. Like her, I regret that we do not have this Bill flying in tandem with an AI Bill. As she said, data and AI go together, and we need to see the two together in context. However, inferred data has its own dangers: inaccuracy and what are called junk inferences; discrimination and unfair treatment; invasions of privacy; a lack of transparency; security risks; predatory targeting; and a loss of anonymity. These dangers highlight the need for strong data privacy protection for consumers in smart data schemes and more transparent data collection practices.

Noble Lords will remember that Cambridge Analytica dealt extensively with inferred data. That company used various data sources to create detailed psychological profiles of individuals going far beyond the information that users explicitly provided. I will not go into the complete history, but, frankly, we do not want to repeat that. Without safeguards, the development of AI technologies could lead to a lack of public trust, as the noble Baroness said, and indeed to a backlash against the use of AI, which could hinder the Government’s ambitions to make the UK an AI superpower. I do not like that kind of boosterish language—some of the Government’s statements perhaps could have been written by Boris Johnson—nevertheless the ambition to put the UK on the AI map, and to keep it there, is a worthy one. This kind of safeguard is therefore extremely important in that context.

[Viscount Camrose (Con)]

I start by thanking the noble Baroness, Lady Kidron, for introducing this group. I will speak particularly to the amendment in my name but before I do so, I want to say how much I agree with the noble Baroness and with the noble Lord, Lord Clement-Jones, that it is a matter of regret that we are not simultaneously looking at an AI Bill. I worry that this Bill has to take a lot of the weight that an AI Bill would otherwise take, but we will come to that in a great deal more detail in later groups.

I will address the two amendments in this group in reverse order. Amendment 5 in my name and that of my noble friend Lord Markham would remove Clause 13, which makes provision for the Secretary of State or the Treasury to give financial assistance to decision-makers and enforcers—that is, in essence, to act as a financial backstop. While I appreciate the necessity of guaranteeing the stability of enforcers who are public authorities and therefore branches of state, I am concerned that this has been extended to decision-makers. The Bill does not make the identity of a decision-maker clear. Therefore, I wonder who exactly we are protecting here. Unless those individuals or bodies or organisations can be clearly defined, how can we know whether we should extend financial assistance to them?

I raised these concerns in Committee and the Minister assured us at that time that smart data schemes should be self-financing through fees and levies as set out in Clauses 11 and 12 and that this provision is therefore a back-up plan. If that is indeed the case and we are assured of the self-funding nature of smart data schemes, then what exactly makes this necessary? Why must the statutory spending authority act as a backstop if we do not believe there is a risk it will be needed? If we do think there is such a risk, can the Minister elaborate on what it is?

I turn now to the amendment tabled by the noble Baroness, Lady Kidron, which would require data traders to supply customers with information that has been used by AI to build a profile on them. While transparency and explainability are hugely important, I worry that the mechanism proposed here will be too burdensome. The burden would grow linearly with the scale of the models used. Collating and supplying this information would, I fear, increase the cost of doing business for traders. Given AI’s potential to be an immense asset to business, helping generate billions of pounds for the UK economy—and, by the way, I rather approve of the boosterish tone and think we should strive for a great deal more growth in the economy—we should not seek to make its use more administratively burdensome for business. Furthermore, since the information is AI-generated, it is going to be a guess or an assumption or an inference. Therefore, should we require companies to disclose not just the input data but the intermediate and final outputs? Speaking as a consumer, I am not sure that I personally would welcome this. I look forward to hearing the Minister’s responses.

[The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)]

I thank the noble Baroness, Lady Kidron, and the noble Viscount, Lord Camrose, for their proposed amendments and continued interest in Part 1 of this Bill. I hope I can reassure the noble Baroness that the definition of customer data is purposefully broad. It encompasses information relating to a customer or a trader and the Government consider that this would indeed include inferred data. The specific data to be disclosed under a smart data scheme will be determined in the context of that scheme and I reassure the noble Baroness that there will be appropriate consultation before a smart data scheme is introduced.

I turn to Amendment 5. Clause 13 provides statutory authority for the Secretary of State or the Treasury to give financial assistance to decision-makers, enforcers and others for the purpose of meeting any expense in the exercise of their functions in the smart data schemes. Existing and trusted bodies such as sector regulators will likely be in the lead of the delivery of new schemes. These bodies will act as decision-makers and enforcers. It is intended that smart data schemes will be self-financing through the fees and levies produced by Clauses 11 and 12. However, because of the nature of the bodies that are involved, it is deemed appropriate for there to be a statutory spending authority as a backstop provision if that is necessary. Any spending commitment of resources will, of course, be subject to the usual estimates process and to existing public sector spending controls and transparency requirements.

I hope that with this brief explanation of the types of bodies involved, and the other explanations, the noble Baroness will be content to withdraw Amendment 1 and that noble Lords will not press Amendment 5.

[Baroness Kidron (CB)]

I thank the Minister for his reassurance, particularly that we will have an opportunity for a consultation on exactly how the smart data scheme works. I look forward to such agreement throughout the afternoon. With that, I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Clause 2: Power to make provision in connection with customer data

Amendment 2

Moved by

[Baroness Kidron]

2: Clause 2, page 4, line 1, after “to” insert “the customer's data rights or”
Member's explanatory statement
This amendment adds enacting data rights to the list of actions that the Secretary of State or the Treasury can enable an “authorised person” to take on behalf of customers. This would make it possible for customers to assign their data rights to a third party to activate on their behalf.

[Baroness Kidron (CB)]

My Lords, in moving Amendment 2 I will speak to Amendments 3, 4, 25, 42 and 43, all of which are in my name and that of the noble Lord, Lord Clement-Jones. The very detailed arguments for Amendments 25, 42 and 43 were made during the DPDI Bill and can be found at col. GC 89 of vol. 837 of Hansard, and the subsequent arguments for their inclusion in this Bill were made in Committee at col. GC 454. For that reason, I do not propose to make them in full again. I simply say that these amendments for data communities represent a more ambitious and optimistic view of the Bill that would empower citizens to use data law to benefit those with common interests. The example I gave last time was of gig workers assigning their data rights to an expert third party to see whether they were being fairly compensated. That is not something that any individual data subject can easily do alone.

The new Amendments 2, 3 and 4 demonstrate how the concept of data communities might work in relation to the Government’s smart data scheme. Amendment 2 would add enacting data rights to the list of actions that the Secretary of State or the Treasury can enable an authorised person to take on behalf of customers. Amendment 3 requires the Secretary of State or the Treasury to include data communities in the list of those who would be able to activate rights, including data rights on a customer’s behalf. Amendment 4 provides a definition of “data communities”.

Data communities are a process by which one data holder can assign their rights for a given purpose to a community of people who agree with that purpose. I share the Government’s desire to empower consumers and to promote innovation, and these amendments would do just that. Allowing the sharing of data rights of individuals, as opposed to specific categories of data, would strengthen the existing proposal and provide economic and social benefit to the UK and its citizens, rather than imagining that the third party is always a commercial entity.

In response to these amendments in Committee, the then Minister said two things. The first was that the UK GDPR does not prevent data subjects authorising third parties to exercise certain rights on their behalf. She also warmly said that something of this kind was being planned by government and invited me and other noble Lords to discuss this area further. I made it clear that I would like such a meeting, but it has only just been scheduled and is planned for next week, which clearly does not meet the needs of the House, since we are discussing this today. I would be grateful if the current Minister could undertake to bring something on this subject back at Third Reading if we are not reassured by what we hear at the meeting.

While the UK GDPR does not prevent data subjects authorising third parties to exercise certain rights on their behalf, in the example I gave the Minister in Committee it took many years and a bespoke agreement between the ICO and Uber for the 300-plus drivers to combine their data. Under equivalent GDPR provisions in European law, it required a Court of Appeal judgment in Norway before Uber conceded that it was entitled to the data on the drivers’ behalf. A right that cannot be activated without legal action and years of effort is not a right fully given; the UK GDPR is not sufficient in these circumstances.

I want to stress that these amendments are not simply about contesting wrongs. Introducing the concept of data communities would facilitate innovation and promote fairness, which is surely an aim of the legislation.

16:30

Before I sit down, I wanted to acknowledge that the AI action plan recommends in many places making it easier for organisations, including commercial companies, to access datasets, but it is silent on how citizens might be able to access and share their data collectively. Instead, it appears to assume that data mining is something that will happen to them, rather than by them or on their behalf. Matt Clifford, its author, is an AI tech investor. While there is much on which to agree with him when it comes to skills or investment in infrastructure, the relentless tech sector viewpoint, rather than that of worker, creator, citizen or child, is a weakness in itself and a problem in its timing. Those of us who would most like to be supportive of the UK being a tech-enabled nation find the needs of our communities and fellow citizens unserved by this unbridled tech utopianism that both recent history and some of the sector’s greatest innovators would suggest is very unwise. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, the noble Baroness, Lady Kidron, is setting a cracking pace this afternoon, and I am delighted to support her amendments and speak to them. Citizens should have the clear right to assign their data to data communities or trusts, which act as intermediaries between those who hold data and those who wish to use it, and are designed to ensure that data is shared in a fair, safe and equitable manner.

A great range of bodies have explored and support data communities and data trusts. There is considerable pedigree behind the proposals that the noble Baroness has put forward today, starting with a recommendation of the Hall-Pesenti review. We then had the Royal Society and the British Academy talking about data stewardship; the Ada Lovelace Institute has explored legal mechanisms for data stewardship, including data trusts; the Open Data Institute has been actively researching and piloting data trusts in the real world; the Alan Turing Institute has co-hosted a workshop exploring data trusts; and the Royal Society of Arts has conducted citizens’ juries on AI explainability and explored the use of data trusts for community engagement and outreach.

There are many reasons why data communities are so important. They can help empower individuals, give them more control over their data and ensure that it is used responsibly; they can increase bargaining power, reduce transaction costs, address data law complexity and protect individual rights; they can promote innovation by facilitating data-sharing; and they can promote innovation in the development of new products and services. We need to ensure responsible operation and build trust in data communities. As proposed by Amendment 43 in particular, we should establish a register of data communities overseen by the ICO, along with a code of conduct and complaint mechanisms, as proposed by Amendment 42.

It is high time we move forward on this; we need positive steps. In the words of the noble Baroness, Lady Kidron, we do not just seek assurance that there is nothing to prevent these data communities; we need to take positive steps and install mechanisms to make sure that we can set them up and benefit from that.

[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for leading on this group, and the noble Lord, Lord Clement-Jones, for his valuable comments on these important structures of data communities. Amendments 2, 3, 4 and 25 work in tandem and are designed to enable data communities, meaning associations of individuals who have come together and wish to designate a third party, to act on the group’s behalf in their data use.

There is no doubt that the concept of a data community is a powerful idea that can drive innovation and a great deal of value. I thank the noble Lord, Lord Clement-Jones, for cataloguing the many groups that have driven powerful thinking in this area, the value of which is very clear. However—and I keep coming back to this when we discuss this idea—what prevents this being done already? I realise that this may be a comparatively trivial example, but if I wanted to organise a community today to oppose a local development, could I not do so with an existing lawful basis for data processing? It is still not clear in what way these amendments would improve my ability to do so, or would reduce my administrative burden or the risks of data misuse.

I look forward to hearing more about this from the Minister today and, ideally, as the noble Baroness, Lady Kidron, said, in a briefing on the Government’s plan to drive this forward. However, I remain concerned that we do not necessarily need to drive forward this mechanism by passing new legislation. I look forward to the Minister’s comments.

Amendment 42 would require the Information Commissioner to draw up a code of practice setting out how data communities must operate and how data controllers and processors should engage with these communities. Amendment 43 would create a register of data communities and additional responsibilities for the data community controller. I appreciate the intent of the noble Baroness, Lady Kidron, in trying to ensure data security and transparency in the operation of data communities. If we on these Benches supported the idea of their creation in this Bill, we would surely have to implement mechanisms of the type proposed in these amendments. However, this observation confirms us in our view that the administration required to operate these communities is starting to look rather burdensome. We should be looking to encourage the use of data to generate economic growth and to make people’s lives easier. I am concerned that the regulation of data communities, were it to proceed as envisaged by these amendments, might risk doing just the opposite. That said, I will listen with interest to the response of noble Lords and the Minister.

[Lord in Waiting/Government Whip (Lord Leong) (Lab)]

My Lords, I rise to speak to Amendments 2, 3, 4, 25, 42 and 43. I thank the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, for these amendments on data communities, which were previously tabled in Committee, and for the new clauses linking these with the Bill’s clauses on smart data.

As my noble friend Lady Jones noted in Committee, the Government support giving individuals greater agency over their data. The Government are strongly supportive of a robust regime of data subject rights and believe strongly in the opportunity presented by data for innovation and economic growth. UK GDPR does not prevent data subjects authorising third parties to exercise certain rights on their behalf. Stakeholders have, however, said that there may be barriers to this in practice.

I reassure noble Lords that the Government are actively exploring how we can support data intermediaries while maintaining the highest data protection standards. It is our intention to publish a call for evidence in the coming weeks on the activities of data intermediaries and the exercise of data subject rights by third parties. This will enable us to ensure that the policy settings on this topic are right.

In the context of smart data specifically, Part 1 of the Bill does not limit who the regulations may allow customers to authorise. Bearing in mind the IT and security-related requirements inherent in smart data schemes, provisions on who a customer may authorise are best determined in the context of a specific scheme, when the regulations are made following appropriate consultation. I hope to provide some additional reassurance that exercise of the smart data powers is subject to data protection legislation and does not displace data rights under that legislation.

There will be appropriate consultation, including with the Information Commissioner’s Office, before smart data schemes are introduced. This year, the Department for Business and Trade will be publishing a strategy on future uses of these powers.

While the smart data schemes and digital verification services are initial examples of government action to facilitate data portability and innovative uses of data, my noble friend Lady Jones previously offered a meeting with officials and the noble Baroness, Lady Kidron, to discuss these proposals, which I know my officials have arranged for next week—as the noble Baroness indicated earlier. I hope she is therefore content to withdraw her amendment.

[Baroness Kidron (CB)]

Before the Minister sits down, may I ask whether there is a definition of “customer” and whether that includes a user in the broader sense, or means worker or any citizen? Is it a customer relationship?

[Lord Leong (Lab)]

My understanding is that “customer” reflects an individual, but I am sure that the Minister will give a better explanation at the meeting with officials next week.

[Lord Clement-Jones (LD)]

Again before the Minister sits down—I am sure he will not be able to sit down for long—would he open that invitation to a slightly wider group?

[Lord Leong (Lab)]

I thank the noble Lord for that request, and I am sure my officials would be willing to do that.

[Baroness Kidron (CB)]

My Lords, I do not intend to detain the House on this for very long, but I want to say that holding meetings after the discussion on Report is not adequate. “Certain rights” and “customer” are exactly the sort of terms that I am trying to address here. To the noble Viscount—and my noble friend—Lord Camrose, I say that it is not adequate, and we have an academic history going back a long way. I hope that the meeting next week is fruitful and that the Government’s enthusiasm for this benefits workers, citizens and customers. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Clause 3: Customer data: supplementary

Amendments 3 and 4 not moved.

Clause 13: Financial assistance

Amendment 5 not moved.

Clause 28: DVS trust framework

Amendment 6

Moved by

[Lord Lucas]

6: Clause 28, page 30, line 28, at end insert—
“(2A) In preparing the DVS trust framework the Secretary of State must assess whether the public authorities listed in subsection (2B) reliably ascertain the personal data attributes that they collect, record and share.(2B) The public authorities are—(a) HM Passport Office;(b) Driver and Vehicle Licensing Agency;(c) General Register Office;(d) National Records Office;(e) General Register Office for Northern Ireland;(f) NHS Personal Demographics Service;(g) NHS Scotland;(h) NI Health Service Executive;(i) Home Office Online immigration status (eVisa);(j) Disclosure and Barring Service;(k) Disclosure Scotland;(l) Nidirect (AccessNI);(m) HM Revenue and Customs;(n) Welsh Revenue Authority;(o) Revenue Scotland.”Member's explanatory statement
This amendment is to ensure that there is oversight that the public authorities that provide core identity information via the information gateway provide accurate and reliable information.

[Lord Lucas (Con)]

My Lords, in moving Amendment 6 in my name I will also to speak to Amendment 8. This section of the Bill deals with digital verification services, and the root word there is verify/veritas—truth. Digital verification input must be truthful for the digital system to work. It is fundamental.

One can find all sorts of workarounds for old analogue systems. They are very flexible. With digital, one has to be precise. Noble Lords may remember the case in November of baby Lilah from Sutton-in-Ashfield, who was registered at birth as male by accident, as she was clearly female. The family corrected this on the birth register by means of a marginal note. There is no provision in law to correct an error on a birth certificate other than a marginal note. That works in analogue—it is there on the certificate—but in digital these are separate fields. In the digital systems, her sex is recorded as male.

16:45

There will be another field called “marginal note”, which nobody will look at much and which you cannot rely on the AI systems to look at either. So it will become really difficult to handle systems where data is inexact and wrong. This particular area is one I hope the Government might find the space to clear up in the course of the rest of the Bill’s passage. We really need to be able to correct errors when they are there.

Amendment 6 is about verifying that the sources of information for verification are good. Amendment 8 is about giving institutions a duty to be accurate. Those things matter if you are dealing with a verification system that will become, for instance, a source of digital identity in pubs and clubs—most obviously for age, but also for sex in terms of using particular facilities. The systems will have drawn their data from the sort of institutions mentioned in Amendment 6 and will regard that data as accurate. It will be extremely difficult for someone in a club to argue with something that appears on a digital verification system. It will be important that that information is accurate.

The Passport Office has allowed people to replace their sex with self-identified gender on passports since the 1960s and, until recently, kept no central records of this. I declare an interest in that my late wife altered her date of birth on her passport in the days when you could do such things, but sex is rather more serious. Doing that officially—to have a passport that shows your sex as something that it is not and to then use that as the basis for a digital verification system—starts to corrupt the whole system. The system is becoming unreliable; it is really important that what gets in there is correct. If you are dealing with use of facilities in clubs and relying on the digital verification system to apply quite reasonably, say, a rule that you have to be female to use the female changing rooms, which are communal, then you need to have a system that is accurate. That means we must take care, as we go into this AI world, to make sure that the data sources we feed in are accurate.

We also have an aspect of this in nursing and domiciliary care, where many people will want intimate care to be provided by people of the same sex. That has always seemed a reasonable request and one that offence should not be taken at. It is quite properly part of a lot of people’s upbringing that they are careful about the way they are exposed in front of the opposite sex. This can apply to males and females. The base of this has to be that the data held on the sex of the workers involved is accurate. There have been several cases recently within the NHS where that has clearly not been the case. We are looking at a government transformation and moving to an AI world. That AI world will be intolerable if it is based on data that is not truthful.

Anyway, what are these organisations doing, knowingly recording untruthful data? How do they manage that under the GDPR? What rights do they have to hold data that they know to be wrong? It seems astonishing to me that this has grown up. In any event, given where we are going and given where this Government are taking us, although I share other noble Lords’ concerns and fears, I am none the less behind the wagon, pushing. There could be some interesting outcomes to AI and what it might offer but we have to get it right. If we allow it to become corrupted, it will not work; it will spread all sorts of inefficiencies and wrongs without us being able to correct it. To get it right at the beginning is important. Tech-enabled should mean truth-enabled. I beg to move.

[Lord Arbuthnot of Edrom (Con)]

My Lords, I support my noble friend. I have a confession to make. Before this Bill came up, I foolishly thought that sex and gender were the same thing. I have discovered that they are not. Gender is not a characteristic defined in UK law. I believe that you are born with a biological sex, as being male or female, and that some people will choose, or need, to have a gender reassignment or to identify as a different gender. I thank the charity Sex Matters, which works to provide clarity on this issue of sex in law.

As my noble friend Lord Lucas said, the digital verification system currently operates on the basis of chosen gender, not of sex at birth. You can change your records on request without even having a gender recognition certificate. That means that, over the last five years, at least 3,000 people have changed their passports to show the wrong sex. Over the last six years, at least 15,000 people have changed their driving licences. The NHS has no records of how many people now have different sexes recorded from those they had at birth. It is thought that perhaps 100,000 people have one sex indicated in one record and a different sex in another. We cannot go on like that.

The consequences of this are really concerning. It means people with mismatched identities risk being flagged up as a synthetic identity risk. It means authorities with statutory safeguarding responsibilities will not be able to assess the risk that they are trying to deal with. It means that illnesses may be misdiagnosed and treatments misprescribed if the wrong sex is stated in someone’s medical records. The police will be unable to identify people if they are looking in the wrong records. Disclosure and Barring Service checks may fail to match individuals with the wrong sex. I hope that the Government will look again at correcting this. It is a really important issue.

[Lord Clement-Jones (LD)]

My Lords, I will speak to Amendments 7 and 9. Amendment 7 would require the Secretary of State to lay the DVS trust framework before Parliament. Given the volume of sensitive data that digital ID providers will be handling, it is crucial for Parliament to oversee the framework rules governing digital verification service providers.

The amendment is essentially one that was tabled in Committee by the noble Viscount, Lord Camrose. I thought that he expressed this well in Committee, emphasising that such a fundamental framework demands parliamentary approval for transparency and accountability, regardless of the document’s complexity. This is an important framework with implications for data privacy and security, and should not be left solely to the discretion of the Secretary of State.

The DPRRC in its ninth report and the Constitution Committee in its third report of the Session also believed the DVS trust framework should be subject to parliamentary scrutiny; the former because it has legislative effect, and it recommended using the affirmative procedure, which would require Parliament to actively approve the framework, as the Secretary of State has significant power without adequate parliamentary involvement. The latter committee, the Constitution Committee, said:

“We reiterate our statement from our report on the Data Protection and Digital Information Bill that ‘[d]ata protection is a matter of great importance in maintaining a relationship of trust between the state and the individual. Access to personal data is beneficial to the provision of services by the state and assists in protecting national security. However, the processing of personal data affects individual rights, including the right to respect for private life and the right to freedom of expression. It is important that the power to process personal data does not become so broad as to unduly limit those rights’”.


Those views are entirely consistent with the committee’s earlier stance on a similar provision in the previous Data Protection and Digital Information Bill. That was why it was so splendid that the noble Viscount tabled that amendment in Committee. It was like a Damascene conversion.

The noble Baroness, Lady Jones, argued in Committee and in correspondence that the trust framework is a highly technical document that Parliament might find difficult to understand. That is a bit of a red rag to a bull. However, this argument fails to address the core concerns about democratic oversight. The framework aims to establish a trusted digital identity marketplace by setting requirements for providers to gain certification as trusted providers.

I am extremely grateful to the Minister, the Bill team and the department for allowing officials to give the noble Viscount, Lord Camrose, and me a tutorial on the trust framework. It depends heavily on being voluntary in nature, with the UK Accreditation Service essentially overseeing the certifiers, such as BSI, Kantara and the Age Check Certification Scheme, certifying the providers, with the installation of ISO 17065 as the governing standard.

Compliance is assured through the certification process, where services are assessed against the framework rules by independent conformity assessment bodies accredited by the UK Accreditation Service, and the trust framework establishes rules and standards for digital identity verification but does not directly contain specific provision for regulatory oversight or for redress mechanisms such as a specific ombudsman service, industry-led dispute resolution or set contract terms for consumer redress or enforcement powers. The Government say, however, that they intend to monitor the types of complaints received. Ultimately, the scope of the framework is limited to the rules providers must follow in order to remain certificated and it does not address governance matters.

Periodic certification alone is not enough to ensure ongoing compliance and highlights the lack of an independent mechanism to hold the Secretary of State accountable. The noble Baroness, Lady Jones, stated in Committee that the Government preferred a light-touch approach to regulating digital verification services. She believed that excessive parliamentary scrutiny would hinder innovation and flexibility in this rapidly evolving sector.

The Government have consistently emphasised that they have no plans to introduce mandatory digital IDs or ID cards The focus is on creating a secure and trusted system that gives citizens more choice and control over their data. The attributes trust framework is a crucial step towards achieving the goal of a secure, trusted and innovative digital identity market—all the more reason to get the process for approval right.

These services will inevitably be high-profile. Digital ID is a sensitive area which potentially also involves age verification. These services could have a major impact on data privacy and security. Public debate on such a critical issue is crucial to build trust and confidence in these systems. Laying the DVS trust framework before Parliament would allow for a wider range of voices and perspectives to be heard, ensuring a more robust and democratic approval process.

17:00

The lack in the framework of specific redress mechanisms and a dedicated regulator further underscores the need for parliamentary oversight to protect individuals’ rights and interests in this rapidly evolving digital landscape. In his letters to the chairs of those two committees, the Minister, the noble Lord, Lord Vallance, made similar arguments to those made by the noble Baroness, Lady Jones. By the way, we wish the noble Baroness well and appreciate the baton being picked up for this Bill by the noble Lord.

I hope that I have made the case and that the final paragraph the Minister put in his letter does not counteract what I have to say about the benefits of parliamentary approval. The Minister writes that he hopes his letter will

“provide some helpful context … the Government remains of the view that it does not require parliamentary scrutiny, because its primary role is in the conformity assessment space which sits outside of the Bill”.

If anything, the letter makes the arguments of the Constitution Committee and the DPRRC stronger.

I turn to Amendment 9. The rapid growth of digital services and the potential for misuse emphasise the need for a review of a digital identity offence, as proposed in this amendment. As I pointed out to both this Government and the last one, there is currently no specific crime of digital identity theft, despite various laws that address related offences such as fraud, using a false identity and unauthorised computer access. This gap in legislation leaves the public vulnerable to the harms of digital identity theft. Creating a new specific offence of digital identity theft would better protect those who use digital identity online, ensuring that they had the same protection as they do in the physical world. Existing laws do not adequately cover the nuances of digital identity theft, and a clear criminal offence would serve as a deterrent to malicious actors. As I argued in Committee, the Government should follow the recommendations of the committee chaired by the noble Baroness, Lady Morgan, which produced the 2022 report Fighting Fraud: Breaking the Chain, which concluded that a specific criminal offence for identity theft was necessary, or that identity theft should be considered a serious aggravating factor in cases of fraud.

In Committee, the noble Baroness, Lady Jones, said that existing legislation, such as the Fraud Act 2006, the Computer Misuse Act 1990 and the Data Protection Act 2018, already addressed the behaviour targeted by the amendment. She said that new offences were unnecessary and could lead to overcriminalisation. Defining every instance of verification as an identity document under the Identity Documents Act 2010 could create

“an unclear … and duplicative process for … prosecution”—[Official Report, 3/12/24; col. GC 382.]

was another of her arguments. However, while existing legislation might touch on aspects of digital identity theft, the Fraud Act 2006 does not explicitly address the unique challenges posed by digital identity theft. The lack of a specific offence creates ambiguity and could allow perpetrators to exploit loopholes. Creating a specific offence would provide clarity and demonstrate a commitment to tackling this growing offence. By conducting a thorough review, the Government could ensure that the legal framework effectively combated digital identity theft while promoting a secure and trustworthy digital environment for individuals and businesses.

As for the approach of these Benches to the amendments tabled by the noble Lords, Lord Lucas and Lord Arbuthnot, I have some sympathy for the desire for accuracy in the records covered by digital identity services, and I hope the Government will be able to give assurances about that. However, we do not wish to turn this into a battle and a culture war opportunity, so we will not be supporting the noble Lords if they push them to a vote.

[The Earl of Erroll (CB)]

My Lords, I very much support the amendments from the noble Lords, Lord Lucas and Lord Arbuthnot, particularly Amendment 6, about accuracy. It has become apparent—and Committee stage was interesting—that there is a challenge with having gender and sex as interchangeable. The problem becomes physical, because you cannot avoid the fact that you will react differently medically to certain things according to the sex you were born and to your DNA.

That can be very dangerous in two cases. The first case is where drugs or cures are being administered by someone who thinks they are treating a patient of one sex but they are actually a different sex. That could kill someone, quite happily. The second case is if you are doing medical research and relying on something, but then find that half the research is invalid because a person is not actually that sex but have decided to choose another gender. Therefore, all the research on that person could be invalid. That could lead to cures being missed, other things being diagnosed as being all right, and a lot of dangers.

As a society, we have decided that it will be all right for people to change gender—let us say that, as I think it is probably the easiest way to describe it. I do not see any problem with that, but we need critical things to be kept on records that are clearly separate. Maybe we can make decisions in Parliament, or wherever, about what you are allowed to declare on identity documents such as a passport. We need to have two things: one is sex, which is immutable, and therefore can help with all the other things behind the scenes, including research and treatments; the other is gender, which can be what you wish to declare, and society accepts that you can declare yourself as being of another gender. I cannot see any way round that. I have had discussions with people about this, and as one who would have said that this is quite wrong and unnecessary, I was convinced by the end of those discussions that it was right. Keeping the two separate in our minds would solve a lot of problems. These two amendments are vital for that.

I agree in many ways with the points from the noble Lord, Lord Clement-Jones. Just allowing some of these changes to be made by the stroke of a pen—a bit like someone is doing across the Atlantic—without coming to Parliament, is perhaps unwise sometimes. The combined wisdom of Parliament, looking at things from a different point of view, and possibly with a more societal point of view than the people who are trying to make systems work on a governmental basis, can be sensible and would avoid other mistakes being made. I certainly support his amendments, but I disagree entirely with his last statement where he did not support the noble Lords, Lord Lucas and Lord Arbuthnot.

[Viscount Camrose (Con)]

I thank my noble friend Lord Lucas for introducing this group and for bringing these important and sometimes very difficult matters to the attention of the House. I will address the amendments slightly out of order, if I may.

For digital verification services to work, the information they have access to and use to verify documents must be accurate; this is, needless to say, critical to the success of the entire scheme. Therefore, it is highly sensible for Amendment 8 to require public authorities, when they disclose information via the information gateway, to ensure that it is accurate and reliable and that they can prove it. By the same measure, Amendment 6, which requires the Secretary of State to assess whether the public authorities listed are collecting accurate information, is equally sensible. These amendments as a pair will ensure the reliability of DVS services and encourage the industry to flourish.

I would like to consider the nature of accurate information, especially regarding an individual’s biological sex. It is possible for an individual to change their recorded sex on their driving licence or passport, for example, without going through the process of obtaining a gender recognition certificate. Indeed, a person can change the sex on their birth certificate if they obtain a GRC, but many would argue that changing some words on a document does not change the reality of a person’s genome, physical presentation and, in some cases, medical needs, meaning that the information recorded does not accurately relate to their sex. I urge the Minister to consider how best to navigate this situation, and to acknowledge that it is crucially important, as we have heard so persuasively from the noble Earl, Lord Errol, and my noble friends Lord Arbuthnot and Lord Lucas, that a person’s sex is recorded accurately to facilitate a fully functioning DVS system.

The DVS trust framework has the potential to rapidly transform the way identities and information are verified. It should standardise digital verification services, ensure reliability and build trust in the concept of a digital verification service. It could seriously improve existing, cumbersome methods of verifying information, saving companies, employers, employees, landlords and tenants time and money. Personally, I have high hopes of its potential to revolutionise the practices of recruitment. I certainly do not know many people who would say no to less admin. If noble Lords are minded to test the opinion of the House, we will certainly support them with respect to Amendments 6 and 8.

With the greatest respect to the noble Lord, Lord Clement-Jones, I think it is a mistake to regard this as part of some culture war struggle. As I understand it, this is about accuracy of data and the importance, for medical and other reasons, of maintaining accurate data.

All the benefits of DVS cannot be to the detriment of data privacy and data minimisation. Parliament is well-practised at balancing multiple competing concepts and doing so with due regard to public opinion. Therefore, Amendment 7 is indeed a sensible idea.

Finally, Amendment 9 would require the Secretary of State to review whether an offence of false use of identity documents created or verified by a DVS provider is needed. This is certainly worth consideration. I have no doubt that the Secretary of State will require DVS providers to take care that their services are not being used with criminal intent, and I am quite sure that DVS service providers do not want to facilitate crimes. However, the history of technology is surely one of high-minded purposes corrupted by cynical practices. Therefore, it seems prudent for the Secretary of State to conduct a review into whether creating this offence is necessary and, if it is, the best way that it can be laid out in law. I look forward to hearing the Minister’s comments on this and other matters.

[Lord Vallance of Balham (Lab)]

I thank the noble Lords, Lord Clement-Jones, Lord Lucas and Lord Arbuthnot, for their amendments and interest in the important area of digital verification services. I thank the noble Viscount, Lord Camrose, for his support for this being such an important thing to make life easier for people.

I will go in reverse order and start with Amendment 9. I thank the noble Lord, Lord Clement-Jones, for reconsidering his stance since Committee on the outright creation of these offences. Amendment 9 would create an obligation for the Secretary of State to review the need for digital identity theft offences. We believe this would be unnecessary, as existing legislation—for example, the Fraud Act 2006, the Computer Misuse Act 1990 and the Data Protection Act 2018—already addresses the behaviour targeted by this amendment.

However, we note the concerns raised and confirm that the Government are taking steps to tackle the issue. First, the Action Fraud service, which allows individuals to report fraud enabled by identity theft, is being upgraded with improved reporting tools, increased intelligence flows to police forces and better support services for victims. Secondly, the Home Office is reviewing the training offered to police officers who have to respond to fraud incidents, and identifying the improvements needed.

[Lord Clement-Jones (LD)]

I am sorry to interrupt the Minister. He is equating digital identity theft to fraud, and that is not always the case. Is that the advice that he has received?

[Lord Vallance of Balham (Lab)]

The advice is that digital identity theft would be captured by those Acts. Therefore, there is no need for a specific offence. However, as I said, the Government are taking steps to tackle this and will support the Action Fraud service as a way to deal with it, even though I agree that not everything falls as fraud under that classification.

17:15

Amendment 7 would require the DVS trust framework to be laid before Parliament. The trust framework is a very technical document that sets the rules that digital verification services can be certified against and requires the Secretary of State to consult when preparing, publishing or revising the trust framework following an annual review. These rules, now in their fourth non-statutory version on GOV.UK, draw on existing technical requirements, standards, best practice, guidance and legislation. Compliance with the rules is ensured by third-party independent auditors—the conformity assessment bodies—which certify digital verification services when they are compliant with the trust framework. Similar certification schemes exist across numerous industries for providing quality assurance.

Although the Secretary of State has powers in the Bill relating to the trust framework, the primary role of the framework in practice is to provide baseline rules against which digital verification services can be assessed by the conformity assessment bodies. That process takes place outside the Bill and relies on tried and trusted accreditation processes, overseen by the United Kingdom Accreditation Service. For these reasons, and for the reason that this is indeed a process that exists and works, the Government remain of the view that the trust framework does not require parliamentary scrutiny.

The rules in the framework are likely to act as a robust baseline for the independent conformity assessment process. Schemes such as this exist in many sectors, as I have said, and draw heavily on existing standards. The Secretary of State will have to undertake an annual review and consult the Information Commissioner and other appropriate stakeholders as part of that process. The trust framework’s development will be informed by industry and regulatory knowledge as the market evolves.

[Lord Clement-Jones (LD)]

I am sorry to interrupt the Minister again, but could he therefore confirm that, by reiterating his previous view that the Secretary of State should not have to bring the framework to Parliament, he disagrees with both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, both of which made the same point on this occasion and on the previous Bill—that Parliament should look at the trust framework?

[Lord Vallance of Balham (Lab)]

For the reasons that I have given, I think that the trust framework is a technical document and one best dealt with in this technical form. It is built on other assurance processes, with the United Kingdom Accreditation Service overseeing the conformity accreditation bodies that will test the digital verification services. In this case, our view is that it does not need to come under parliamentary scrutiny.

On Amendments 6 and 8 from the noble Lord, Lord Lucas, I am absolutely behind the notion that the validity of the data is critical. We have to get this right. Of course, the Bill itself takes the data from other sources, and those sources have authority to get the information correct, but it is important, for a digital service in particular, that this is dealt with very carefully and that we have good assurance processes.

On the specific point about gender identity, the Bill does not create or prescribe new ways in which to determine that, but work is ongoing to try to ensure that there is consistency and accuracy. The Central Digital and Data Office has started to progress work on developing data standards and key entities and their attributes to ensure that the way data is organised, stored and shared is consistent between public authorities. Work has also been commenced via the domain expert group on the person entity, which has representations from the Home Office, HMRC, the Office for National Statistics—importantly—NHS England, the Department for Education, the Ministry of Justice, the Local Government Association and the Police Digital Service. The group has been established as a pilot under the Data Standards Authority to help to ensure consistency across organisations, and specific pieces of work are going on relating to gender in that area.

The measures in Part 2 are intended to help secure the reliability of the process through which citizens can verify their identity digitally. They do not intervene in how government departments record and store identity data. In clarifying this important distinction, and with reference to the further information I will set out, I cannot support the amendments.

[Lord Arbuthnot of Edrom (Con)]

I would be grateful if the Minister could confirm whether he accepts that, on some occasions, passports and drivers’ licences inaccurately reflect the sex of their holders.

[Lord Vallance of Balham (Lab)]

I can be absolutely clear that we must have a single version of the truth on this. There needs to be a way to verify it consistently and there need to be rules. That is why the ongoing work is so important. I know from my background in scientific research that, to know what you are dealing with, data is the most important thing to get. Making sure that we have a system to get this clear will be part of what we are doing.

Amendment 6 would require the Secretary of State to assess which public authorities can reliably verify related facts about a person in the preparation of the trust framework. This exercise is out of scope of the trust framework, as the Good Practice Guide 45—a standard signposted in the trust framework—already provides guidance for assessing the reliability of authoritative information across a wide range of use cases covered by the trust framework. Furthermore, the public authorities mentioned are already subject to data protection legislation which requires personal data processed to be accurate and, where relevant, kept up to date.

Amendment 8 would require any information shared by public authorities to be clearly defined, accompanied by metadata and accurate. The Government already support and prioritise the accuracy of the data they store, and I indicated the ongoing work to make sure that this continues to be looked at and improved. This amendment could duplicate or potentially conflict with existing protections under data protection legislation and/or other legal obligations. I reassure noble Lords that the Government believe that ensuring the data they process is accurate is essential to deliver services that meet citizens’ needs and ensure accurate evaluation and research. The Central Digital and Data Office has already started work on developing data standards on key entities and their attributes to ensure that the way data is organised, stored and shared is consistent.

It is our belief that these matters are more appropriately considered together holistically, rather than by a piecemeal approach through diverse legislation such as this data Bill. As such, I would be grateful if noble Lords would consider withdrawing their amendments.

[Lord Lucas (Con)]

My Lords, I am very grateful to all noble Lords who have spoken on this. I actually rather liked the amendments of the noble Lord, Lord Clement-Jones—if I am allowed to reach across to him—but I think he is wrong to describe Amendments 6 and 8 as “culture war”. They are very much about AI and the fundamentals of digital. Self-ID is an attractive thought; I would very much like to self-identify as a life Peer at the moment.

[Noble Lords]

Oh!

[Lord Lucas (Con)]

However, the truth should come before personal feelings, particularly when looking at data and the fundamentals of society. I hope that the noble Lord will take parliamentary opportunities to bring the framework in front of Parliament when it appears. I agree with him that Parliament should take an interest in and look at this, and I hope we will be able to do that through a short debate at some stage—or that he will be able to, because I suspect that I shall not be here to do so. It is important that, where such fundamental rights and the need for understanding are involved, there is a high degree of openness. However expert the consideration the Government may give this through the mechanisms the Minister has described, I do not think they go far enough.

So far as my own amendments are concerned, I appreciate very much what the Minister has said. We are clearly coming from the same place, but we should not let the opportunity of this Bill drift. We should put down the marker here that this is an absolutely key part of getting data and government right. I therefore beg leave to test the opinion of the House.

17:25

Division 1

Ayes: 205

Noes: 159

Amendment 7

Moved by

[Lord Clement-Jones]

7: Clause 28, page 31, line 22, at end insert—
“(11) The Secretary of State must lay the DVS trust framework before Parliament.”Member's explanatory statement
This amendment will ensure Parliamentary oversight of the rules with which digital verification service providers must comply.

[Lord Clement-Jones (LD)]

My Lords, I support the conclusions of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, and I beg leave to seek the opinion of the House.

17:40

Division 2

Ayes: 87

Noes: 157

17:50

Clause 45: Power of public authority to disclose information to registered person

Amendment 8

Moved by

[Lord Lucas]

8: Clause 45, page 42, line 23, at end insert—
“(5A) A public authority must not disclose information about an individual under this section unless the information—(a) is clearly defined and accompanied by metadata, and(b) the public authority is able to attest that it—(i) was accurate at the time it was recorded, and(ii) has not been changed or tampered, or(c) the public authority is able to attest that it—(i) has been corrected through a lawfully made correction, and(ii) was accurate at the time of the correction.”Member’s explanatory statement
This amendment is to ensure that public authorities that disclose information via the information gateway provide accurate and reliable information and that if the information has been corrected it is the correct information that is provided.

Amendment 8 agreed.

Amendment 9 not moved.

Clause 56: National Underground Asset Register: England and Wales

Amendment 10

Moved by

[Lord Vallance of Balham]

10: Clause 56, page 52, line 13, leave out “undertaker’s” and insert “contractor’s”
Member’s explanatory statement
New section 106B(6) of the New Roads and Street Works Act 1991 (defence where certain people have taken reasonable care) refers to “the undertaker’s employees” twice. This amendment corrects that by replacing one of those references with a reference to “the contractor’s employees”.

[Lord Vallance of Balham (Lab)]

My Lords, Amendments 10 and 12 seek to amend Clauses 56 and 58, which form part of the national underground asset register provisions. These two minor, technical amendments address a duplicate reference to “the undertaker’s employees” and replace it with the correct reference to “the contractor’s employees”. I reassure noble Lords that the amendments do not have a material policy effect and are intended to correct the drafting. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for these two technical amendments. I take this opportunity to thank him also for responding to correspondence about LinesearchbeforeUdig and its wish to meet government and work with existing services to deliver what it describes as the safe digging elements of the NUAR. The Minister has confirmed that the heavy lifting on this—not heavy digging—will be carried out by the noble Baroness, Lady Jones, on her return, which I am sure she will look forward to. As I understand it, officials will meet LinesearchbeforeUdig this week, and they will look at the survey carried out by the service. We have made some process since Committee, and I am grateful to the Minister for that.

[Viscount Camrose (Con)]

My Lords, given that these are technical amendments, correcting wording errors, I have little to add to the remarks already made. We have no concerns about these amendments and will not seek to oppose the Government in making these changes.

Amendment 10 agreed.

Amendment 11

Moved by

[Viscount Camrose (Con)]

11: Clause 56, page 53, line 17, at end insert—
“(2A) The Secretary of State must provide guidance to relevant stakeholders on cyber-security measures before they may receive information from NUAR.”Member's explanatory statement
This amendment will require the Secretary of State to provide guidance to relevant stakeholders on security measures before they receive information from NUAR.

[Viscount Camrose (Con)]

My Lords, I will speak to Amendments 11 and 13 in my name and that of my noble friend Lord Markham. The national underground asset register contains the details of all underground assets and apparatus in England, Wales and Northern Ireland, or at any rate it will do as it goes forward. This includes water pipes, electricity cables, internet cables and fibres—details of the critical infrastructure necessary to sustain the UK as we know it.

Needless to say, there are many hostile actors who, if they got their hands on this information, would or could use it to commit appalling acts of terror. I am mindful of and grateful for the Government’s assurances given in Committee that it is and will be subject to rigorous security measures. However, the weakest link in cyber defence is often third-party suppliers and other partners who do not recognise the same level of risk. We should take every possible measure to ensure that the vital data in NUAR is kept safe and shared only with stakeholders who have the necessary security provisions in place.

For this reason, I have tabled Amendment 11, which would require the Secretary of State to provide guidance to relevant stakeholders on the cybersecurity measures which should be in place before they receive information from NUAR. I do not believe this would place a great burden on government departments, as appropriate cybersecurity standards already exist. The key is to ensure that they are duly observed.

I cannot overstate the importance of keeping this information secure, but I doubt noble Lords need much convincing on that score. Given how frighteningly high the stakes are, I strongly urge the most proactive possible approach to cybersecurity, advising stakeholders and taking every possible step to keep us all safe.

Amendment 13, also tabled in my name, requires the Registrar-General to make provisions to ensure the cybersecurity of the newly digitised registers of births, still-births, and deaths. There are a great many benefits in moving from a paper-based register of births and deaths to a digitised version. People no longer have to make the trip to sign the register in person, saving time and simplifying the necessary admin at very busy or very difficult points in people’s lives. It also reduces the number of physical documents that need to be maintained and kept secure. However, in digitising vast quantities of personal, valuable information, we are making a larger attack surface which will appeal to malign actors looking to steal personal data.

I know we discussed this matter in Committee, when the noble Baroness the Minister made the point that this legislation is more about a digitisation drive, in that all records will now be digital rather than paper and digital. While I appreciate her summary, I am not sure it addresses my concerns about the security risks of shifting to a purely digital model. We present a large and tempting attack surface, and the absence of paper back-ups increases the value of digital information even more, as it is the only register. Of course, there are already security measures in place for the digital copies of these registers. I have no doubt we have back-ups and a range of other fallback opportunities. But the same argument applies.

Proactive cybersecurity provisions are required, taking into account the added value of these registers and the ever-evolving threat we face from cybercriminals. I will listen with great interest to the thoughts of other noble Lords and the Minister.

[Lord Leong (Lab)]

My Lords, I thank the noble Viscount, Lord Camrose, and the noble Lord, Lord Markham, for these amendments. Clause 56 forms part of NUAR provisions. The security of NUAR remains of the utmost importance. Because of this, the Government have closely involved a wide range of security stakeholders in the development of NUAR, including the National Protective Security Authority and security teams from the asset owners themselves. Providing clear acceptable user and usage policies for any digital service is important. As such, we intend to establish clear guidance on the appropriate usage of NUAR, including what conditions end users must fulfil before gaining access to the service. This may include cybersecurity arrangements, as well as personal vetting. However, we do not feel it appropriate to include this in the Bill.

Care must be taken when disclosing platform-specific cybersecurity information, as this could provide bad actors with greater information to enable them to counter these measures, ultimately making NUAR less secure. Furthermore, regulations made in relation to access to information from NUAR would be subject to the affirmative procedure. As such, there will be future opportunities for relevant committees to consider in full these access arrangements, including, on an individual basis, any security impacts. I therefore reassure noble Lords that these measures will ensure that access to NUAR data is subject to appropriate safeguards.

18:00

Turning to Amendment 13, also tabled by the noble Viscount, the registration online system has been in place for births, stillbirths and deaths since 2009. The system is protected to Home Office security standards and employs a range of anti-cyberattack best practices through the deployment of advanced, fully managed firewalls and intrusion detection systems. The data is replicated to a secure cloud platform every 30 minutes and robust measures are in place to protect it. Articles 25 and 32 of the UK general data protection regulation impose duties on controllers of personal data to implement appropriate technical and organisational measures, including security measures. Therefore, legislation is already in place to ensure the security of the electronic registers. The robust security measures the Home Office has in place ensure that we are complying with these statutory obligations.

With those explanations, I hope that the noble Viscount will be content to withdraw Amendment 11.

[Viscount Camrose (Con)]

I thank the Minister for his considered reply. It is clear that the Government and the department are taking the issue of security with all due seriousness. However, I remain concerned, particularly about the move to NUAR as a highly tempting attack service for malign actors. In light of this, I am minded to test the opinion of the House.

18:02

Division 3

Ayes: 186

Noes: 162

18:13

Clause 58: National Underground Asset Register: Northern Ireland

Amendment 12

Moved by

[Lord Vallance of Balham]

12: Clause 58, page 62, line 34, leave out “undertaker’s” and insert “contractor’s”
Member’s explanatory statement
New Article 45B(6) of the Street Works (Northern Ireland) Order 1995 (defence where certain people have taken reasonable care) refers to “the undertaker’s employees” twice. This amendment corrects that by replacing one of those references with a reference to “the contractor’s employees”.

Amendment 12 agreed.

Clause 61: Form in which registers of births and deaths are to be kept

Amendment 13 not moved.

Clause 67: Meaning of research and statistical purposes

Amendment 14

Moved by

[Viscount Colville of Culross]

14: Clause 67, page 75, line 10, after “scientific” insert “and that is conducted in the public interest”
Member’s explanatory statement
This amendment ensures that to qualify for the scientific research exception for data reuse, that research must be in the public interest. This requirement already exists for medical research, but this amendment would apply it to all scientific research wishing to take advantage of the exception.

[Viscount Colville of Culross (CB)]

My Lords, I thank my noble friend Lady Kidron and the noble Viscount, Lord Camrose, for adding their signatures to my Amendment 14. I withdrew this amendment in Committee, but I am now asking the Minister to consider once again the definition of “scientific research” in the Bill. If he cannot satisfy me in his speech this evening, I will seek the opinion of the House.

I have been worried about the safeguards for defining scientific research since the Bill was published. This amendment will require that the research should be in “the public interest”, which I am sure most noble Lords will agree is a laudable aim and an important safeguard. This amendment has been looked at in the context of the Government’s recent announcements on turning this country into an AI superpower. I am very much a supporter of this endeavour, but across the country there are many people who are worried about the need to set up safeguards for their data. They fear data safety is threatened by this explosion of AI and its inexorable development by the big tech companies. This amendment will go some way to building public trust in the AI revolution.

The vision of Donald Trump surrounded at his inauguration yesterday by tech billionaires, most of whom have until recently been Democrats, puts the fear of God into me. I fear their companies are coming for our data. We have some of the best data in the world, and it needs to be safeguarded. The AI companies are spending billions of dollars developing their foundation models, and they are beholden to their shareholders to minimise the cost of developing these models.

Clause 67 gives a huge fillip to the scientific research community. It exempts research which falls within the definition of scientific research as laid out in the Bill from having to gain new consent from data subjects to reuse millions of points of data.

It costs time and money for the tech companies to get renewed consent from data holders before reusing their data. This is an issue we will discuss further when we debate amendments on scraping data from creatives without copyright licensing. It is clear from our debates in Committee that many noble Lords fear that AI companies will do what they can to avoid either getting consent or licensing data for use in scraping data. Defining their research as scientific will allow them to escape these constraints. I could not be a greater supporter of the wonderful scientific research that is carried out in this country, but I want the Bill to ensure that it really is scientific research and not AI development camouflaged as scientific research.

The line between product development and scientific research is often blurred. Many developers posit efforts to increase model capabilities, efficiency, or indeed the study of their risks, as scientific research. The balance has to be struck between allowing this country to become an AI superpower and exploiting its data subjects. I contend that this amendment will go far to allay public fears of the abuse and use of their data to further the profits and goals of huge AI companies, most of which are based in the United States.

Noble Lords have only to look at the outrage last year at Meta’s use of Instagram users’ data without their consent to train the datasets for its new Llama AI model to understand the levels of concern. There were complaints to regulators, and the ICO posted that Meta

“responded to our request to pause and review plans to use Facebook and Instagram user data to train generative AI”.

However, so far, there has been no official change to Meta’s privacy policy that would legally bind it to stop processing data without consent for the development of its AI technologies, and the ICO has not issued a binding order to stop Meta’s plans to scrape users’ data to train its AI systems. Meanwhile, Meta has resumed reusing subjects’ data without their consent.

I thank the Minister for meeting me and talking through Amendment 14. I understand his concerns that, at a public interest threshold, the definition of scientific research will create a heavy burden on researchers, but I think it is worth the risk in the name of safety. Some noble Lords are concerned about the difficulty of defining “public interest”. However, the ICO has very clear guidelines about what public interest consists of. It states that

“you should broadly interpret public interest in the research context to include any clear and positive public benefit likely to arise from that research”.

It continues:

“The public interest covers a wide range of values and principles about the public good, or what is in society’s best interests. In making the case that your research is in the public interest, it is not enough to point to your own private interests”.


The guidance even includes further examples of research in the public interest, such as

“the advancement of academic knowledge in a given field … the preservation of art, culture and knowledge for the enrichment of society … or … the provision of more efficient or more effective products and services for the public”.

This guidance is already being applied in the Bill to sensitive data and public health data. I contend that if these carefully thought-through guidelines are good enough for health data, they should be good enough for all scientific data.

This view is supported in the EU, where

“the special data protection regime for scientific research is understood to apply where … the research is carried out with the aim of growing society’s collective knowledge and wellbeing, as opposed to serving primarily one or several private interests.”

The Minister will tell the House that the data exempted to be used for scientific research is well protected—that it has both the lawfulness test, as set out in the UK GDPR, and a reasonableness test. I am concerned that the reasonableness test in this Bill references

“processing for the purposes of any research that can reasonably be described as scientific, whether publicly or privately funded and whether carried out as a commercial or non-commercial activity”.

Normally, a reasonableness test requires an expert in the context of that research to decide whether it is reasonable to consider it scientific. However, in this Bill, “reasonable” just means that an ordinary person in the street can decide whether the research is reasonable to be considered scientific. This must be a broadening of the threshold of the definition.

It seems “reasonable” in the current climate to ask the Government to include a public interest test before giving the AI companies extensive scope to reuse our data, without getting renewed consent, on the pretext that the work is for scientific research. In the light of possible deregulation of the sector by the new regime in America, it is beholden on this country to ensure that our scientific research is dynamic, but safe. If the Government can bring this reassurance then for millions of people in this country they will increase trust in Britain’s AI revolution. I beg to move.

[Baroness Kidron (CB)]

My Lords, I support my noble friend Lord Colville. He has made an excellent argument, and I ask noble Lords on the Government Benches to think about it very carefully. If it is good enough for health data, it is good enough for the rest of science. In the interest of time, I will give an example of one of the issues, rather than repeat the excellent argument made by my noble friend.

In Committee, I asked the Government three times whether the cover of scientific research could be used, for example, to market-test ways to hack human responses to dopamine in order to keep children online. In the Minister’s letter, written during Committee, she could not say that the A/B testing of millions of children to make services more sticky—that is, more addictive—would not be considered scientific, but rather that the regulator, the ICO, could decide on a case-by-case basis. That is not good enough.

There is no greater argument for my noble friend Lord Colville’s amendment than the fact that the Government are unable to say if hacking children’s attention for commercial gain is scientific or not. We will come to children and child protection in the Bill in the next group, but it is alarming that the Government feel able to put in writing that this is an open question. That is not what Labour believed in opposition, and it is beyond disappointing that, now in government, Labour has forgotten what it then believed. I will be following my noble friend through the Lobby.

[Lord Clement-Jones (LD)]

My Lords, it is almost impossible to better the arguments put forward by the noble Viscount, Lord Colville, and the noble Baroness, Lady Kidron, so I am not even going to try.

The inclusion of a public interest requirement would ensure that the use of data for scientific research would serve a genuine societal benefit, rather than primarily benefiting private interests. This would help safeguard against the misuse of data for purely commercial purposes under the guise of research. The debate in Committee highlighted the need for further clarity and stronger safeguards in the Bill, to ensure that data for scientific research genuinely serves the public interest, particularly concerning the sensitive data of children. The call for a public interest requirement reflects the desire to ensure a balance between promoting research and innovation and upholding the rights and interests of data subjects. I very much hope that the House will support this amendment.

[Lord Sentamu (CB)]

My Lords, we are playing a bit of Jack-in-the-box. When I was being taught law by a wonderful person from Gray’s Inn, who was responsible for drafting the constitution of Uganda’s independence, Sir Dingle Foot, he said a phrase which struck me, and which has always stayed with me: law is a statement of public policy. The noble Viscount, Lord Coville, seeks that if there is to be scientific work, it must be conducted “in the public interest”. Law simply does not express itself for itself; it does it for the public, as a public policy. It would be a wonderful phrase to include, and I hope the Minister will accept it so that we do not have to vote on it.

[Lord Lucas (Con)]

My Lords, the regulator quite clearly needs a standard against which to judge. Public interest is the established one in FOI, medicine and elsewhere. It is the standard that is used when I apply for data under the national pupil database—and quite right too. It works well, it is flexible, it is well understood and it is a decent test to meet. We really ought to insist on it today.

[The Earl of Erroll (CB)]

My Lords, I want to add very quickly that we have got a problem here. If someone did take all this private data because we did not put this block on them, and they then had it, it would probably become their copyright and their stuff, which they could then sit on and block other people getting at. This amendment is fairly essential.

[Lord Markham (Con)]

Like the noble Lord, Lord Clement-Jones, I am not going to try to better the excellent speech made by the noble Viscount, Lord Colville.

We debated at much length in Committee the definition of the scientific interest, as it will dictate the breadth of the consent exemption for the data reused. If it is too broad, it could allow data companies—I am thinking specifically of AI programs—to justify data scraping without obtaining consent, should they successfully argue that it constitutes scientific research. However, should we create too narrow a definition, we could stifle commercial research and innovation. This would be disastrous for economic growth and the UK science and technology sector, which is one of our most dynamic sectors and has the potential to become one of the most profitable. We should be looking to support and grow, not hinder. Finding the happy medium here is no small feat, but the amendment tabled by the noble Viscount, Lord Colville of Culross, goes a long way towards achieving this by threading the needle.

By requiring the research to be in the public interest to qualify for the consent exemption for data reuse, we will prevent companies cloaking purely commercial activities for their own ends in the guise of scientific research, while allowing commercial research which will benefit the general public.

This particularly chimes with my time as Health Minister, when we tried to ensure that we could bring the public with us on the use of their health data. We did a lot of focus groups on all of this, and we found that we could have very widespread—70%-plus—public support if we could demonstrate that there really was a medical research benefit from all of this. This amendment is very much in keeping with that. As I say, it threads the needle. That is why we will be strongly supporting the amendment tabled by the noble Viscount, Lord Colville, and we hope he is minded to put the matter to a Division.

[Lord Vallance of Balham (Lab)]

I am grateful to the noble Viscount, Lord Colville, for his amendment and his engagement on this matter. I fully agree with the importance of ensuring that the term “scientific research” is not abused. Clause 67 will help avoid the misuse of the term by introducing a test of whether the research could reasonably be described as scientific. By explicitly requiring a reasonableness test, which is a well-known part of law, the provision is narrowing not broadening the current position.

18:30

The Government believe the test is sufficiently robust to limit misuse of the term “scientific research”. For example, many activities related to marketing or direct product development would not meet the test to be reasonably described as scientific. However, it is important not to disqualify entire fields of activity, because there may be a minority that constitutes genuine scientific research. This is often the case in the development of new medicines, for example, which is why the test needs to be case by case.

The test will not operate alone. There is currently extensive guidance by the ICO on the meaning of “scientific research”. This includes a list of indicators of genuine scientific research and outlines the globally accepted Frascati definition of research. This ICO guidance should be considered when assessing the reasonableness of describing an activity as scientific research; it has to be in the context of the Frascati definition and the ICO’s guidance.

However, the Government’s view is that a requirement for all scientific researchers to undergo an additional formal process to demonstrate that their specific research project is in the public interest would, at best, be a significant and unnecessary burden on our world-class research community. At worst, it would have a chilling effect on research that would ultimately damage public benefit. Much research is driven by curiosity and understanding; defining the precise public benefit at the outset may not be easy or even possible. The public benefit arises many years later. That is the case with the scientific research that we see coming to fruition now: nobody could have known what it would be useful for.

A public interest test is currently a requirement for scientific researchers only in limited circumstances, where there is extra risk that justifies the burden, such as when processing sensitive data under the research condition in the DPA 2018 or undertaking specific public health research. Not all health research is covered, but a specific aspect is. There will be further constraints on researchers through the specific safeguards set out in Clause 85 and the wider requirements of the UK GDPR, such as fairness.

Several people have spoken on this quite passionately and I completely understand why we need to get it right. It is important that companies cannot get hold of data and use it for things that we do not want them to use it for, including marketing and other approaches that will potentially cause harm. In looking after that, we must be mindful not to damage one of our great success stories in this country—scientific research—for which we have unique datasets that are important to improve all sorts of aspects of life.

The Bill will also clear up existing misunderstandings by clarifying, in Clause 71, that a lawful ground is required for all reuse of personal data. That includes scientific research, so it would not be possible to reuse things for a different purpose, in any sphere.

I hope the noble Viscount is content to withdraw this amendment, given these reassurances and the concerns about a significant unintended consequence from going down this route.

[Viscount Colville of Culross (CB)]

My Lords, I am grateful and impressed that the Minister has stepped into this controversial sphere of data management at such short notice. I wish his colleague, the noble Baroness, Lady Jones, a swift recovery.

I hope that noble Lords listened to the persuasive speeches that were given across the Benches, particularly from my noble friend Lady Kidron, with her warning about blurring the definition of scientific research. I am also grateful to the Opposition Benches for their support. I am glad that the noble Lord, Lord Markham, thinks that I am threading the needle between research and public trust.

I listened very carefully to the Minister’s response and understand that he is concerned by the heavy burden that this amendment would put on scientific research. I have listened to his explanation of the OECD Frascati principles, which define scientific research. I understand his concern that the rigorous task of demanding that new researchers have to pass a public interest test will stop many from going ahead with research. However, I repeat what I said in my opening speech: there has to be a balance between generating an AI revolution in this country and bringing the trust of the British people along with it. The public interest test is already available for restricted research in this field; I am simply asking for it to be extended to all scientific research.

I am glad that the reasonableness and lawfulness tests are built into Clause 67, but I ask for a test that I am sure most people would support—that the research should have a positive public benefit. On that note, I would like to seek the opinion of the House.

18:35

Division 4

Ayes: 258

Noes: 138

18:48

Clause 68: Consent to processing for the purposes of scientific research

Amendment 15

Moved by

[Baroness Kidron]

15: Clause 68, page 76, line 16, at end insert—
“(e) the data subject is not a child.”Member's explanatory statement
This amendment ensures the bill maintains the high level of legal protection for children’s data even when the protections offered to adults are lowered.

[Baroness Kidron (CB)]

My Lords, I rise to move Amendment 15 and to speak to Amendments 16, 20, 22, 27, 39, 45 and, briefly, government Amendment 40. Together, these amendments offer protections that children were afforded in the Data Protection Act 2018, which passed through this House, and they seek to fix some of the underperformance of the ICO in relation to children’s data.

Before we debate these amendments, it is perhaps worth the Government reflecting on the fact that survey after survey shows that the vast majority—indeed, almost all—of the UK population support stronger digital regulation in respect of children. In refusing to accept these amendments, or, indeed, in replacing them with their own amendments to the same effect, the Government are throwing away one of the successes of the UK Parliament with their newfound enthusiasm for tech with fewer safeguards.

I repeat my belief that lowering data protections for adults is a regressive step for all of us, but for children it is a tragedy that puts them at greater risk of harm—a harm that we in this House have a proud record of seeking to mitigate. The amendments in my name and variously in the names of the noble Lords, Lord Stevenson and Lord Clement-Jones, my noble friend Lord Russell and the noble Baroness, Lady Harding, are essential to preserving the UK’s commitment to child protection and privacy. As the House is well aware, there is cross-party support for child protection. While I will listen very carefully to the Minister, I too am prepared to test the opinion of the House if he has nothing to offer, and I will ask Labour colleagues to consider their responsibility to the nation’s children before they walk through the Lobby.

I will take the amendments out of numerical order, for the benefit of those who have not been following our proceedings. Amendment 22 creates a direct, unambiguous obligation on data processors and controllers to consider the central principles of the age-appropriate design code when processing children’s data. It acknowledges that children of different ages have different capacities and therefore may require different responses. Subsection (2) of the new clause it would insert addresses the concern expressed during the passage of the Bill and its predecessor that children should be shielded from the reduction in privacy protections that adults would experience under the Act when passed.

In the last few weeks, Meta has removed its moderators, and the once-lauded Twitter has become flooded with disinformation and abuse as a result of Elon Musk’s determined deregulation and support of untruth. We have seen the dial move on elections in Romania’s presidential election via TikTok, a rise in scams and the horror of sexually explicit deepfakes, which we will discuss in a later group.

Public trust in both tech and politics is catastrophically low. While we may disagree on the extent to which adults deserve privacy and protection, there are few in this House or the other place who do not believe it is a duty of government to protect children. Amendment 22 simply makes it a requirement that those who control and process children’s data are directly accountable for considering and prioritising their needs. Amendment 39 does the same job in relation to the ICO, highlighting the need to consider that high bar of privacy to which children are entitled, which should be a focus of the commissioner when exercising its regulatory functions, with a particular emphasis on their age and development stage.

Despite Dame Elizabeth Denham’s early success in drafting the age-appropriate design code, the ICO’s track record on enforcement is poor and the leadership has not championed children by robustly enforcing the ADC, or when faced with proposals that watered down child protections in this Bill and its predecessor. We will get to the question of the ICO next week, but I have been surprised by the amount of incoming mail dissatisfied with the regulator and calling on Parliament to demand more robust action. This amendment does exactly that in relation to children.

Government Amendment 40 would require the ICO, when exercising its functions, to consider the fact that children merit specific protections. I am grateful for and welcome this addition as far as it goes; but in light of the ICO’s disappointing track record, clearer and more robust guidance on its obligations is needed.

Moreover, the Government’s proposal is also insufficient because it creates a duty on the ICO only. It does nothing for the controllers and processors, as I have already set out in Amendment 22. It is essential that those who control and process children’s data are directly accountable for prioritising their needs. The consequences when they do not are visible in the anxiety, body dysmorphia and other developmental issues that children experience as a result of their time online.

The Government have usefully introduced an annual report of ICO activities and action. Amendment 45 simply requires them to report the action it has taken specifically in relation to children, as a separate item. Creating better reporting is one of the advances the Government have made; making it possible to see what the ICO has done in regard to children is little more than housekeeping.

This group also includes clause-specific amendments, which are more targeted than Amendment 22. Amendment 15 excludes children from the impact of the proposal to widen the definition of scientific research in Clause 68. Given that we have just discussed this, I may reconsider that amendment. However, Amendment 16 excludes children from the “recognised legitimate interest” provisions in Clause 70. This means that data controllers would still be required to consider and protect children, as currently required under the legitimate interest basis for processing their data.

Amendment 20 excludes children from the new provisions in Clause 71 on purpose limitation. Purpose limitation is at the heart of GDPR. If you ask for a particular purpose and consent to it, extending that purpose is problematic. Amendment 21 ensures that, for children at least, the status quo of data protection law stays the same: that is to say, their personal data can be used only for the purpose for which it was originally collected. If the controller wants to use it in a different way, it must go back to the child—or, if they are under 13, their parent—to ask for further permission.

Finally, Amendment 27 ensures that significant decisions that impact children cannot be made during automated processes unless they are in a child’s best interest. This is a reasonable check and balance on the proposals in Clause 80.

In full, these amendments uphold our collective responsibility to support, protect and make allowances for children as they journey from infancy to adulthood. I met with the Minister and the Bill team, and I thank them for their time. They rightly made the point that children should be participants in the digital world, and I should not seek to exempt them. I suggest to the House that it is the other way round: I will not seek to exempt children if the Government do not seek to put them at risk.

Our responsibility to children is woven into the fabric of our laws, our culture and our behaviour. It has taken two decades to begin to weave childhood into the digital environment, and I am asking the House to make sure we do not take a single retrograde step. The Government have a decision to make. They can choose to please the CEOs of Silicon Valley in the hope that capitulation on regulatory standards will get us a data centre or two; or they can prioritise the best interests of UK children and agree to these amendments, which put children’s needs first. I beg to move.

[Baroness Harding of Winscombe (Con)]

My Lords, I rise to support all the amendments in this group. I have added my name to Amendments 15, 22, 27 and 45. The only reason my name is not on the other amendments is that others got there before me. As is always the case in our debates on this topic, I do not need to repeat the arguments of the noble Baroness, Lady Kidron. I would just like to make a very high-level point.

19:00

In her last paragraph, the noble Baroness referenced the Government’s concern that we should not seek to exempt children from the digital world. It is really not difficult to encourage children to use the digital world. Any of us who have young children, or young grandchildren, know that in the blink of an eye children pick up a device and access anything they want. We have not got a problem with children accessing digital.

What we have got a very big problem with is how to protect them in that world. Those of us who have worked and campaigned on child internet safety for the last 15 years know how very hard it is to protect our children. I respect the Minister enormously, and I send my good wishes to the noble Baroness, Lady Jones, and wish her a speedy recovery; I know they both care about the issue. However, those of us who have spent a lot of time working in this area have learned that you need to have the detail in the Bill. Many of us worked a decade ago on the age-appropriate design code, which even though it was in a Bill, was incredibly hard to get implemented. We are all learning to our cost already regarding issues in relation to the Online Safety Act that we were told in this Chamber it did not matter whether they were on the face of the Bill and Ofcom would be able to sort them. We are now told that Ofcom does not have the powers because it is not on the face of the Bill.

I urge the Minister to take on board the concern that I know he will hear from all sides of the House that we need substantially to strengthen this Bill’s protection for children, otherwise I fear that, in a year or two, the same group of us will be saying the same thing about another Bill and millions of children will still be unprotected.

[Lord Russell of Liverpool (CB)]

My Lords, I have also put my name to most of the amendments. As with the noble Baroness, Lady Harding, that some of them do not have my name on them is because I arrived too late. Between her and my noble friend Lady Kidron, they have said everything that needs to be said very powerfully. As one who has more recently become involved in a variety of Bills—the Policing and Crime Bill, the Online Safety Bill, and the Victims and Prisoners Bill—in every case trying to fight for and clarify children’s rights, I can say that it has been an uphill battle. But the reason we have been fighting for this is that we have lamentably failed to protect the interests of children for the past two decades as the world has changed around us. All of us who have children or grandchildren, nephews or nieces, or, like me, take part in the Learn with the Lords programme and go into schools, or who deal with mental health charities, are aware of the failure of government and regulators to take account, as the world changed around us, of the effect it would have on children.

In our attempts to codify and clarify in law what the dangers are and what needs to be put in place to try to prevent them, we have had an uphill struggle, regardless of the colour of government. In principle, everyone agrees. In practice, there is always a reason why it is too difficult—or, the easy way out is to say, “We will tell the regulator what our intent is, but we will leave it up to the regulator to decide”.

Our experience to date of the ability of a regulator entirely to take on board what was very clearly the will of Parliament when the Bill became an Act is not being made flesh when it comes to setting out the regulation. Unless it is in an Act and it is made manifestly clear what the desired outcomes are in terms of safety of children, the regulator—because it is difficult to do this well—will not unreasonably decide that if it is too difficult to do, they will settle for something that is not as good as it could be.

What we are trying to do with this set of amendments is to say to the Government up front, “We want this to be as effective as it possibly could be now”. We do not want to come back and rue the consequences of not being completely clear and of putting clear onus of responsibility on the regulators in two or three years’ time, because in another two or three years children will have important parts of their childhood deteriorating quite rapidly, with consequences that will stay with them for the rest of their lives.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I was one of those who was up even earlier than the noble Baroness, Lady Harding, and managed to get my name down on these amendments. It puts me in a rather difficult position to be part of the government party but to seek to change what the Government have arrived at as their sticking position in relation to this issue in particular—and indeed one or two others, but I have learned to live with those.

This one caught my eye in Committee. I felt suddenly, almost exactly as the noble Lord, Lord Russell said, a sense of discontinuity in relation to what we thought it was in the Government’s DNA—that is, to bring forward the right solution to the problems that we have been seeking to change in other Bills. With the then Online Safety Bill, we seemed to have an agreement around the House about what we wanted, but every time we put it back to the officials and people went away with it and came back with other versions, it got worse and not better. How children are dealt with and how important it is to make sure that they are prioritised appears to be one of those problems.

The amendments before us—and I have signed many of them, because I felt that we wanted to have a good and open debate about what we wanted here—do not need to be passed today. It seems to me that the two sides are, again, very close in what we want to achieve. I sensed from the excellent speech of the noble Baroness, Lady Kidron, that she has a very clear idea of what needs to go into this Bill to ensure that, at the very least, we do not diminish the sensible way in which we drafted the 2018 Bill. I was part of that process as well; I remember those debates very well. We got there because we hammered away at it until we found a way of finding the right words that bridged the two sides. We got closer and closer together, but sometimes we had to go even beyond what the clerks would feel comfortable with in terms of government procedure to do that. We may be here again.

When he comes to respond, can the Minister commit to us today in this House that he will bring back at Third Reading a version of what he has put forward—which I think we all would say does not quite go far enough; it needs a bit more, but not that much more—to make it meet with where we currently are and where, guided by the noble Baroness, Lady Kidron, we should be in relation to the changing circumstances in both the external world and indeed in our regulator, which of course is going to go through a huge change as it reformulates itself? We have an opportunity, but there is also a danger that we do not take it. If we weaken ourselves now, we will not be in the right position in a few years’ time. I appeal to my noble friend to think carefully about how he might manage this process for the best benefit of all of us. The House, I am sure, is united about where we want to get to. The Bill does not get us there. Government Amendment 18 is too modest in its approach, but it does not need a lot to get it there. I think there is a way forward that we do not need to divide on. I hope the Minister will take the advice that has been given.

[Lord Clement-Jones (LD)]

My Lords, we have heard some of the really consistent advocates for children’s online protection today. I must say that I had not realised that the opportunity of signing the amendments of the noble Baroness, Lady Kidron, was rather like getting hold of Taylor Swift tickets—clearly, there was massive competition and rightly so. I pay tribute not only to the speakers today but in particular to the noble Baroness for all her campaigning, particularly with 5Rights, on online child protection.

All these amendments are important for protecting children’s data, because they address concerns about data misuse and the need for heightened protection for children in the digital environment, with enhanced oversight and accountability in the processing of children’s data. I shall not say very much. If the noble Baroness pushes Amendment 20 to a vote, I want to make sure that we have time before the dinner hour to do so, which means going through the next group very quickly. I very much hope that we will get a satisfactory answer from the Minister. The sage advice from the noble Lord, Lord Stevenson, hit the button exactly.

Amendment 20 is particularly important in this context. It seeks to exclude children from the new provisions on purpose limitation for further processing under Article 8A. As the noble Baroness explains, that means that personal data originally collected from a child with consent for a specific purpose could not be reused for a different, incompatible purpose without obtaining fresh consent, even if the child is now an adult. In my view, that is core. I hope the Minister will come back in the way that has been requested by the noble Lord, Lord Stevenson, so we do not have to have a vote. However, we will support the noble Baroness if she wishes to test the opinion of the House.

[Viscount Camrose (Con)]

My Lords, I too thank the noble Baroness, Lady Kidron, for all her amendments in this group, and I thank the Minister for his amendment.

Amendment 15 seeks to maintain the high level of legal protection for children’s data even where protections for adults may be eased in the context of scientific research. I acknowledge the concerns raised about the potential implications that this amendment could have for medical research and safeguarding work. It is important to recognise that young people aged 16 and over are entitled to control their medical information under existing legal frameworks, reflecting their ability to understand and consent in specific contexts.

There is a legitimate concern that by excluding all children categorically, including those aged 16 and 17, we risk impeding critical medical research that could benefit young people themselves. Research into safeguarding may also be impacted by such an amendment. Studies that aim to improve systems for identifying and preventing abuse or neglect rely on the careful processing of children’s data. If this amendment were to inadvertently create a barrier to such vital work, we could find ourselves undermining some of the protections that it seeks to reinforce.

That said, the amendment highlights an important issue: the need to ensure that ethical safeguards for children remain robust and proportionate. There is no question that the rights and welfare of children should remain paramount in research contexts, but we must find the right balance—one that allows valuable, ethically conducted research to continue without eroding the legal protections that exist for children’s data. So I welcome the intent of the amendment in seeking to protect children, of course, and I urge us, as the noble Lord, Lord Stevenson, put it, to continue working collaboratively to achieve a framework that upholds their rights without hindering progress in areas that ultimately serve their best interests.

As with the previous amendment, I recognise the intent of Amendment 16, which seeks to protect children’s data by excluding them from the scope of recognised legitimate interests. Ensuring that children continue to benefit from the highest level of legal protection is a goal that, needless to say, we all share. However, I remain concerned that this could have less desirable consequences too, particularly in cases requiring urgent safeguarding action. There are scenarios where swift and proportionate data processing is critical to protecting a child at risk, and it is vital that the framework that we establish does not inadvertently create barriers to such essential work.

I am absolutely in support of Amendment 20. It provides an important safeguard by ensuring that children’s data is not used for purposes beyond those for which it was originally collected, unless it is fully compatible with the original purpose. Children are particularly vulnerable when it comes to data processing and their understanding of consent is limited. The amendment would strengthen protection for children by preventing the use of their data in ways that were not made clear to them or their guardians at the time of collection. It would ensure that children’s data remained secure and was not exploited for unrelated purposes.

On Amendment 22, the overarching duty proposed in this new clause—to prioritise children’s best interests and ensure that their data is handled with due care and attention—aligns with the objective that we all share of safeguarding children in the digital age. We also agree with the principle that the protections afforded to children’s data should not be undermined or reduced, and that those protections should remain consistent with existing standards under the UK GDPR.

However, although we support the intent of the amendment, we have concerns about the reference to the UN Convention on the Rights of the Child and general comment 25. Although these international frameworks are important, we do not believe they should be explicitly tied into this legislation. Our preference would be for a redraft of this provision that focused more directly on UK law and principles, ensuring that the protections for children’s data were robust and tailored to our legal context, rather than linking it to international standards in a way that could create potential ambiguities.

19:15

I support Amendment 27. It is an important amendment that would ensure that significant decisions impacting a child could not be made solely using automated decision-making unless those decisions were in the child’s best interests. This is a rather ingenious safeguard to ensure that children’s rights and welfare are fully considered in decisions that could affect them. The amendment would ensure that decisions made using automated processes could not be taken unless it was clear that they served the best interests of the child, taking into account their rights and development stage. The amendment would build on the principles already set out in the Data Protection Act 2018, reinforcing the need for extra protections for children.

I support the intent behind Amendment 39, which rightly recognises that children are entitled to a higher standard of protection regarding their personal data. We agree that children’s data requires special consideration at different stages of their development, as they may not fully understand the risks or consequences associated with the processing of their data. This principle is fundamental to safeguarding their rights. Again, though, while we support the overall intent of the amendment, we have concerns about the explicit reference to the UN Convention on the Rights of the Child and general comment 25, as per my comments on the previous amendment.

Amendment 40 rightly emphasises that children merit specific protection when it comes to their personal data, given their vulnerability and the fact that they may be less aware of the risks and consequences associated with such processing. I am reassured to see the Government taking steps to ensure the highest level of protection for children’s data, as that is essential to safeguarding their rights in an increasingly digital world. I support the spirit of the amendment but would characterise it as a minor technical adjustment to ensure clarity. It is certainly important that the Information Commissioner’s duties are clearly set out, and the amendment would help to reinforce the specific protections that children should receive in relation to their personal data.

We on these Benches support Amendment 45, which seeks to ensure that the Information Commissioner’s annual report clearly records activities and actions taken in relation to children’s data protection. That is an important step in enhancing transparency, accountability and understanding of how children’s data is being safeguarded under the regulatory framework. The inclusion of those specific details in the annual report would not only be beneficial for ensuring accountability but reinforce the commitment to prioritising children’s best interests in the regulatory framework. It would provide clarity on the actions taken by the ICO, fostering greater trust in the oversight and enforcement of data protection laws, particularly with respect to children.

[Lord Vallance of Balham (Lab)]

I will speak first to government Amendment 40, tabled in my name, concerning the ICO’s duty relating to children’s personal data. Before that, though, I thank the noble Lords, Lord Stevenson and Lord Russell, the noble Baroness, Lady Harding, and in particular the noble Baroness, Lady Kidron, for such considered debates on this incredibly important issue, both in today’s discussion in the House and in the meetings we have had together. Everyone here wants this to be effective and recognises that we must protect children.

The Government are firmly committed to maintaining high standards of protection for children, which is why they decided not to proceed with measures in the previous Data Protection and Digital Information Bill that would have reduced requirements for data protection impact assessments, prior consultation with the ICO and the designation of data protection officers. The ICO guidance is clear that organisations must complete an impact assessment in relation to any processing activity that uses children’s or other vulnerable people’s data for marketing purposes, profiling or other automated decision-making, or for offering online services directly to children.

The Government also expect organisations which provide online services likely to be accessed by children to continue to follow the standards on age-appropriate design set out in the children’s code. The noble Baroness, Lady Kidron, worked tirelessly to include those provisions in the Data Protection Act 2018 and the code continues to provide essential guidance for relevant online services on how to comply with the data protection principles in respect of children’s data. In addition to these existing provisions, Clause 90 already includes a requirement for the ICO to consider the rights and interests of children when carrying out its functions.

I appreciate the point that the noble Baroness made in Committee about the omission of the first 10 words of recital 38 from these provisions. As such, I am very happy to rectify this through government Amendment 40. The changes we are making to Clause 90 will require the Information Commissioner to consider, where relevant, when carrying out its regulatory functions the fact that children merit special protection with regard to their personal data. I hope noble Lords will support this government amendment.

Turning to Amendment 15 from the noble Baroness, Lady Kidron, which excludes children’s data from Clause 68, I reassure her that neither the protections for adults nor for children are being lowered. Clause 68 faithfully transposes the existing concept of giving consent to processing for an area of scientific research from the current recital. This must be freely given and be fully revokable at any point. While the research purpose initially identified may become more specific as the research progresses, this clause does not permit researchers to use the data for research that lies outside the original consent. As has been highlighted by the noble Viscount, Lord Camrose, excluding children from Clause 68 could have a detrimental effect on health research in children and could unfairly disadvantage them. This is already an area of research that is difficult and underrepresented.

I know that the noble Baroness, Lady Kidron, cares deeply about this but the fact is that if we start to make research in children more difficult—for example, if research on children with a particular type of cancer found something in those children that was relevant to another cancer, this would preclude the use of that data—that cannot be right for children. It is a risk to move and exempt children from this part of the Bill.

Amendment 16 would prevent data controllers from processing children’s data under the new recognised legitimate interests lawful ground. However, one of the main reasons this ground was introduced was to encourage organisations to process personal data speedily when there is a pressing need to do so for important purposes. This could be where there is a need to report a safeguarding concern or to prevent a crime being committed against a child. Excluding children’s data from the scope of the provision could therefore delay action being taken to protect some children—a point also made in the debate.

Amendment 20 aims to prohibit further processing of children’s personal data when it was collected under the consent lawful basis. The Government believe an individual’s consent should not be undermined, whether they are an adult or a child. This is why the Bill sets out that personal data should be used only for the purpose a person has consented to, apart from situations that are in the public interest and authorised by law or to comply with the UK GDPR principles. Safeguarding children or vulnerable individuals is one of these situations. There may be cases where a child’s data is processed under consent by a social media company and information provided by the child raises serious safeguarding concerns. The social media company must be able to further process the child’s data to make safeguarding referrals when necessary. It is also important to note that these public interest exceptions apply only when the controller cannot reasonably be expected to obtain consent.

I know the noble Baroness, Lady Kidron, hoped that the Government might also introduce amendments to require data controllers to apply a higher standard of protection to children’s data than to adults’. The Government have considered Amendment 22 carefully, but requiring all data controllers to identify whether any of the personal data they hold relates to children, and to apply a higher standard to it, would place disproportionate burdens on small businesses and other organisations that currently have no way of differentiating age groups.

Although we cannot pursue this amendment as drafted, my understanding of the very helpful conversations that I have had with the noble Baroness, Lady Kidron, is that she intended for this amendment to be aimed at online services directed at or likely to be accessed by children, not to every public body, business or third sector organisation that might process children’s data from time to time.

I reassure noble Lords that the Government are open to exploring a more targeted approach that focuses on those services that the noble Baroness is most concerned about. The age-appropriate design code already applies to such services and we are very open to exploring what further measures could be beneficial to strengthen protection for children’s data. This point was eloquently raised by the noble Baronesses, Lady Harding and Lady Kidron, and the noble Lord, Lord Stevenson, and is one that we would like to continue. Combined with the steps we are taking in relation to the new ICO duty, which will influence the support and guidance it provides for organisations, we believe this could drive better rates of compliance. I would be very pleased to work with all noble Lords who have spoken on this to try to get this into the right place.

I turn to Amendment 27, tabled by the noble Baroness, Lady Kidron. I agree with her on the importance of protecting children’s rights and interests when undertaking solely automated decision-making. However, we think this amendment, as currently drafted, would cause operational confusion as to when solely automated decision-making can be carried out. Compliance with the reformed Article 22 and the wider data protection legislation will ensure high standards of protection for adults and children alike, and that is what we should pursue.

I now turn to Amendment 39, which would replace the ICO’s children’s duty, and for which I again thank the noble Baroness, Lady Kidron, and the noble Lord, Lord Russell. As a public body, the ICO must adhere to the UK’s commitment to the UN Convention on the Rights of the Child, and we respectfully submit that it is unnecessary to add further wording of this nature to the ICO’s duty. We believe that government Amendment 40, coupled with the ICO’s principal objective to secure an appropriate level of protection, takes account of the fact that the needs of children might not always look the same.

Finally, to address Amendment 45, the Government believe that the Bill already delivers on this aim. While the new annual regulatory action report in Clause 101 will not break down the activity that relates to children, it does cover all the ICO’s regulatory activity, including that taken to uphold the rights of children. This will deliver greater transparency and accountability on the ICO’s actions. Furthermore, Clause 90 requires the ICO to set out in its annual report how it has complied with its statutory duties. This includes the new duty relating to children.

To conclude, I hope that the amendment we tabled today and the responses I have set out reassure noble Lords of our commitment to protect children’s data. I ask noble Lords to support the amendment tabled in my name, and hope that the noble Baroness, Lady Kidron, feels content to withdraw her own.

[Baroness Kidron (CB)]

Before the Minister sits down, I have some things to say about his words. I did not hear: “agree to bring forward a government amendment at Third Reading”. Those are the magic words that would help us get out of this situation. I have tried to suggest several times that the Government bring forward their own amendment at Third Reading, drafted in a manner that would satisfy the whole House, with the words of the noble Viscount, Lord Camrose, incorporated and the things that are fundamental.

I very much admire the Minister and enjoy seeing him in his place but I say to him that we have been round this a few times now and a lot of those amendments, while rather nerdy in their obsession, are based on lived experience of trying to hold the regulator and the companies to account for the law that we have already passed. I am seeking those magic words before the Minister sits down.

[Lord Vallance of Balham (Lab)]

I have likewise enjoyed working with the noble Baroness. As has been said several times, we are all working towards the same thing, which is to protect children. The age-appropriate design code has been a success in that regard. That is why we are open to exploring what further measures can be put in place in relation to the ICO duty, which can help influence and support the guidance to get that into the right place. That is what I would be more than happy to work on with the noble Baroness and others to make sure that we get it right.

19:30

[Lord Stevenson of Balmacara (Lab)]

I am presuming a little here that the Minister’s lack of experience in the procedures of the House is holding him back, but I know he is getting some advice from his left. The key thing is that we will not be able to discuss this again in this House unless he agrees that he will bring forward an amendment. We do not have to specify today what that amendment will be. It might not be satisfactory, and we might have to vote against it anyway. But the key is that he has to say this now, and the clerk has to nod in agreement that he has covered the ground properly.

We have done this before on a number of other Bills, so we know the rules. If the Minister can do that, we can have the conversations he is talking about. We have just heard the noble Baroness, Lady Kidron, explain in a very graceful way that this will be from a blank sheet of paper so that we can build something that will command the consensus of the House. We did it on the Online Safety Bill; we can do it here. Please will he say those words?

[Lord Vallance of Balham (Lab)]

I am advised that I should say that I am happy for the amendment to be brought forward, but not as a government amendment. We are happy to hear an amendment from the noble Baroness at Third Reading.

[Lord Stevenson of Balmacara (Lab)]

Let us be quite clear about this. It does not have to be a government amendment, but the Government Minister has to agree that it can be brought forward.

[Lord Vallance of Balham (Lab)]

I have said that.

[Lord Stevenson of Balmacara (Lab)]

He said yes.

[Lord Clement-Jones (LD)]

We take that as a yes.

[Lord Stevenson of Balmacara (Lab)]

This is a self-governing House.

[Baroness Kidron (CB)]

I thank the Minister for that very generous offer. I also thank the noble Lord, Lord Stevenson, for his incredible support. I note that, coming from the Government Benches, that is a very difficult thing to do, and I really appreciate it. On the basis that we are to have an amendment at Third Reading, whether written by me with government and opposition help or by the Government, that will address these fundamental concerns set out by noble Lords, I will not press this amendment today.

These are not small matters. The implementation of the age-appropriate design code depends on some of the things being resolved in the Bill. There is no equality of arms here. A child, whether five or 15, is no match for the billions of dollars spent hijacking their attention, their self-esteem and their body. We have to, in these moments as a House, choose David over Goliath. I thank the Minister and all the supporters in this House —the “Lords tech team”, as we have been called in the press. With that, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Clause 70: Lawfulness of processing

Amendment 16 not moved.

19:34

Consideration on Report adjourned until not before 8.14 pm.

Higher Education Regulatory Approach

Tuesday 21st January 2025 Lords Chamber

Statement

The following Statement was made in the House of Commons on Wednesday 15 January.

“With permission, I shall make a statement on the Higher Education (Freedom of Speech) Act 2023.

In July 2024 I paused further commencement of the Act in response to concerns raised by a cross-section of voices. I took that decision because it is vital that we get this right. Our universities are one of this country’s greatest strengths, and I know Members across the House share my pride in a truly world-leading sector. At the centre of that excellence sit academic freedom and freedom of speech. The ability of our academics to explore and express new ideas through teaching and research is precious and we must protect it.

These fundamental freedoms are more important—much more important—than the wishes of some students not to be offended. University is a place for ideas to be exposed and debated, to be tried and tested. For young people, it is a space for horizons to be broadened, perspectives to be challenged and ideas to be examined. It is not a place for students to shut down any view with which they disagree.

Here is our starting point: academic freedom matters and freedom of speech matters, and we will preserve those two pillars of national strength, but we will proceed in a way that actually works. That is why we have carried out extensive engagement covering all corners of the debate: academics, universities, students; those for the Act and those against. All voices were heard.

I was especially keen to consider the views of minority groups, to learn how the Act might affect them, particularly given the shocking rise in anti-Semitism on campus. Standing here in this great Chamber of debate, I remain resolute about the importance of free speech, but our engagement on the Act has raised concerns that any responsible Government must take seriously. What was being proposed simply did not rise to the challenge: unworkable duties on student unions, a tort clogging up the court system, and the Office for Students obliged to consider a vast number of complex complaints.

There are also serious concerns over the Act’s potential impact on the welfare of minority groups. Many are worried that it could lead to increased harassment and discrimination on campus, and that the Act could push providers to overlook their safety. I share their concerns.

I reiterate that I am appalled by the rise in anti-Semitism on campus. In my view, rising anti-Semitism is best tackled through education, which is why I have confirmed £7 million in funding to tackle anti-Semitism in schools, colleges and universities.

I have reached a way forward that I believe is effective and proportionate, delivering an Act that is fair and workable. My decisions, subject to agreement from Parliament, will ensure that our higher education sector and the Office for Students continue to protect academic freedom and freedom of speech while ensuring the safety of minority groups.

I propose implementing key elements of the Act and returning others to Parliament for decisions on their amendment or repeal. I propose shortly commencing the following requirements currently in the Act: the duties on higher education providers to take reasonably practicable steps to secure and promote freedom of speech within the law; the duty on higher education providers to put in place a code of conduct on freedom of speech; and the ban on non-disclosure agreements for staff and students at higher education providers in cases of bullying, harassment and sexual misconduct. I also plan to commence the duties on the OfS to promote freedom of speech and the power to give advice and share best practice.

I will retain the director for free speech and academic freedom role, and I am pleased that Dr Ahmed will be staying on. I have complete confidence in Dr Ahmed. However, in my view, it is not right for this position to be a political appointee. The director should, of course, hold a deep belief in free speech and academic freedom, but their independence matters, and therefore their appointment must be free from any suspicion of political bias. Sir David Behan’s review of the OfS, commenced under the previous Government, recommended that we reconsider how all OfS executive and board appointments should be made. I will decide on that shortly.

While there is much in the Act that is valuable, there are provisions that I do not believe to be proportionate or necessary, and which will drain resources from providers and distract from the other important issues they face. It is therefore my intention to return to Parliament to seek the repeal of two provisions.

The first is the duties on student unions in the Act. Student unions are neither equipped nor funded to navigate such a complex regulatory environment, and they are already regulated by the Charity Commission. However, I fully expect student unions to protect lawful free speech, whether they agree with the views expressed or not. I also expect HE providers to work closely with them to ensure that that happens and to act decisively to ensure that their student unions comply with their free speech code of conduct.

The second provision I will seek to repeal is the tort. I have heard the views in favour of the tort, and understand the arguments being made. However, it would create costly litigation that would risk diverting resources away from students at a time when university finances are already strained. Members can be assured that the remaining routes of redress have plenty of teeth—the Office for Students will have powers to take tough regulatory action where universities and colleges do not meet their duties. Ultimately, an Act needs to be workable for its teeth to bite. How would Conservative Members rather our universities spend their time and resources: by lawyering up, or by focusing on high-quality teaching and ground-breaking research? In fact, the fear of litigation could hurt rather than help free speech, as universities may decide against inviting challenging speakers to avoid ending up in court, and nobody wants that.

I have a message for vice-chancellors who fail to take this seriously: protect free speech on your campuses or face the consequences. For too long, too many universities have been too relaxed about these issues, and too few took them seriously enough—and that must change.

There are other elements of the Act that I am planning to retain but, with parliamentary agreement, to amend. I propose keeping a complaints scheme in place with the OfS. It is an important route of redress for anyone whose academic freedom or free speech has not been protected, and there must be a route for righting wrongs. However, it must be proportionate: the OfS should have the power to consider complaints, rather than a duty to assess every single complaint it receives, including those that are poorly put together or nonsensical. This way, the OfS will be freed up to prioritise the most serious complaints. I also want to remove the confusing duplication of complaints schemes for students. The Office of the Independent Adjudicator can already consider student complaints on free speech, and will continue to do so. The OfS complaints scheme will focus on complaints from staff, external speakers and university members.

I will also amend the OfS’s mandatory condition of registration to give it flexibility in how it applies this condition to different types of providers. The OfS should have room to determine the best way to regulate on a case-by-case basis. That is the only way to deliver a sensible system that actually works.

Finally, I will take more time to consider implementation of the overseas funding measures. I remain fully committed to tackling cases of interference by overseas Governments, and the wider measures in the Act will further strengthen our protections. However, I want to ensure that any new reporting requirements for providers add value without being overly burdensome. We continue to work at pace with the sector on the wider implementation of the foreign influence registration scheme. My officials are working across government and with the sector to review our response, and I will confirm my final decision in due course.

I intend to draft a policy paper to set out these proposals in more detail and will return to the House when it is ready. Where I am returning matters to Parliament, I will keep them under review in the meantime.

Our universities are leading lights of learning. They are spaces for vigorous discussion where people of all ages, faiths and backgrounds can come together to debate new ideas. I call on universities to promote a culture of disagreeing well. There is already excellent work going on across the sector, but we must see more.

Let me be clear that students have a duty as well: to embody that spirit of debate that makes our universities great, and not to simply try to cancel any views with which they disagree. This Government will secure freedom of speech in legislation that is practical, proportionate and workable, but legislation alone will never be enough. Freedom of speech is not easy. It is not just a right but a responsibility. If we want a culture of debate that is robust yet respectful, challenging yet considerate, and strong yet civil, we must all do our part to nurture it. The freedom of speech Act provides a legal framework, but it is up to all of us every day to build a culture of truly free speech. I commend this Statement to the House”.

19:33

[Baroness Barran (Con)]

My Lords, on this side of the House we very much welcome the decision of Government to commence the Higher Education (Freedom of Speech) Act, but we deeply regret the delay, the changes the Government propose to make and the extent of the continuing uncertainty and delay over several parts of the Act.

One of the areas of inconsistency and confusion that the Government have introduced relates to complaints. The Government have chosen to create two different routes for complaint: via the Office for Students for academics and via the OIA for students. I would be grateful if the Minister could explain the rationale for separating them. Would it not be simpler to abandon the jurisdiction of the OIA and give all its powers to the newly empowered OfS? Can the Minister explain what the Government think will happen if—as is perfectly possible—standards of protection diverge in some way and one group is given stronger protection than another? What happens if a member of staff complains to the OfS and a student complains to the OIA on the same case?

Sticking with complaints, the Government have said that they will amend the law governing the operation of the OfS complaints scheme so that it is not obliged to consider every complaint. However, the Act already says that the OfS can dismiss a complaint on the basis that it is either frivolous or vexatious. I would be grateful if the Minister could explain why this is necessary. What will be the threshold for the complaints the OfS will consider? Will there be an appeals mechanism if the OfS does not judge that a complaint meets its threshold?

The Government have also created a specific gap in relation to student unions. The Secretary of State said that she fully expects

“student unions to protect lawful free speech, whether they agree with the views expressed or not”.—[Official Report, Commons, 15/1/25; col. 380.]

But the Government have said that they want to remove the provisions about student unions. Many of the worst and most egregious cases of cancellation, affecting a number of Members of your Lordships’ House, have involved student unions.

Given that the Government both accept the existence of a free-speech problem on campuses and the need for increased standards of protection, does exempting student unions from the scope of the Act not leave a serious gap in effective protection? Going forward, how do they expect to deal with cases where a cancellation, which would have been unlawful if done by a university or college, is done by a student union?

We are also in the dark about timing. The Government have said that they intend to bring into force various parts of the Act and seek to amend and then bring into force others. Can the Minister set out for the House the timescale for both processes? When will the statutory instrument bringing into force those sections which the Government will not seek to amend be laid before Parliament? When will the commencement date of those sections be? When will the Government seek to make the amendments they have proposed and when will they seek to bring those new sections into force? The start of the 2025-26 academic year seems a natural implementation point, but everyone involved in this area needs maximum certainty, so it would be helpful if the Minister could commit now, or commit to making a statement as soon as possible, setting out that timeline.

In the other place, the Secretary of State said that her decision to seek to repeal the tort clause was made to save universities and colleges expense by avoiding the risk of litigation. Can the Minister confirm that such a risk necessarily exists, even if the form of that risk takes the threat of actions for judicial review rather than civil litigation? Will she agree that, along with action under the complaints scheme, universities and colleges that disregard their duties under the Higher Education (Freedom of Speech) Act could face public law legal action, and that they must not see the removal of the tort clause as an excuse to drag their feet or ignore their legal responsibilities?

On foreign influence registration, we were very disappointed to see the removal of the monitoring of overseas funding changed, not only with what felt like very unfortunate timing but when the documents from the Free Speech Union judicial review have been revealed, which indicate that the potential impacts on English higher education institutions operating in China played a role in that decision. Can the Minister reassure the House that those decisions were not made with the Chancellor’s recent trip to China in mind?

I acknowledge the courage and energy of those academics who have campaigned to get this law enacted, including Dr Edward Skidelsky, who co-ordinated the letter of over 650 academics, Professor David Abulafia, Professor Alice Sullivan and Professor Abhishek Saha, as well as the women’s rights groups, including Sex Matters, led by the tireless Helen Joyce, the powerful legal interventions, including from Akua Reindorf KC and Dr Julius Grower, and the many groups that have campaigned on this issue.

At the end of this, we are left with more questions. If you were the governor of a university or responsible for managing these issues, what would you be doing now? How long are you going to have to wait until the position is clear? As so often has been the case since the election, why are the Government undoing something that had received full parliamentary scrutiny without a plan for what to put in its place? I suspect that I shall receive a long letter with answers from the Minister, but I live in hope for some answers now.

[Lord Wallace of Saltaire (LD)]

My Lords, Liberal Democrats welcome this Statement, but for entirely different reasons from those that noble Lords have just heard from the Conservative Front Bench. This provision removes parts of the Act that we opposed during its passage through Parliament, and we welcome that; we were not persuaded that the Act as such was necessary. It was driven by the right-wing culture war against the “liberal elite”, with the Conservatives taking their cue from the Republican right and Fox News as, sadly, they so often have done in recent years.

The Act contradicted Conservative and Liberal principles of respect for autonomous bodies and limits to government regulation and state interference. The costs of litigation imposed on cash-strapped universities threatened to be heavy. The burdens on student unions were likely to be beyond their capacity to manage. The proposed duplication of complaints schemes was badly designed. The requirements for accepting outside speakers virtually unconditionally potentially opened the door to Holocaust deniers, as well as to extremists of the right and left.

A number of universities clearly made mistakes in responding to student attempts to cancel academics and visiting speakers with whom they disagreed. I recall at least one vice-chancellor admitting in a private conversation the mistakes that he had made in responding to conflicting pressures. But it is not the first time that university administrations have made mistakes in responding to student protests—this is not new. I have been on both sides of student protests and staff responses since the 1960s, with changing political crises and student generations protesting on South African apartheid, Vietnam, civil rights and race inequalities, fossil fuel investments and tuition fees.

Previous British Governments had wisely left it largely to universities as autonomous bodies to moderate intolerant demands and teach their students—and some of their staff—to disagree well and respect those with different opinions. Some of today’s student radicals have been determinedly intolerant in defending identity politics, but many on the right have also become determinedly intolerant in their anti-woke crusade.

The question of foreign funding is also difficult and delicate—but also not new. During my time at the London School of Economics, we had an embarrassing controversy over a large Middle East donation, but we later accepted a larger donation from another Middle Eastern ruler, after whom one of the LSE’s buildings is now named. There are potential problems about undue financial dependence on funding from any foreign state, especially if it is a non-democratic state. Can the Minister explain further what the reference in the Statement means when it refers to taking

“more time to consider implementation of the overseas funding measures”?

What sort of consultation with the HE sector is intended, and how long might it take?

The Act as passed was disproportionate in responding to incidents that had failed to respect freedom of speech. It was also disproportionate in the regulatory and financial burdens that it imposed on universities and student unions. I hope that the Minister will reassert that freedom of speech is a principle to be cherished, recognising how difficult that can sometimes be—and it is not a weapon to be used in a Trumpian “war against woke”.

[The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)]

I thank the noble Baroness, Lady Barran, and the noble Lord, Lord Wallace, for their responses to the Statement. I am glad that the noble Baroness welcomed the decisions made by the Government, which, when I addressed the House previously in response to an Urgent Question on this issue, I emphasised would be informed by careful consideration of a difficult and challenging issue. I believe that that is what the Government have undertaken to do.

I also share the noble Baroness’s admiration for those academics, many of whom I have spoken to as part of the consultation that we have done on this, in identifying the challenges in this really difficult area and the need for some of the protections offered by the legislation. I share with them a view that there should be an absolute commitment, which this Government have, to freedom of speech and academic freedom. It was, of course, a Labour Government who first enshrined freedom of expression in law through the Human Rights Act and suggested that higher education must be a space for robust discussion, intellectual rigour and exposure to new ideas. If you go to university, you must be prepared to have your views challenged, to hear contrary opinions and uncomfortable truths, to be prepared to argue for your own beliefs, and to accept that others may hold beliefs that you disagree with. Academics must be allowed to test the truth of the ideas that shape society and participate in a free exchange of ideas, including where that causes shock and discomfort.

The noble Lord is right that those are long-standing principles. However, while they have been long standing and not negotiable, this is a difficult and contested area that has not always had the senior or thoughtful engagement that it needs from university leaders, as the noble Lord concedes. That must change. That is why we gave careful thought to which elements of the legislation were appropriate to be commenced, which areas we thought needed repeal and which needed amendment.

On the complaints system, I was struck by the number of people who argued for the need for a form of redress and by those higher education institutions which argued about the burdensome nature of the tort and the ability for anybody potentially to take complaints under the previous legislation. It was asked why we should distinguish between students and staff. The OIA already has responsibility for considering student complaints and considers some complaints about freedom of speech. It will be much clearer for students to know where to go for any complaints. I am confident that the OIA and the OfS will work closely on complaints that come to them at the same time, as the noble Baroness outlined.

On the change to the complaints system, I have a strong expectation that one of the requirements to consider a complaint will be that it has gone properly through new internal processes that universities either are setting up or will set up. It is therefore appropriate that the responsibility on the OfS for the complaints system should be a power, not a duty, thereby enabling it to choose that the complaints which get to it have the strongest thematic and sector-wide implications.

We have decided not to commence provisions that would impose new duties on student unions, which are neither equipped nor funded to navigate a complex regulatory environment, with all the potential legal and regulatory costs that will entail. Student unions are already regulated by the Charity Commission, and we fully expect them to protect freedom of speech and the higher education providers within which they operate to support their student unions to do so. That is an appropriate balance to ensure that student unions come within the ambit of the spirit of what is happening here.

On whether a JR will pose the same threat of legal action as the tort, a judicial review does not bring with it the threat of damages in most cases, unlike a civil claim. That threat, linked to the tort, caused higher education providers concern about the burdensome nature of the tort and caused them to instruct lawyers earlier. Frankly, we decided that we would rather see tight resources in higher education going to support students and staff rather than to instruct and fund lawyers.

On the point about foreign influence and overseas measures, I thought more of the noble Baroness than to trot out the slur that the timing of this had been influenced by the Chancellor’s visit. She knows that this has been under consideration for much longer than that. This Government are committed to ensuring that our world-leading universities remain free from foreign interference. Providers should expect the OfS to take regulatory action if they allow foreign Governments to interfere in free speech or academic freedom, and it can already request information from providers about overseas arrangements. We are working at pace on the implementation of the foreign influence registration scheme, which will apply to universities across the UK, but we also want to ensure that, as we work carefully on this, we keep open options around the commencement of the overseas funding measures. We will return with more information about our decision on that.

On the timing of the legislation, as the noble Baroness asked, we will come forward with more information in a policy paper on the details of how our proposals will be implemented and legislated for. That will include more information about timing.

19:54

[Baroness Falkner of Margravine (CB)]

My Lords, I declare an interest as chair of the Equality and Human Rights Commission, which is the national human rights institution for Great Britain. Another interest is that we are an intervener on the proposed judicial review. It would not be wise for me to say much on the details of this Statement, but I put on record two things for the House. First, the Minister will know that the public sector equality duty is a fundamental part of the proposed litigation in this area, as well as the Government having a responsibility to have due regard to it. We are the regulator in that regard. I wrote to the Minister on 6 December, seeking an urgent meeting. The Statement says that a wide range of providers were consulted, but we were not, which is why I wrote to her. I also put on record—

[Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)]

My Lords—

[Baroness Falkner of Margravine (CB)]

Forgive me; I will address a point directly to the Minister. I am grateful that we are meeting next week, but we should have been consulted as part of that consultation. I say to the Government Whip that the clerks upstairs have told me that I need to declare these cumbersome interests every time I speak. I do not think it would be fair to the House for me not to declare them and make my points.

[Baroness Anderson of Stoke-on-Trent (Lab)]

I appreciate those clarifications, but I remind your Lordships’ House that this is questions on a Statement, not additional statements.

[Baroness Smith of Malvern (Lab)]

The noble Baroness probably identified the issue in her statement. The engagement of the EHRC in the legal case legitimately made it much more difficult for us to meet during the course of that process. However, as she identified, I have ensured that we can meet as soon as possible afterwards to discuss some of the substantive issues she raised.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I remind noble Lords of my interests in the register and warmly welcome the proportionate way in which the Government are acting and my noble friend’s Statement. Free speech is the lifeblood of a university. This reconsideration of the Act certainly recognises that, but all universities also recognise that they have a duty to instil a culture in which free speech flourishes.

I have two swift questions. First, on the OfS power to consider complaints, how will it ensure that its actions are proportionate? Secondly, on the conditions of regulation, the Statement says:

“The OfS should have room to determine the best way to regulate on a case-by-case basis”.


Will Parliament be consulted in any way on how it regulates?

Finally, I say to the noble Baroness opposite that universities are already putting in place codes of conduct—for example, on freedom of speech—so they are acting already.

[Baroness Fox of Buckley (Non-Afl)]

My Lords—

[Baroness Anderson of Stoke-on-Trent (Lab)]

The Minister has to answer the question.

[Baroness Smith of Malvern (Lab)]

I am looking forward to coming to the noble Baroness, but I will answer this question first.

I thank my noble friend and strongly agree that there is an appropriate role for legislation, as we have identified, and an enormously important role for culture, serious thinking and engagement. That perhaps needs to be focused on as well, particularly by those in leadership positions in higher education such as my noble friend. On the decisions around where the focus for the OfS should be, I put on record my admiration for the work of Dr Arif Ahmed as director of free speech, who will remain in his position. He will be able to work with higher education on some of the positive ways in which institutions can respond through best practice and discussions around identifying where the balance lies in the issues my noble friend raises.

I reiterate that I will come back with the policy paper on some of the other questions my noble friend raises. I very much welcome the fact that universities have begun to take action on developing the codes of practice and on putting in place the academic bodies and committees that will consider some of these very difficult issues around challenges to academic freedom. On the point from the noble Baroness, Lady Barran, about what people should be doing, they should be continuing in a spirit of engagement with those areas of the legislation that we have been clear we are going to commence, and continuing the important work that has started.

[Baroness Garden of Frognal (LD)]

My Lords, when the Government initially halted the legislation, we Liberal Democrats agreed that defending free speech at university was important but that the legislation was unnecessary and overbearing. As the noble Baroness, Lady Royall, just said, free speech is obviously integral to universities. Can the Minister explain what new information came to light that requires the reintroduction of the legislation? Can she also assure us that universities will not be exposed to financial risk as a result of it?

[Baroness Smith of Malvern (Lab)]

It was exactly the position that the noble Baroness has taken that brought us to this conclusion. Freedom of speech and academic freedom are at the heart of what is good and important about our universities, but perhaps there had not been the focus on them that was necessary, particularly at a time of some quite contested ideas and difficult challenges. That was important, but it was too important, frankly, to be left to legislation that, while important in many areas, on occasion looked as if it was more about creating a headline than solving a problem. The burdensome elements of the legislation, particularly around the tort and the requirement to, essentially, lawyer up earlier on, and the impact that may well have had on universities’ decisions and the concerns of vulnerable and minority groups as a result, meant that it was right to pause the commencement of the legislation and find a more pragmatic, balanced and less burdensome way of delivering a nevertheless important objective.

[Lord Lucas (Con)]

My Lords, I very much welcome what the Minister says. I look forward to the legislation when it comes, and to it being effective. Would she take a look at extending the provisions on non-disclosure agreements to free speech issues? Knowing what has happened, what has gone wrong and how it has been solved is a really important part of improving practice, and having that supressed by NDAs does not work. Will she also look at how Clause 16 of the Employment Rights Bill will affect free speech at universities? Will she look at the effect of both of those issues on schools?

[Baroness Smith of Malvern (Lab)]

I will limit myself to the provisions on non-disclosure agreements within this legislation. It is our intention to commence the ban on non-disclosure agreements for staff and students at higher education providers in cases of bullying, harassment and sexual misconduct. The other provisions and requirements will ensure that we do not see a situation where people are being silenced when they actually need to be involved in serious consideration, with the ability to take their concerns externally to a complaints system if they are dissatisfied with what is happening within the institution.

[Lord Mann (Lab)]

The Minister will recall that I advised strongly when she was first appointed that she takes her time to get this right, considering my remit on anti-Semitism, because getting this right is essential. I commend the removal of the tort. I have met every single university leader in this country as part of my remit, and in every discussion I have advised them to de-lawyer the situation and resolve it within the universities.

My question to the Minister is referenced directly in the Statement. The Government still have available a £2 million innovation fund for dealing with anti-Semitism. Would the Minister look very seriously at how some of that fund could be used creatively to spread the good practice on how to have difficult conversations that has been developing over the last year in a number of our universities, so that those who are succeeding in doing that can do more of it and spread their expertise to further types of difficult conversations, and to other universities and beyond?

[Baroness Smith of Malvern (Lab)]

I thank my noble friend for his advice at the point at which we were making the decision and for his ongoing commitment to ensuring we are tackling anti-Semitism widely in higher education. I undertake to consider the use of that element of the £7 million of funding that the Government have made available on anti-Semitism for precisely that purpose.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I welcome back the Higher Education (Freedom of Speech) Act; I never wanted it to go away. I will push the Minister further on one of the points from the noble Baroness, Lady Barran. Can the Minister address those worried free speech societies, debating societies and ordinary students—not student bureaucrats—who feel that the removal of duties on student unions is like “a Machiavellian betrayal”, according to Student AFAF? This is because student unions are often at the vanguard of the really quite vicious hounding of student members; Jewish students have often made this point to me. The Charity Commission just does not cut it.

Finally, will the Minister put to bed this notion that the Act was ever part of a Trumpian war on woke or a hate speech charter? It was a good faith, genuine attempt at tackling spiralling attacks on free speech. We should all view it in that way, even if we disagree on the detail.

[Baroness Smith of Malvern (Lab)]

I hope that is the approach that I have tried to take. With that pragmatic approach, I reiterate that I expect student unions to behave in a way that safeguards and promotes speech and events with which they perhaps as a majority do not agree—that is an important part of the experience of being a student—but to impose on them the same level of burden imposed on the institution itself was unreasonable. That is why we took the decision that we did.

[The Lord Bishop of Manchester]

My Lords, I am grateful for the opportunity to ask questions on this Statement, particularly as the noble Lord, Lord Mann, who is sitting behind me, raised issues of anti-Semitism. In Manchester, where I live among a very large Jewish community, it is an ongoing issue that we are always very sensitive to.

We have heard a lot about free speech, which, unsurprisingly, I am in favour of, and of difficult conversations from the noble Lord, which, again, I am in favour of. But sometimes the language shades over into what can only be called mob intimidation. It is about how we make that distinction between a difficult conversation and people being intimidated by loud, vociferous, angry behaviour that seeks deliberately to make them uncomfortable.

We had a really good session in this House a couple of years ago, looking at an amendment about the rights of protesters near abortion clinics and the rights of women to access those services. I worked with Peers from all sides of the House and we came up with something that commanded massive support in the House and that I hope is proving workable. Can we just get that balance between people’s right to protest—and to speak sometimes a little loudly and emotionally—and not moving over to the point where people intimidate others and prevent them from feeling that can pursue their educational studies?

[Baroness Smith of Malvern (Lab)]

The right reverend Prelate exactly outlines the balance that we need to strike. It is wholly reasonable that students engage in protest. In fact, I engaged in a fair amount of protest with my noble friend Lord Mann during my time as a student. However, it is wholly inappropriate, as the right reverend Prelate says, if that then prevents those with whom you disagree from operating. Where serious thought has been given to this, higher education institutions have managed to find that balance between the right to protest and the requirement that views with which you disagree should not, essentially, be cancelled from campuses.

If we can work on that, and if we can also ensure that we develop that culture that we were talking about earlier, and that ability to recognise that disagreement is an important part of the experience of being in higher education, then we will have made important progress.

[Lord Verdirame (Non-Afl)]

My Lords, I refer to my interests in the register. I very much welcome the Government’s change of direction on this matter. It was reported only a few weeks ago that arms manufacturers were cancelling events at universities because of intimidation and harassment. If arms manufacturers feel compelled to cancel events in universities, one can only imagine what it must be like for a first-year undergraduate who has nonconformist views on questions such as the Middle East conflict or gender. I therefore welcome the Government’s change in direction, but I have concerns about the exclusion of student unions. Do the Government really consider that the objective of the Act can be met if student unions are not fully in scope, given that so much of the intimidation is done through student unions? Related to that, the Statement says:

“Student unions are neither equipped nor funded to navigate such a complex regulatory environment, and they are already regulated by the Charity Commission”.—[Official Report, Commons, 15/1/25; col. 380.]


The Charity Commission and charity law are complex regulatory environments. If they can navigate those, why can they not navigate a piece of legislation on free speech?

[Baroness Smith of Malvern (Lab)]

I think I have made the position with respect to student unions pretty clear. In my discussions with vice-chancellors, they recognise their responsibility under the legislation to work with student unions to make sure that the type of intimidation that the noble Lord and others have talked about does not happen. Once again, we have found a pragmatic approach to ensuring progress on this issue, and I think the balance is right.

[Baroness Falkner of Margravine (CB)]

My Lords, first, the Minister indicated to the House that she would be publishing guidance or regulations fairly shortly, so will this be available before the newer deadline for judicial review, which I think is July 2025? Secondly, I think I understood her to say that the reason she did not engage with the Equality and Human Rights Commission was that we were an intervener in the JR. I would like to put on record for the House that the decision to intervene happened only around 10 December. There was a period between July, when the Act was paused, and 10 December or thereabouts, when we would have been delighted to engage with her on the profound points of the public sector equality duty, as well as that of Article 10 on the right to freedom of expression.

[Baroness Smith of Malvern (Lab)]

What I said was that we would bring forward a policy paper to outline how we were going to put in place the decisions that we have made on this. I am sorry if the noble Baroness thinks that there has not been sufficient engagement with her. All I can say is that there has been very widespread engagement with a whole range of stakeholders —probably a majority of whom supported the Act and quite a few of whom supported the totality of the Act, alongside those who actually would have preferred us to have completely repealed it. I hope and believe that what we have done is to appropriately listen and to find a responsible way through.

Data (Use and Access) Bill [HL]

Report stage
Tuesday 21st January 2025 Lords Chamber

Report (1st Day) (Continued)

20:14

[The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)]

My Lords, government Amendment 18—

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

I call on the noble Lord, Lord Clement-Jones, to speak to Amendment 17.

Amendment 17

Moved by

[Lord Clement-Jones]

17: Clause 70, page 78, leave out lines 9 to 30
Member’s explanatory statement
This amendment removes powers for the Secretary of State to override primary legislation and modify key aspects of UK data protection law via statutory instrument.

[Lord Clement-Jones (LD)]

I apologise for interrupting the Minister, in what sounded almost like full flow. I am sure that he was so eager to move his amendment.

In moving Amendment 17, I will speak also to Amendment 21. These aim to remove the Secretary of State’s power to override primary legislation and modify key aspects of the UK data protection law via statutory instruments. They are similar to those proposed by me to the previous Government’s Data Protection and Digital Information Bill, which the noble Baroness, Lady Jones of Whitchurch, then in opposition, supported. These relate to Clauses 70(4) and 71(5).

There are a number of reasons to support accepting these amendments. The Delegated Powers and Regulatory Reform Committee has expressed concerns about the broad scope of the Secretary of State’s powers, as it did previously in relation to the DBS scheme. It recommended removing the power from the previous Bill, and in its ninth report it maintains this view for the current Bill. The Constitution Committee has said likewise; I will not read out what it said at the time, but I think all noble Lords know that both committees were pretty much on the same page.

The noble Baroness, Lady Jones, on the previous DPDI Bill, argued that there was no compelling reason for introducing recognised legitimate interests. On these Benches, we agree. The existing framework already allows for data sharing with the public sector and data use for national security, crime detection and safeguarding vulnerable individuals. However, the noble Baroness, in her ministerial capacity, argued that swift changes might be needed—hence the necessity for the Secretary of State’s power. Nevertheless, the DPRRC’s view is that the grounds for the lawful processing of personal data are fundamental and should not be subject to modification by subordinate legislation.

The letter from the Minister, the noble Lord, Lord Vallance, to the Constitution Committee and the DPRRC pretty much reiterates those arguments. I will not go through all of it again, but I note, in closing, that in his letter he said:

“I hope it will reassure the Committee that the power will be used only when necessary and in the public interest”.


He could have come forward with an amendment to that effect at any point in the passage of the Bill, but he has not. I hope that, on reflection—in the light of both committees’ repeated recommendations, the potential threats to individual privacy and data adequacy, and the lack of strong justification for these powers—the Minister will accept these two amendments. I beg to move.

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, I must inform the House that if Amendment 17 is agreed to, I cannot call Amendment 18 for reasons of pre-emption.

[Viscount Camrose (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for raising these significant issues. While I share some of the concerns expressed, I find myself unable—at least for the moment—to offer support for the amendments in their current form.

Amendment 17 seeks to remove the powers granted to the Secretary of State to override primary legislation and to modify aspects of UK data protection law via statutory instrument. I agree with the principle underpinning this amendment: that any changes to data protection law must be subject to appropriate scrutiny. It is essential that parliamentary oversight remains robust and meaningful, particularly when it comes to matters as sensitive and far-reaching as data protection.

However, my hesitation lies in the practical implications of the amendment. While I sympathise with the call for greater transparency, I would welcome more detail on how this oversight mechanism might work in practice. Would it involve enhanced scrutiny procedures or a stronger role for relevant parliamentary committees? I fear that, without this clarity, we risk creating uncertainty in an area that requires, above all, precision and confidence.

The Minister’s Amendment 18 inserts specific protections for children’s personal data into the UK GDPR framework. The Government have rightly emphasised the importance of safeguarding children in the digital age. I commend the intention behind the amendment and agree wholeheartedly that children deserve special protections when it comes to the processing of their personal data.

It is worth noting that this is a government amendment to their own Bill. While Governments amending their own legislation is not unprecedented—the previous Government may have indulged in the practice from time to time—it is a practice that can give rise to questions. I will leave my comments there; obviously it is not ideal, but these things happen.

Finally, Amendment 21, also tabled by the noble Lord, Lord Clement-Jones, mirrors Amendment 17 in seeking to curtail the Secretary of State’s powers to amend primary legislation via statutory instrument. My earlier comments on the importance of parliamentary oversight apply here. As with Amendment 17, I am of course supportive of the principle. The delegation of such significant powers to the Executive should not proceed without robust scrutiny. However, I would appreciate greater clarity on how this proposed mechanism would function in practice. As it stands, I fear that the amendment raises too many questions. If these concerns could be addressed, I would be most grateful.

In conclusion, these amendments raise important points about the balance of power between the Executive and Parliament, as well as the protection of vulnerable individuals in the digital sphere. I look forward to hearing more detail and clarity, so that we can move forward with confidence.

[Lord Vallance of Balham (Lab)]

My Lords, government Amendment 18 is similar to government Amendment 40 in the previous group, which added an express reference to children meriting specific protection to the new ICO duty. This amendment will give further emphasis to the need for the Secretary of State to consider the fact that children merit specific protection when deciding whether to use powers to amend the list of recognised legitimate interests.

Turning to Amendment 17 from the noble Lord, Lord Clement-Jones, I understand the concerns that have been raised about the Secretary of State’s power to add or vary the list of recognised legitimate interests. This amendment seeks to remove the power from the Bill.

In response to some of the earlier comments, including from the committees, I want to make it clear that we have constrained these powers more tightly than they were in the previous data Bill. Before making any changes, the Secretary of State must consider the rights and freedoms of individuals, paying particular attention to children, who may be less aware of the risks associated with data processing. Furthermore, any addition to the list must meet strict criteria, ensuring that it serves a clear and necessary public interest objective as described in Article 23.1 of the UK GDPR.

The Secretary of State is required to consult the Information Commissioner and other stakeholders before making any changes, and any regulations must then undergo the affirmative resolution procedure, guaranteeing parliamentary scrutiny through debates in both Houses. Retaining this regulation-making power would allow the Government to respond quickly if future public interest activities are identified that should be added to the list of recognised legitimate interests. However, the robust safeguards and limitations in Clause 70 will ensure that these powers are used both sparingly and responsibly.

I turn now to Amendment 21. As was set out in Committee, there is already a relevant power in the current Data Protection Act to provide exceptions. We are relocating the existing exemptions, so the current power, so far as it relates to the purpose limitation principle, will no longer be relevant. The power in Clause 71 is intended to take its place. In seeking to reassure noble Lords, I want to reiterate that the power cannot be used for purposes other than the public interest objectives listed in Article 23.1 of the UK GDPR. It is vital that the Government can act quickly to ensure that public interest processing is not blocked. If an exemption is misused, the power will also ensure that action can be swiftly taken to protect data subjects by placing extra safeguards or limitations on it.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for that considered reply. It went into more detail than the letter he sent to the two committees, so I am grateful for that, and it illuminated the situation somewhat. But at the end of the day, the Minister is obviously intent on retaining the regulation-making power.

I thank the noble Viscount, Lord Camrose, for his support—sort of—in principle. I am not quite sure where that fitted; it was post-ministerial language. I think he needs to throw off the shackles of ministerial life and live a little. These habits die hard but in due course, he will come to realise that there are benefits in supporting amendments that do not give too much ministerial power.

Turning to one point of principle—I am not going to press either amendment—it is a worrying trend that both the previous Government and this Government seem intent on simply steamrollering through powers for Secretaries of State in the face of pretty considered comment by House of Lords committees. This trend has been noted, first for skeletal Bills and secondly for Bills that, despite being skeletal, include a lot of regulation-making power for Secretaries of State, and Henry VIII powers. So I just issue a warning that we will keep returning to this theme and we will keep supporting and respecting committees of this House, which spend a great deal of time scrutinising secondary legislation and warning of overweening executive power. In the meantime, I beg leave to withdraw Amendment 17.

Amendment 17 withdrawn.

Amendment 18

Moved by

[Lord Vallance of Balham]

18: Clause 70, page 78, line 23, after “children” insert “merit specific protection with regard to their personal data because they”
Member's explanatory statement
This amendment adds an express reference to children meriting specific protection with regard to their personal data in new paragraph 8(b) of Article 6 of the UK GDPR (lawful processing: recognised legitimate interests). See also the amendment in my name to Clause 90, page 113, line 20.

Amendment 18 agreed.

Schedule 4: Lawfulness of processing: recognised legitimate interests

Amendment 19 not moved.

Clause 71: The purpose limitation

Amendments 20 and 21 not moved.

Amendment 22 not moved.

Clause 75: Fees and reasons for responses to data subjects’ requests about law enforcement processing

Amendment 23 not moved.

Clause 77: Information to be provided to data subjects

Amendment 24

Moved by

[Baroness Harding of Winscombe]

24: Clause 77, page 91, line 16, at end insert—
“(ia) after point (d), insert—“(e) the personal data is from the Open Electoral Register. When personal data from the Open Electoral Register is combined with personal data from other sources to build a profile for direct marketing then transparency obligations must be fulfilled at the point the individual first provides the additional personal data to a data provider. Additional transparency must be provided by organisations using the data for direct marketing via their privacy policy and by including a data notification in a direct mail pack.””

[Baroness Harding of Winscombe (Con)]

My Lords, I will speak to Amendment 24 in my name and in the names of the noble Lords, Lord Clement-Jones and Lord Stevenson, and my noble friend Lord Black of Brentwood, all of whom I want to thank for their support. I also welcome government Amendment 49.

Amendment 24 concerns the use of the open electoral register, an issue we debated last year in considering the Data Protection and Digital Information Bill, and through the course of this Bill. Noble Lords may think this a small, technical and unimportant issue—certainly at this time of the evening. I have taken it on because it is emblematic of the challenge we face in this country in growing our economy.

Everyone wants strong economic growth. We know that the Government do. We know that the Chancellor has been challenging all regulators to come up with ideas to create growth. This is an example of a regulator hampering growth, and we in this House have an opportunity to do something about it. Those of us who have run businesses know that often, it is in the detail of the regulation that the dead hand of the state does its greatest damage. Because each change is very detailed and affects only a tiny part of the economy, the changes get through the bureaucracy unnoticed and quietly stifle growth. This is one of those examples.

20:30

Forgive me at this late hour, but I need to go into the detail. I thank the Minister, his officials and the Bill team for engaging with me between Committee and Report, and the Data & Marketing Association for the briefings I have had. Together, we have narrowed down the area of debate. However, as there is still quite substantial disagreement, I must set out what is quite a technical issue, for which I apologise. The sharing of publicly available data sources with the private sector to achieve economic growth and improve productivity and public services has been well established for decades. Data sources such as the open electoral register, the register of companies, the register of judgments, orders and fines, the land registry and the Food Standards Agency register have been successfully shared for decades —long before the digital era and long before the current Government’s priority of increasing the sharing of public sector data with the private sector to achieve benefits for the nation.

All these data sources are established by law and governed under strict regulations clearly identifying the uses to which they can be put and the notifications that must be made to individuals. The open electoral register is by far the most important and was always intended for use in direct marketing. Use of the OER for direct marketing is a well-known and well-understood use of personal data that has operated with limited harm and almost no complaint for over 40 years. That is why this amendment is strictly limited to the use of the OER. It is designed to enable direct marketing companies to continue to use the OER data to undertake direct marketing activity, as they have done for many decades.

Direct marketing firms believe that they will no longer be able to use this OER data to conduct direct marketing campaigns unless they contact all citizens on the OER to tell them in advance that they are about to use the OER data. This may seem crazy. I do not think that any consumer is asking for more unsolicited letters or emails that are not targeted at them but simply warn them that their data is about to be used. But do not worry—this will not happen. It makes using the OER unaffordable and means that instead, the direct marketing companies will be withdrawing their products from the market, which is the opposite of the economic growth we are looking for. I am afraid that this is not fanciful. One company has already told me that unless it receives reassurance via this Bill or directly from the ICO, it will cease using OER data in the next couple of months.

In Committee, the Minister, the noble Baroness, Lady Jones of Whitchurch, was clear that using OER data on its own would not require prior notification; so far, so good. However, she was less reassuring where OER data is combined with any other data; she implied that notification of intended use would then be required. Let me give your Lordships a practical example. I think this means that, if I want to send direct marketing to everyone in a particular postcode area who is in the open electoral register, that is fine. However, if I want to combine the OER data with additional data—for example, telling me who in that area likes jazz music, in order to market a jazz concert at the local music venue—I would in theory have to pre-notify that I intend to combine the OER data with the additional data to create a tailored campaign. That is before I actually send the direct marketing. It is really hard to see how that is good for anyone. It does not seem to be proportionate. While you could argue that it increases transparency, in practice it will mean that people receive more untargeted communication or, worse, a very strange communication about potential communication. I can see I am losing my audience already.

My amendment seeks to make explicit what good direct marketing best practice actually is in terms of transparency and proportionality. If a direct marketing provider combines open electoral register data with other data in order to create a piece of targeted direct marketing, they must fulfil their transparency obligations when they first acquire the non-OER personal data, so that consumers can exercise their data rights over that data as well as the OER data. They must be further transparent that they are combining data from the OER with other data sources, via their privacy policy and by including a data notification in their direct mail pack. This would enable the consumer to know what is being done with their data and who to contact should they wish to exercise their other data rights, but not to be bombarded with notifications without receiving any direct marketing. It would also allow direct marketing companies to continue to make use of the OER in producing targeted direct marketing campaigns for clients, as they have been doing for decades.

I know that the Government are concerned about ensuring transparency. The right to transparency in the processing of personal data is fundamental and foundational to GDPR. It is essential to affording data subject autonomy and to achieving the purpose of the GDPR: that a person should have control of their own personal data. Most importantly, it is critical in establishing trust between an organisation and its customers—the most critical component of brand loyalty and economic success. The importance of transparency is not in dispute. The point I am making is that transparency already exists in the system, in the way the system has operated for many decades: by companies adhering to the best practice I have just set out. Officials working on the Bill team have been very generous with their time, but I have not, to date, been able to discuss these issues with the ICO.

It is possible that the Government and the ICO believe that the current processes are not transparent enough—that perhaps it is not clear to the general public that when they consent to their data remaining on the open electoral register, it is likely to be combined with other data in order to create the targeted marketing campaigns we know consumers want. I am not aware of any evidence of that, but if there is, I would argue that the right approach to resolving this is to improve the privacy notices that local authorities place on the open electoral register, which are inconsistent and over which the industry does not actually have any control. This would be a substantially lower cost and more efficient way of meeting the principles of transparency.

If the Minister is unable to accept my simple amendment, will he ask the ICO to develop, in collaboration with the Data & Marketing Association, detailed guidance for local authorities to improve their privacy notices, and detailed guidance for direct marketing firms that clarifies that the processes set out in my amendment constitute an acceptable and proportionate means of complying with transparency obligations under GDPR?

In conclusion, as important as transparency is, another fundamental principle of data protection is proportionality. Proportionality is an overarching principle of GDPR—indeed, of all data protection legislation. My amendment is necessary because the regulator’s approach to transparency in the use of data from the open electoral register for direct marketing purposes is disproportionate, taking into account the high levels of existing transparency, the benefits of the processing and the individual’s desire, because they have opted in to the OER, to actually receive relevant and tailored direct marketing.

I apologise again for all the detail, but this is how we create economic growth: by preventing regulators stifling activity such as this. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I do not think the noble Baroness, Lady Harding, lost the audience at all; she made an excellent case. Before speaking in support of the noble Baroness, I should say, “Blink, and you lose a whole group of amendments”. We seem to have completely lost sight of the group starting with Amendment 19—I know the noble Lord, Lord Holmes, is not here—and including Amendments 23, 74 and government Amendment 76, which seems to have been overlooked. I suggest that we degroup next week and come back to Amendments 74 and 76. I do not know what will happen to Amendment 23; I am sure there is a cunning plan on the Opposition Front Bench to reinstate that in some shape or form. I just thought I would gently point that out, since we are speeding along and forgetting some of the very valuable amendments that have been tabled.

I very much support, as I did in Committee, what the noble Baroness, Lady Harding, said about Amendment 24, which aims to clarify the use of open electoral register data for direct marketing. The core issue is the interpretation of Article 14 of the GDPR, specifically regarding the disproportionate effort exemption. The current interpretation, influenced by recent tribunal rulings, suggests that companies using open electoral register—OER—data would need to notify every individual whose data is used, even if they have not opted out. As the noble Baroness, Lady Harding, implied, notifying millions of individuals who have not opted out is unnecessary and burdensome. Citizens are generally aware of the OER system, and those who do not opt out reasonably expect to receive direct marketing materials. The current interpretation leads to excessive, unhelpful notifications.

There are issues about financial viability. Requiring individual notifications for the entire OER would be financially prohibitive for companies, potentially leading them to cease using the register altogether. On respect for citizens’ choice, around 37% of voters choose not to opt out of OER use for direct marketing, indicating their consent to such use. The amendment upholds this choice by exempting companies from notifying those individuals, which aligns with the GDPR’s principle of respecting data subject consent.

On clarity and certainty, Amendment 24 provides clear exemptions for OER data use, offering legal certainty for companies while maintaining data privacy and adequacy. This addresses the concerns about those very important tribunal rulings creating ambiguity and potentially disrupting legitimate data use. In essence, Amendment 24 seeks to reconcile the use of OER data for direct marketing with the principles of transparency and data subject rights. On that basis, we on these Benches support it.

I turn to my amendment, which seeks a soft opt-in for charities. As we discussed in Committee, a soft opt-in in Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 allows organisations to send electronic mail marketing to existing customers without their consent, provided that the communication is for similar products and services and the messages include an “unsubscribe” link. The soft opt-in currently does not apply to non-commercial organisations such as charities and membership organisations. The Data & Marketing Association estimates that extending the soft opt-in to charities would

“increase … annual donations in the UK by £290 million”.

Extending the soft opt-in as proposed in both the Minister’s and my amendment would provide charities with a level playing field, as businesses have enjoyed this benefit since the introduction of the Privacy and Electronic Communications Regulations. Charities across the UK support this change. For example, the CEO of Mind stated:

“Mind’s ability to reach people who care about mental health is vital. We cannot deliver life changing mental health services without the financial support we receive from the public”.


Oxfam’s individual engagement director noted:

“It’s now time to finally level the playing field for charities too and to allow them to similarly engage their passionate and committed audiences”.


Topically, too, this amendment is crucial to help charities overcome the financial challenges they face due to the cost of living crisis and the recent increase in employer national insurance contributions. So I am delighted, as I know many other charities will be, that the Government have proposed Amendment 49, which achieves the same effect as my Amendment 50.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I declare an interest that my younger daughter works for a charity which will rely heavily on the amendments that have just been discussed by the noble Lord, Lord Clement-Jones.

I want to explain that my support for the amendment moved by the noble Baroness, Lady Harding, was not inspired by any quid pro quo for earlier support elsewhere —certainly not. Looking through the information she had provided, and thinking about the issue and what she said in her speech today, it seemed there was an obvious injustice happening. It seemed wrong, in a period when we were trying to support growth, that we cannot see our way through it. It was in that spirit that I suggested we should push on with it and bring it back on Report, and I am very happy to support it.

[Lord Davies of Brixton (Lab)]

I do not want to try the patience of the House at this late hour. I am unhappy about Clause 77 as a whole. Had I had the opportunity, we could have debated it in Committee; unfortunately, I was double-booked, so was unable. Now we are on Report, which does not really provide a platform for discussing the exclusion of the clause.

However, the noble Baroness has provided an opportunity for me to make the point that combining data is the weak point, the point at which we lose control. For that reason, I am unhappy about this amendment. We need to keep high levels of vigilance with regard to the ability to take data from one area and apply it in another, because that is when personal privacy disappears.

20:45

[Viscount Camrose (Con)]

My Lords, as we reach the end of this important group, I thank particularly my noble friend Lady Harding for her contribution and detailed account of some of the issues being faced, which I found both interesting and valuable. I thought the example about the jazz concert requiring the combination of those different types of data was very illuminating. These proposed changes provide us the opportunity to carefully balance economic growth with the fundamental right to data privacy, ensuring that the Bill serves all stakeholders fairly.

Amendment 24 introduces a significant consideration regarding the use of the open electoral register for direct marketing purposes. The proposal to include data from the OER, combined with personal data from other sources, to build marketing profiles creates a range of issues that require careful consideration.

Amendment 24 stipulates that transparency obligations must be fulfilled when individuals provide additional data to a data provider, and that this transparency should be reflected both in the privacy policy and via a data notification in a direct mail pack. While there is certainly potential to use the OER to enhance marketing efforts and support economic activity, we have to remain vigilant to the privacy implications. We need to make sure that individuals are informed of how and where their OER data is being processed, especially when it is combined with other data sources to build profiles.

The requirement for transparency is a positive step, but it is essential that these obligations are fully enforced and that individuals are not left in the dark about how their personal information is being used. I hope the Minister will explain a little more about how these transparency obligations will be implemented in practice and whether additional safeguards are proposed.

Amendment 49 introduces a change to Regulation 22, creating an exception for charities to use electronic mail for direct marketing in specific circumstances. This amendment enables charities to send direct marketing emails when the sole purpose is to further one or more of their charitable purposes, provided that certain conditions are met. These conditions include that the charity obtained the recipient’s contact details when the individual expressed interest in the charity or offered previous support for the charity. This provision recognises the role of charities in fundraising and that their need to communicate with volunteers, supporters or potential donors is vital for their work.

However, I understand the argument that we must ensure that the use of email marketing does not become intrusive or exploitative. The amendment requires that recipients are clearly informed about their right to refuse future marketing communications and that this option is available both when the data is first collected and with every subsequent communication. This helps strike the right balance between enabling charities to raise funds for their causes and protecting individuals from unwanted marketing.

I welcome the Government’s commitment to ensuring that charities continue to engage with their supporters while respecting individuals’ right to privacy. However, it is essential that these safeguards are robustly enforced to prevent exploitation. Again, I look forward to hearing from the Minister on how the Government plan to ensure that their provisions will be properly implemented and monitored.

Amendment 50 introduces the concept of soft opt-ins for email marketing by charities, allowing them to connect with individuals who have previously expressed interest in their charitable causes. This can help charities maintain and grow their supporter base but, again, we must strike the right balance with the broader impact this could have on people in receipt of this correspondence. It is crucial that any system put in place respects individuals’ right to privacy and their ability to opt out easily. We must ensure that charities provide a clear, simple and accessible way for individuals to refuse future communications, and that this option is consistently available.

Finally, we should also consider the rules governing the use of personal data by political parties. This is, of course, an area where we must ensure that transparency, accountability and privacy are paramount. Political parties, like any other organisation, must be held to the highest standards in their handling of personal data. I hope the Government can offer some clear guidance on improving and strengthening the rules surrounding data use by political parties to ensure that individuals’ rights are fully respected and protected.

[Lord Vallance of Balham (Lab)]

My Lords, I now turn to government Amendment 49. I thank the noble Lord, Lord Clement-Jones, and other noble Lords for raising the concerns of the charity sector during earlier debates. The Government have also heard from charities and trade associations directly.

This amendment will permit charities to send marketing material—for example, promoting campaigns or fundraising activities—to people who have previously expressed an interest in their charitable purposes, without seeking express consent. Charities will have to provide individuals with a simple means of opting out of receiving direct marketing when their contact details are collected and with every subsequent message sent. The current soft opt-in rule for marketing products and services has similar requirements.

Turning to Amendment 24, I am grateful to the noble Baroness, Lady Harding, for our discussions on this matter. As was said in the debate in Grand Committee, the Government are committed to upholding the principles of transparency. I will try to outline some of that.

I understand that this amendment is about data brokers buying data from the open electoral register and combining it with data they have collected from other sources to build profiles on individuals with the intention of selling them for marketing. Despite what was said in the last debate on this, I am not convinced that all individuals registering on the open electoral register would reasonably expect this kind of profiling or invisible processing using their personal data. If individuals are unaware of the processing, this undermines their ability to exercise their other rights, such as to object to the processing. That point was well made by the noble Lord, Lord Davies.

With regard to the open electoral register, the Government absolutely agree that there are potential benefits to society through its use—indeed, economic growth has been mentioned. Notification is not necessary in all cases. There is, for example, an exemption if notifying the data subject would involve a disproportionate effort and the data was not collected directly from them. The impact on the data subject must be considered when assessing whether the effort is disproportionate. If notification is proportionate, the controller must notify.

The ICO considers that the use and sale of open electoral register data alone is unlikely to require notification. As was set out in Committee, the Government believe that controllers should continue to assess on a case-by-case basis whether cases meet the conditions for the existing disproportionate effort exemption. Moreover, I hope I can reassure the noble Baroness that in the event that the data subject already has the information—from another controller, for example—another exemption from notification applies.

The Government therefore do not see a case for a new exemption for this activity, but as requested by the noble Baroness, Lady Harding, I would be happy to facilitate further engagement between the industry and the ICO to improve a common understanding of how available exemptions are to be applied on a case-by-case basis. I understand that the ICO will use the Bill as an opportunity to take stock of how its guidance can address particular issues that organisations face.

Amendment 50, tabled by the noble Lord, Lord Clement-Jones, seeks to achieve a very similar thing to the government amendment and we studied it when designing our amendment. The key difference is that the government amendment defines which organisations can rely on the new measure and for what purposes, drawing on definitions of “charity” and “charitable purpose” in relevant charities legislation.

I trust that the noble Lord will be content with this government amendment and feel content to not to press his own.

[Baroness Harding of Winscombe (Con)]

Before the Minister sits down, can I follow up and ask a question about invisible processing? I wonder whether he considers that a better way of addressing potential concerns about invisible processing is improving the privacy notices when people originally sign up for the open electoral register. That would mean making it clear how your data could be used when you say you are happy to be on the open electoral register, rather than creating extra work and potentially confusing communication with people after that. Can the Minister confirm that that would be in scope of potential options and further discussions with the ICO?

[Lord Vallance of Balham (Lab)]

The further discussions with the ICO are exactly to try to get to these points about the right way to do it. It is important that people know what they are signing up for, and it is equally important that they are aware that they can withdraw at any point. Those points obviously need to be discussed with the industry to make sure that everyone is clear about the rules.

[Baroness Harding of Winscombe (Con)]

I thank noble Lords for having humoured me in the detail of this debate. I am very pleased to hear that response from the Minister and look forward to ongoing discussions with the ICO and the companies involved. As such, I beg leave to withdraw my amendment.

Amendment 24 withdrawn.

Amendment 25 not moved.

Clause 80: Automated decision-making

Amendment 26

Moved by

[Viscount Camrose]

26: Clause 80, page 94, line 24, at end insert—
“3. When an automated decision-making process involves artificial intelligence (AI), the AI programme must have due regard for the following principles—(a) safety, security, and robustness;(b) appropriate transparency and explainability;(c) fairness;(d) accountability and governance;(e) contestability and redress.”Member's explanatory statement
This amendment inserts the five principles from the “A pro-innovation approach to AI regulation” White Paper, ensuring AI programmes used in automated decision making have due regards for safety, security, robustness, appropriate transparency and explainability, fairness, accountability and governance, and contestability and redress.

[Viscount Camrose (Con)]

My Lords, I rise to speak to Amendments 26, 31 and 32 tabled in my name and that of my noble friend Lord Markham. I will address the amendments in reverse order.

Amendment 32 would ensure that, where a significant decision is taken by ADM, the data subject was able to request intervention by a human with sufficient competency and authority. While that is clearly the existing intent of the ADM provisions in the Bill, this amendment brings further clarity. I am concerned that, where data processors update their ADM procedures in the light of this Bill, it should be abundantly clear to them at every stage what the requirements are and that, as currently written, there may be a risk of misunderstanding. Given the significance of decisions that may be made by ADM, we should make sure this does not happen. Data subjects must have recourse to a person who both understands their problem and is able to do something about it. I look forward to hearing the Minister’s views on this.

Amendment 31 would require the Secretary of State to provide guidance on how consent should be obtained for ADM involving special category data. It would also ensure that this guidance was readily available and reviewed frequently. The amendment would provide guidance for data controllers who wish to use ADM, helping them to set clear processes for obtaining consent, thus avoiding complaints and potential litigation.

We all know that litigation can be slow, disruptive and sometimes prohibitively expensive. If we want to encourage the use of ADM so that customers and businesses can save both time and money, we should seek to ensure that the sector does not become a hotbed of litigation. The risk can be mitigated by providing ample guidance for the sector. For relatively minimal effort on the part of the Secretary of State, we may be able to facilitate substantial growth in the use and benefits of ADM. I would be most curious to hear the Minister’s opinions on this matter and, indeed, the opinions of noble Lords more broadly.

Amendment 26 would insert the five principles set out in the AI White Paper published by the previous Government, requiring all data controllers and processors who partake in AI-driven ADM to have due regard for them. In the event that noble Lords are not familiar with these principles, they are: safety, security and robustness; appropriate transparency and explainability; fairness; accountability and governance; and contestability and redress.

These principles for safe AI are based on those originally developed with the OECD and have been the subject of extensive consultation. They have been refined and very positively received by developers, public sector organisations, private sector organisations and civil society. They offer real, and popular, safeguards against the risks of AI while continuing to foster innovation.

21:00

The risks posed by AI go far beyond data protection. Although the data protection principles covered in the Bill have significant overlap with the AI principles, it is possible, as the Bill stands, for ADM activities to adhere to data protection principles but violate the AI principles. Since, at this point, we know little of the Government’s planned AI legislation—I understand it to be focused on the activities of the main AI labs—for a great proportion of AI activity before that Bill is passed, and possibly after, the ADM provisions in this Bill may represent the entirety of our AI-specific laws in this country.

I should add that prescriptive regulation for AI is extremely challenging, as the technology is evolving at an astonishing rate; what may regulate the specifics of LLMs today may come to look like regulations for Betamax videocassettes tomorrow. Principles have a timeless and adaptive quality. That is why it will be so valuable to have them set out in the Bill. This is not a prescriptive approach; it is one that specifies the outcomes we want and gives agency to those best placed to bring them to fruition.

I strongly commend this amendment to the House, and I am minded to test the opinion of the House.

[Lord Clement-Jones (LD)]

My Lords, I will speak to Amendments 28, 29, 33, 34 and 36. I give notice that I will only speak formally to Amendment 33. For some reason, it seems to have escaped this group and jumped into the next one.

As we discussed in Committee, and indeed on its previous versions, the Bill removes the general prohibition on solely automated decisions and places the responsibility on individuals to enforce their rights rather than on companies to demonstrate why automation is permissible. The Bill also amends Article 22 of the GDPR so that protection against solely automated decision-making applies only to decisions made using sensitive data such as race, religion and health data. This means that decisions based on other personal data, such as postcode, nationality, sex or gender, would be subject to weaker safeguards, increasing the risk of unfair or discriminatory outcomes. This will allow more decisions with potentially significant impacts to be made without human oversight, even if they do not involve sensitive data. This represents a significant weakening of existing protection against unsafe automated decision-making. That is why I tabled Amendment 33 to leave out the whole clause.

However, the Bill replaces the existing Article 22 with Articles 22A to 22D, which redefine automated decisions and allow for solely automated decision-making in a broader range of circumstances. This change raises concerns about transparency and the ability of individuals to challenge automated decisions. Individuals may not be notified about the use of ADM, making it difficult to exercise their rights. Moreover, the Bill’s safeguards for automated decisions, particularly in the context of law enforcement, are weaker compared with the protections offered by the existing Article 22. This raises serious concerns about the potential for infringement of people’s rights and liberties in areas such as policing, where the use of sensitive data in ADM could become more prevalent. Additionally, the lack of clear requirements for personalised explanations about how ADM systems reach decisions further limits individuals’ understanding of and ability to challenge outcomes.

In the view of these Benches, the Bill significantly weakens safeguards around ADM, creates legal uncertainty due to vague definitions, increases the risk of discrimination, and limits transparency and redress for individuals—ultimately undermining public trust in the use of these technologies. I retabled Amendments 28, 29, 33 and 34 from Committee to address continuing concerns regarding these systems. The Bill lacks clear definitions of crucial terms such as “meaningful human involvement” and, similarly, “significant effect”, which are essential for determining the scope of protection. That lack of clarity could lead to varying interpretations and inconsistencies in application, creating legal uncertainty for individuals and organisations.

In Committee, the noble Baroness, Lady Jones, emphasised the Government’s commitment to responsible ADM and argued against defining meaningful human involvement in the Bill, but instead for allowing the Secretary of State to define those terms through delegated legislation. However, that raises concerns about transparency and parliamentary oversight, as these are significant policy decisions. Predominantly automated decision-making should be included in Clause 80, as in Amendment 28, as a decision may lack meaningful human involvement and significantly impact individuals’ rights. The assertion by the noble Baroness, Lady Jones, that predominantly automated decisions inherently involve meaningful human oversight can be contested, particularly given the lack of a clear definition of such involvement in the Bill.

There are concerns that changes in the Bill will increase the risk of discrimination, especially for marginalised groups. The noble Baroness, Lady Jones, asserted in Committee that the data protection framework already requires adherence to the Equality Act. However, that is not enough to prevent algorithmic bias and discrimination in ADM systems. There is a need for mandatory bias assessments of all ADM systems, particularly those used in the public sector, as well as for greater transparency in how those systems are developed and deployed.

We have not returned to the fray on the ATRS, but it is clear that a statutory framework for the ATRS is necessary to ensure its effectiveness and build trust in public sector AI. Despite the assurance by the noble Baroness, Lady Jones, that the ATRS is mandatory for government departments, its implementation relies on a cross-government policy mandate that lacks statutory backing and may prove insufficient to ensure the consistent and transparent use of algorithmic tools.

My Amendment 34 seeks to establish requirements for public sector organisations using ADM systems. Its aim is to ensure transparency and accountability in the use of these systems by requiring public authorities to publish details of the systems they use, including the purpose of the system, the data used and any mitigating measures to address risks. I very much welcome Amendment 35 from the noble Baroness, Lady Freeman, which would improve it considerably and which I have also signed. Will the ATRS do as good a job as that amendment?

Concerns persist about the accessibility and effectiveness of this mechanism for individuals seeking redress against potentially harmful automated decisions. A more streamlined and user-friendly process for challenging automated decisions is needed in the in the age of increasing ADM. The lack of clarity and specific provisions in the Bill raises concerns about its effectiveness in mitigating the risks posed by automated systems, particularly in safeguarding vulnerable groups such as children.

My Amendment 36 would require the Secretary of State to produce a definition of “meaningful human involvement” in ADM in collaboration with the Information Commissioner’s Office, or to clearly set out their reasoning as to why that is not required within six months of the Act passing. The amendment is aimed at addressing the ambiguity surrounding “meaningful human involvement” and ensuring that there is a clear understanding of what constitutes appropriate human oversight in ADM processes.

I am pleased that the Minister has promised a code of practice, but what assurance can he give regarding the forthcoming ICO code of practice about automated decision-making? How will it provide clear guidance on how to implement and interpret the safeguards for ADM, and will it address the definition of meaningful human involvement? What forms of redress will it require to be established? What level of transparency will be required? A code of conduct offered by the Minister would be acceptable, provided that the Secretary of State did not have the sole right to determine the definition of meaningful human involvement. I therefore hope that my Amendment 29 will be accepted alongside Amendment 36, because it is important that the definition of such a crucial term should be developed independently, and with the appropriate expertise, to ensure that ADM systems are used fairly and responsibly, and that individual rights are adequately protected.

Amendments 31 and 32 from the Opposition Front Bench seem to me to have considerable merit, particularly Amendment 32, in terms of the nature of the human intervention. However, I confess to some bafflement as to the reasons for Amendment 26, which seeks to insert the OECD principles set out in the AI White Paper. Indeed, they were the G20 principles as well and are fully supportable in the context of an AI Bill, for instance, and I very much hope that will form Clause 1 of a new AI Bill going forward. I am not going to go into great detail, but I wonder whether those principles are already effectively addressed in data protection legislation. If we are not careful, we are going to find a very confused regulator in these circumstances. So, although there is much to commend the principles as such, whether they are a practical proposition in a Bill of this nature is rather moot.

[Baroness Freeman of Steventon (CB)]

My Lords, I support Amendment 34 from the noble Lord, Lord Clement-Jones, and will speak to my own Amendment 35, which amends it. When an algorithm is being used to make important decisions about our lives, it is vital that everyone is aware of what it is doing and what data it is based on. On Amendment 34, I know from having had responsibility for algorithmic decision support tools that users are very interested in how recent the data it is based on is, and how relevant it is to them. Was the algorithm derived from a population that included people who share their characteristics? Subsection (1)(c)(ii) of the new clause proposed in Amendment 34 refers to regular assessment of the data used by the system. I would hope that this would be part of the meaningful explanation to individuals to be prescribed by the Secretary of State in subsection (1)(b).

Amendment 35 would add to this that it is vital that all users and procurers of such a system understand its real-world efficacy. I use the word “efficacy” rather than “accuracy” because it might be difficult to define accuracy with regard to some of these systems. The procurer of any ADM system should want to know how accurate it is using realistic testing, and users should also be aware of those findings. Does the system give the same outcome as a human assessor 95% or 60% of the time? Is that the same for all kinds of queries, or is it more accurate for some groups of people than others? The efficacy is really one of the most important aspects and should be public. I have added an extra line that ensures that this declaration of efficacy would be kept updated. One would hope that the performance of any such system would be monitored anyway, but this ensures that the outcomes of such monitoring are in the public domain.

In Committee, the Minister advised us to wait for publication of the algorithmic transparency records that were released in December. Looking at them, I think they make clear the much greater need for guidance and stringency in what should be mandated. I will give two short examples from those records. For the DBT: Find Exporters algorithm, under “Model performance” it merely says that it uses Brier scoring and other methods, without giving any actual results of that testing to indicate how well it performs. It suggests looking at the GitHub pages. I followed that link, and it did not allow me in. The public have no access to those pages. This is why these performance declarations need to be mandated and forced to be in the public domain.

In the second example, the Cambridgeshire trial of an externally supplied object detection system just cites the company’s test data, claiming average precision in a “testing environment” of 43.5%. This does not give the user a lot of information. Again, it links to GitHub pages produced by the supplier. Admittedly, this is a trial, so perhaps the Cambridgeshire Partnership will update it with its real-world trial data. But that is why we need to ensure annual updates of performance data and ensure that that data is not just a report of the supplier’s claims in a test environment.

The current model of algorithmic transparency records is demonstrably not fit for purpose, and these provisions would help put them on a much firmer footing. These systems, after all, are making life-changing decisions for all of us and we all need to be sure how well they are doing and put appropriate levels of trust in them accordingly.

[Viscount Colville of Culross (CB)]

My Lords, I have added my name to Amendment 36 tabled by the noble Lord, Lord Clement-Jones. I also support Amendments 26, 27, 28, 31, 32 and 35. The Government, in their AI Statement last week, said that ADM will be rolled out across the public sector in the coming months and years. It will increase productivity and provide better public services to the people of this country.

However, there are many people who are fearful of their details being taken by an advanced computer, and a decision which could affect their lives being made by that computer. Surely the days of “computer says no” must be over. People need to know that there is a possibility of a human being involved in the process, particularly when dealing with the public sector. I am afraid that my own interactions with public sector software in various government departments have not always been happy ones, and I have been grateful to be able to appeal to a human.

21:15

When it comes to safe decisions being made by public bodies, safety, transparency and trust must be supreme. Without these assurances, the rollout of ADM across the public sector will flounder. Amendment 36 would allow the Secretary of State to define what meaningful human involvement in these decisions means. I ask the Minister to go further and lay out for your Lordships’ House what might be the defining aspects of human involvement, and put on the record for the House the positive aspects of human involvement.

My slight concern with this amendment is that allowing the Government to define human involvement could allow the definition to be watered down. My fear, and that of many civic institutions involved in this new era of AI, is that it could become a tick-box exercise. The questions which need answering are whether the definition of human involvement will require the involvement of a human who has the competence to understand how the decision has been made and the authority to review and respond to the decision, and the transparency for the data subject to be able to appeal a decision.

If the House can be given reassurance along these lines, the Minister will go a long way towards allaying the fears of many people in this country. In the process, it would help the rollout of AI across the public sector.

[Lord Lucas (Con)]

My Lords, I support what the noble Baroness, Lady Freeman, said. Her maiden speech was a forewarning of how good her subsequent speeches would be and how dedicated she is to openness, which is absolutely crucial in this area. We are going to have to get used to a lot of automatic processes and come to consider that they are by and large fair. Unless we are able to challenge it, understand it and see that it has been properly looked after, we are not going to develop that degree of trust in it.

Anyone who has used current AI programs will know about the capacity of AI for hallucination. The noble Lord, Lord Clement-Jones, uses them a lot. I have been looking, with the noble Lord, Lord Saatchi, at how we could use them in this House to deal with the huge information flows we have and to help us understand the depths of some of the bigger problems and challenges we are asked to get a grip on. But AI can just invent things, leaping at an answer that is easier to find, ignoring two-thirds of the evidence and not understanding the difference between reliable and unreliable witnesses.

There is so much potential, but there is so much that needs to be done to make AI something we can comfortably rely on. The only way to get there is to be absolutely open and allow and encourage challenge. The direction pointed out by the noble Lord, Lord Clement-Jones, and, most particularly by the noble Baroness, Lady Freeman, is one that I very much think we should follow.

[Baroness Kidron (CB)]

My Lords, I will very briefly speak to Amendment 30 in my name. Curiously, it was in the name of the noble Viscount, Lord Camrose, in Committee, but somehow it has jumped.

On the whole, I have always advocated for age-appropriate solutions. The amendment refers to preventing children consenting to special category data being used in automated decision-making, simply because there are some things that children should not be able to consent to.

I am not sure that this exact amendment is the answer. I hope that the previous conversation that we had before the dinner break will produce some thought about this issue—about how automatic decision-making affects children specifically—and we can deal with it in a slightly different way.

While I am on my feet, I want to say that I was very struck by the words of my noble friend Lady Freeman, particularly about efficacy. I have seen so many things that have purported to work in clinical conditions that have failed to work in the complexity of real life, and I want to associate myself with her words and, indeed, the amendments in her name and that of the noble Lord, Lord Clement-Jones.

[Lord Vallance of Balham (Lab)]

I start with Amendment 26, tabled by the noble Viscount, Lord Camrose. As he said in Committee, a principles-based approach ensures that our rules remain fit in the face of fast-evolving technologies by avoiding being overly prescriptive. The data protection framework achieves this by requiring organisations to apply data protection principles when personal data is processed, regardless of the technology used.

I agree with the principles that are present for AI, which are useful in the context in which they were put together, but introducing separate principles for AI could cause confusion around how data protection principles are interpreted when using other technologies. I note the comment that there is a significant overlap between the principles, and the comment from the noble Viscount that there are situations in which one would catch things and another would not. I am unable to see what those particular examples are, and I hope that the noble Viscount will agree with the Government’s rationale for seeking to protect the framework’s technology-neutral set of principles, rather than having two separate sets.

Amendment 28 from the noble Lord, Lord Clement-Jones, would extend the existing safeguards for decisions based on solely automated processing to decisions based on predominantly automated processing. These safeguards protect people when there is no meaningful human involvement in the decision-making. The introduction of predominantly automated decision-making, which already includes meaningful human involvement—and I shall say a bit more about that in a minute—could create uncertainty over when the safeguards are required. This may deter controllers from using automated systems that have significant benefits for individuals and society at large. However, the Government agree with the noble Viscount on strengthening the protections for individuals, which is why we have introduced a definition for solely automated decision-making as one which lacks “meaningful human involvement”.

I thank noble Lords for Amendments 29 and 36 and the important points raised in Committee on the definition of “meaningful human involvement”. This terminology, introduced in the Bill, goes beyond the current UK GDPR wording to prevent cursory human involvement being used to rubber stamp decisions as not being solely automated. The point at which human involvement becomes meaningful is context specific, which is why we have not sought to be prescriptive in the Bill. The ICO sets out in its guidance its interpretation that meaningful human involvement must be active: someone must review the decision and have the discretion to alter it before the decision is applied. The Government’s introduction of “meaningful” into primary legislation does not change this definition, and we are supportive of the ICO’s guidance in this space.

As such, the Government agree on the importance of the ICO continuing to provide its views on the interpretation of terms used in the legislation. Our reforms do not remove the ICO’s ability to do this, or to advise Parliament or the Government if it considers that the law needs clarification. The Government also acknowledge that there may be a need to provide further legal certainty in future. That is why there are a number of regulation-making powers in Article 22D, including the power to describe meaningful human involvement or to add additional safeguards. These could be used, for example, to impose a timeline on controllers to provide human intervention upon the request of the data subject, if evidence suggested that this was not happening in a timely manner following implementation of these reforms. Any regulations must follow consultation with the ICO.

Amendment 30 from the noble Baroness, Lady Kidron, would prevent law enforcement agencies seeking the consent of a young person to the processing of their special category or sensitive personal data when using automated decision-making. I thank her for this amendment and agree about the importance of protecting the sensitive personal data of children and young adults. We believe that automated decision-making will continue to be rarely deployed in the context of law enforcement decision-making as a whole.

Likewise, consent is rarely used as a lawful basis for processing by law enforcement agencies, which are far more likely to process personal data for the performance of a task, such as questioning a suspect or gathering evidence, as part of a law enforcement process. Where consent is needed—for example, when asking a victim for fingerprints or something else—noble Lords will be aware that Clause 69 clearly defines consent under the law enforcement regime as

“freely given, specific, informed and unambiguous”

and

“as easy … to withdraw … as to give”.

So the tight restrictions on its use will be crystal clear to law enforcement agencies. In summary, I believe the taking of an automated decision based on a young person’s sensitive personal data, processed with their consent, to be an extremely rare scenario. Even when it happens, the safeguards that apply to all sensitive processing will still apply.

I thank the noble Viscount, Lord Camrose, for Amendments 31 and 32. Amendment 31 would require the Secretary of State to publish guidance specifying how law enforcement agencies should go about obtaining the consent of the data subject to process their data. To reiterate a point made by my noble friend Lady Jones in Committee, Clause 69 already provides a definition of “consent” and sets out the conditions for its use; they apply to all processing under the law enforcement regime, not just automated decision-making, so the Government believe this amendment is unnecessary.

Amendment 32 would require the person reviewing an automated decision to have sufficient competence and authority to amend the decision if required. In Committee, the noble Viscount also expressed the view that a person should be “suitably qualified”. Of course, I agree with him on that. However, as my noble friend Lady Jones said in Committee, the Information Commissioner’s Office has already issued guidance which makes it clear that the individual who reconsiders an automated decision must have the “authority and competence” to change it. Consequently, the Government do not feel that it is necessary to add further restrictions in the Bill as to the type of person who can carry out such a review.

The noble Baroness, Lady Freeman, raised extremely important points about the performance of automated decision-making. The Government already provide a range of products, but A Blueprint for Modern Digital Government, laid this morning, makes it clear that part of the new digital centre’s role will be to offer specialist insurance support, including, importantly in relation to this debate,

“a service to rigorously test models and products before release”.

That function will be in place and available to departments.

On Amendments 34 and 35, my noble friend Lady Jones previously advised the noble Lord, Lord Clement-Jones, that the Government would publish new algorithmic transparency recording standard records imminently. I am pleased to say that 14 new records were published on 17 December, with more to follow. I accept that these are not yet in the state in which we would wish them to be. Where these amendments seek to ensure that the efficacy of such systems is evaluated, A Blueprint for Modern Digital Government, as I have said, makes it clear that part of the digital centre’s role will be to offer such support, including this service. I hope that this provides reassurance.

[Lord Clement-Jones (LD)]

My Lords, before the Minister sits down, I was given considerable assurance between Committee and Report that a code of practice, drawn up with the ICO, would be quite detailed in how it set out the requirements for those engaging in automated decision-making. The Minister seems to have given some kind of assurance that it is possible that the ICO will come forward with the appropriate provisions, but he has not really given any detail as to what that might consist of and whether that might meet some of the considerations that have been raised in Committee and on Report, not least Amendments 34 and 35, which have just been discussed as if the ATRS was going to cover all of that. Of course, any code would no doubt cover both the public and private sectors. What more can the Minister say about the kind of code that would be expected? We seem to be in somewhat of a limbo in this respect.

[Lord Vallance of Balham (Lab)]

I apologise; I meant to deal with this at the end. I think I am dealing with the code in the next group.

[Lord Clement-Jones (LD)]

Well, that is something to look forward to.

21:30

[Baroness Freeman of Steventon (CB)]

Before the Minister sits down, he said that there will be evaluations of the efficacy of these systems but he did not mention whether those will have to be made public. Can he give me any assurance on that?

[Lord Vallance of Balham (Lab)]

There is a requirement. Going back to the issue of principles, which was discussed earlier on, one of the existing principles—which I am now trying to locate and cannot—is transparency. I expect that we would make as much of the information public as we can in order to ensure good decision-making and assure people as to how the decisions have been reached.

[Viscount Camrose (Con)]

I thank all noble Lords and the Minister for their comments and contributions to what has been a fascinating debate. I will start by commenting on the other amendments in this group before turning to those in my name.

First, on Amendments 28 and 29, I am rather more comfortable with the arrangements for meaningful human intervention set out in the Bill than the noble Lord, Lord Clement-Jones. For me, either a decision has meaningful human intervention or it does not. In the latter case, certain additional rights kick in. To me, that binary model is clear and straightforward, and could only be damaged by introducing some of the more analogue concepts such as “predominantly”, “principally”, “mainly” or “wholly”, so I am perfectly comfortable with that as it is.

However, I recognise that puts a lot of weight on to the precise meaning of “meaningful human involvement”. Amendment 36 in the name of the noble Lord, Lord Clement-Jones, which would require the Secretary of State to produce a definition of “meaningful human involvement” in ADM in collaboration with the ICO, seems to take on some value in those circumstances, so I am certainly more supportive of that one.

As for Amendments 34 and 35 in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Freeman, I absolutely recognise the value and potential of efficacy; I agree it is a very valuable term. I have more faith in the rollout and use of the ATRS but on a non-statutory basis, believing, as I do, that this would allow it to continue to develop in an agile and adaptive manner. I welcome the Minister’s words on this subject, and for now I remain comfortable that the ATRS is the direction forward for that.

I turn to the amendments in my name. I thank all noble Lords and, indeed, the Minister for their comments and contributions regarding Amendments 31 and 32. I very much take the Minister’s point that definitions of consent feature elsewhere in the Bill. That reduces my concern somewhat.

However, I continue to strongly commend Amendment 26 to the House. I believe it will foster innovation while protecting data rights. It is popular with the public and with private sector stakeholders. It will bring about outcomes that we all want to see in AI safety without stifling this new and exciting technology. In the absence of an AI Bill—and possibly even in the presence of one—it is the only AI-specific legislation that will be around. It is important somehow to get those AI principles in the Bill, at least until an AI Bill comes along. With this in mind, I wish to test the opinion of the House.

21:34

Division 5

Ayes: 79

Noes: 112

21:44

Amendments 27 to 32 not moved.

Amendment 33

Moved by

[Lord Clement-Jones]

33: Leave out Clause 80
Member's explanatory statement
This is a probing amendment intended to elicit assurances from the Minister regarding the forthcoming ICO code of practice about automated decision-making.

[Lord Clement-Jones (LD)]

My Lords, we have waited with bated breath for the Minister to share his hand, and I very much hope that he will reveal the nature of his bountiful offer of a code of practice on the use of automated decision-making.

I will wear it as a badge of pride to be accused of introducing an analogue concept by the noble Viscount, Lord Camrose. I am still keen to see the word “predominantly” inserted into the Bill in reference to automated decision-making.

As the Minister can see, there is considerable unhappiness with the nature of Clause 80. There is a view that it does not sufficiently protect the citizen in the face of automated decision-making, so I hope that he will be able to elaborate further on the nature of those protections.

I will not steal any of the thunder of the noble Baroness, Lady Kidron. For some unaccountable reason, Amendment 33 is grouped with Amendment 41. The groupings on this Bill have been rather peculiar and at this time of night I do not think any long speeches are in order, but it is important that we at least have some debate about the importance of a code of conduct for the use of AI in education, because it is something that a great many people in the education sector believe is necessary. I beg to move.

[Baroness Kidron (CB)]

My Lords, I shall speak to Amendment 41 in my name and in the names of my noble friend Lord Russell, the noble Baroness, Lady Harding, and the noble Lord, Lord Clement-Jones. The House can be forgiven if it is sensing a bit of déjà-vu, since I have proposed this clause once or twice before. However, since Committee, a couple of things have happened that make the argument for the code more urgent. We have now heard that the Prime Minister thinks that regulating AI is “leaning out” when we should be, as the tech industry likes to say, leaning in. We have had Matt Clifford’s review, which does not mention children even once. In the meantime, we have seen rollout of AI in almost all products and services that children use. In one of the companies—a household name that I will not mention—an employee was so concerned that they rang me to say that nothing had been checked except whether the platform would fall over.

Amendment 41 does not seek to solve what is a global issue of an industry arrogantly flying a little too close to the sun and it does not grasp how we could use this extraordinary technology and put it to use for humankind on a more equitable basis than the current extractive and winner-takes-all model; it is far more modest than that. It simply says that products and services that engage with kids should undertake a mandatory process that considers their specific vulnerabilities related to age. I want to stress this point. When we talk about AI, increasingly we imagine the spectre of diagnostic benefits or the multiple uses of generative models, but of course AI is not new nor confined to these uses. It is all around us and, in particular, it is all around children.

In 2021, Amazon’s AI voice assistant, Alexa, instructed a 10 year-old to touch a live electrical plug with a coin. Last year, Snapchat’s My AI gave adult researchers posing as a 13 year-old girl tips on how to lose her virginity with a 31 year-old. Researchers were also able to obtain tips on how to hide the smell of alcohol and weed and how to conceal Snapchat conversations from their parents. Meanwhile, character.ai is being sued by the mother of a 14 year-old boy in Florida who died by suicide after becoming emotionally attached to a companion bot that encouraged him to commit suicide.

In these cases, the companies in question responded by implementing safety measures after the fact, but how many children have to put their fingers in electrical sockets, injure themselves, take their own lives and so on before we say that those measures should be mandatory? That is all that the proposed code does. It asks that companies consider the ways in which their products may impact on children and, having considered them, take steps to mitigate known risk and put procedures in place to deal with emerging risks.

One of the frustrating things about being an advocate for children in the digital world is how much time I spend articulating avoidable harms. The sorts of solutions that come after the event, or suggestions that we ban children from products and services, take away from the fact that the vast majority of products and services could, with a little forethought, be places of education, entertainment and personal growth for children. However, children are by definition not fully mature, which puts them at risk. They chat with smart speakers, disclosing details that grown-ups might consider private. One study found that three to six year-olds believed that smart speakers have thoughts, feelings and social abilities and are more reliable than human beings when it came to answering fact-based questions.

I ask the Minister: should we ban children from the kitchen or living room in which the smart speaker lives, or demand, as we do of every other product and service, minimum standards of product safety based on the broad principle that we have a collective obligation to the safety and well-being of children? An AI code is not a stretch for the Bill. It is a bare minimum.

[Baroness Harding of Winscombe (Con)]

My Lords, I will speak very briefly, given the hour, just to reinforce three things that I have said as the wingman to the noble Baroness, Lady Kidron, many times, sadly, in this Chamber in child safety debates. The age-appropriate design code that we worked on together and which she championed a decade ago has driven real change. So we have evidence that setting in place codes of conduct that require technology companies to think in advance about the potential harms of their technologies genuinely drives change. That is point one.

Point two is that we all know that AI is a foundational technology which is already transforming the services that our children use. So we should be applying that same principle that was so hard fought 10 years ago for non-AI digital to this foundational technology. We know that, however well meaning, technology companies’ development stacks are always contended. They always have more good things that they think they can do to improve their products for their consumers, that will make them money, than they have the resources to do. However much money they have, they just are contended. That is the nature of technology businesses. This means that they never get to the safety-by-design issues unless they are required to. It was no different 150 or 200 years ago as electricity was rolling through the factories of the mill towns in the north of England. It required health and safety legislation. AI requires health and safety legislation. You start with codes of conduct and then you move forward, and I really do not think that we can wait.

[Viscount Camrose (Con)]

My Lords, Amendment 41 aims to establish a code of practice for the use of children’s data in the development of AI technologies. In the face of rapidly advancing AI, it is, of course, crucial that we ensure children’s data is handled with the utmost care, prioritising their best interests and fundamental rights. We agree that AI systems that are likely to impact children should be designed to be safe and ethical by default. This code of practice will be instrumental in guiding data controllers to ensure that AI development and deployment reflect the specific needs and vulnerabilities of children.

However, although we support the intent behind the amendment, we have concerns, which echo concerns on amendments in a previous group, about the explicit reference to the UN Convention on the Rights of the Child and general comment 25. I will not rehearse my comments from earlier groups, except to say that it is so important that we do not have these explicit links to international frameworks, important as they are, in UK legislation.

In the light of this, although we firmly support the overall aim of safeguarding children’s data in AI, we believe this can be achieved more effectively by focusing on UK legal principles and ensuring that the code of practice is rooted in our domestic context.

[Lord Vallance of Balham (Lab)]

I thank the noble Lord, Lord Clement-Jones, for Amendment 33, and the noble Baroness, Lady Kidron, for Amendment 41, and for their thoughtful comments on AI and automated decision-making throughout this Bill’s passage.

The Government have carefully considered these issues and agree that there is a need for greater guidance. I am pleased to say that we are committing to use our powers under the Data Protection Act to require the ICO to produce a code of practice on AI and solely automated decision-making through secondary legislation. This code will support controllers in complying with their data protection obligations through practical guidance. I reiterate that the Government are committed to this work as an early priority, following the Bill receiving Royal Assent. The secondary legislation will have to be approved by both Houses of Parliament, which means it will be scrutinised by Peers and parliamentarians.

I can also reassure the noble Baroness that the code of practice will include guidance about protecting data subjects, including children. The new ICO duties set out in the Bill will ensure that where children’s interests are relevant to any activity the ICO is carrying out, it should consider the specific protection of children. This includes when preparing codes of practice, such as the one the Government are committing to in this area.

I understand that noble Lords will be keen to discuss the specific contents of the code. The ICO, as the independent data protection regulator, will have views as to the scope of the code and the topics it should cover. We should allow it time to develop those thoughts. The Government are also committed to engaging with noble Lords and other stakeholders after Royal Assent to make sure that we get this right. I hope noble Lords will agree that working closely together to prepare the secondary legislation to request this code is the right approach instead of pre-empting the exact scope.

The noble Lord, Lord Clement-Jones, mentioned edtech. I should add—I am getting into a habit now—that it is discussed in a future group.

[Baroness Kidron (CB)]

Before the Minister sits down, I welcome his words, which are absolutely what we want to hear. I understand that the ICO is an independent regulator, but it is often the case that the scope and some of Parliament’s concerns are delivered to it from this House—or, indeed, from the other place. I wonder whether we could find an opportunity to make sure that the ICO hears Parliament’s wish on the scope of the children’s code, at least. I am sure the noble Lord, Lord Clement-Jones, will say similar on his own behalf.

[Lord Vallance of Balham (Lab)]

It will be clear to the ICO from the amendments that have been tabled and my comments that there is an expectation that it should take into account the discussion we have had on this Bill.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his very considered response. In the same way as the noble Baroness, Lady Kidron, I take it that, effectively, the Minister is pledging to engage directly with us and others about the nature and contents of the code, and that the ICO will also engage on that. As the Minister knows, the definition of terms such as meaningful human engagement is something that we will wish to discuss and consider in the course of that engagement. I hope that the AI edtech code will also be part of that.

I thank the Minister. I know he has had to think about this quite carefully during the Bill’s passage. Currently, Clause 80 is probably the weakest link in the Bill, and this amendment would go some considerable way towards repairing it. My final question is not to the Minister, but to the Opposition: what on earth have they got against the UN? In the meantime, I beg leave to withdraw my amendment.

Amendment 33 withdrawn.

Amendment 34 not moved.

Amendment 36 not moved.

22:00

Amendment 37

Moved by

[Lord Clement-Jones]

37: After Clause 84, insert the following new Clause—
“Impact of this Act and other developments at national and international level on EU data adequacy decisionBefore the European Union’s reassessment of data adequacy in June 2025, the Secretary of State must carry out an assessment of the likely impact on the European Union data adequacy decisions relating to the United Kingdom of the following—(a) this Act;(b) other changes to the United Kingdom’s domestic frameworks which are relevant to the matters listed in Article 45(2) of the UK GDPR (transfers on the basis of an adequacy decision);(c) relevant changes to the United Kingdom’s international commitments or other obligations arising from legally binding conventions or instruments, as well as from its participation in multilateral or regional systems, in particular in relation to the protection of personal data.”Member's explanatory statement
This amendment requires the Secretary of State to carry out an assessment of the impact of this Act and other changes to the UK’s domestic and international frameworks relating to data adequacy.

[Lord Clement-Jones (LD)]

My Lords, Amendment 37 is on the subject of data adequacy, which has been a consistent issue throughout the passage of the Bill. The mechanism put forward in the amendment would review the question of data adequacy.

Safeguarding data adequacy is crucial for the UK’s economy and international partnerships. Losing data adequacy status would impose significant costs and administrative burdens on businesses and public sector organisations that share data between the UK and the EU. It would also hinder international trade and economic co-operation, and trust in the UK’s digital economy, contradicting the Government’s objective of economic growth. I hope very much that the Government are proactively engaging with the European Commission to ensure a smooth adequacy renewal process this year.

Early engagement and reassurance about the retention of adequacy status are of crucial importance, given the looming deadline of June this year. This includes explaining and providing reassurance regarding any planned data protection reforms, particularly concerning the independence of the Information Commissioner’s Office, ministerial powers to add new grounds—for instance, recognised legitimate interest for data processing —and the new provisions relating to automated decision-making.

Despite assurances from the noble Baroness, Lady Jones, that the proposed changes will not dilute data subjects’ rights or threaten EU adequacy, proactive engagement with the EU and robust safeguards are necessary to ensure the continued free flow of data while maintaining high data protection standards. The emphasis on proportionality as a safeguard against the dilution of data subjects’ rights, as echoed by the noble Baroness, Lady Jones, and the ICO, is insufficient. The lack of a clear definition of proportionality within the context of data subjects’ rights could provide loopholes for controllers and undermine the essential equivalence required for data adequacy. The Bill’s reliance on the ICO’s interpretation of proportionality without explicit legislative clarity could be perceived as inadequate by the European Commission, particularly in areas such as web scraping for AI training.

The reassurance that the Government are taking data adequacy seriously and are committing to engaging with the EU needs to be substantiated by concrete actions. The Government do not, it appears, disclose assessments and reports relating to the compatibility of the UK’s domestic data protection framework with the Council of Europe’s Convention 108+, and that raises further concerns about transparency and accountability. Access to this information would enable scrutiny and informed debate, ultimately contributing to building trust and ensuring compatibility with international data protection standards.

In conclusion, while the Government maintain that this Bill would not jeopardise data adequacy, the concerns raised by myself and others during its passage mean that I continue to believe that a comprehensive review of EU data adequacy, as proposed in Amendment 37, is essential to ensure the continued free flow of data, while upholding high data protection standards and maintaining the UK’s position as a trusted partner in international data exchange. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

I have added my name to this amendment, about which the noble Lord, Lord Clement-Jones, has spoken so eloquently, because of the importance to our economic growth of maintaining data adequacy with the EU. I have two points to add to what he said.

First, as I said and observed on some occasions in Committee, this is legislation of unbelievable complexity. It is a bad read, except if you want a cure for insomnia. Secondly, it has the technique of amending and reamending earlier legislation. Thirdly, this is not the time to go into detail of the legal problems that arise, some of which we canvassed in Committee, as to whether this legislation has no holes in it. I do not think I would be doing any favours either to the position of the United Kingdom or to those who have been patient enough to stay and listen to this part of the debate by going into any of those in any detail, particularly those involving the European Convention on Human Rights and the fundamental charter. That is my first point, on the inherent nature of the legislative structure that we have created. As I said earlier, I very much hope we will never have such legislation again.

Secondly, in my experience, there is a tendency among lawyers steeped in an area or department often to feel, “Well, we know it’s all right; we built it. The legislation’s fine”. Therefore, there is an additional and important safeguard that I think we should adopt, which is for a fresh pair of eyes, someone outside the department or outside those who have created the legislation, to look at it again to see whether there are any holes in it. We cannot afford to go into this most important assessment of data adequacy without ensuring that our tackle is in order. I appreciate what the Minister said on the last occasion in Committee—it is for the EU to pick holes in it—but the only prudent course when dealing with anything of this complexity in a legal dispute or potential dispute is to ensure that your own tackle is in order and not to go into a debate about something without being sure of that, allowing the other side to make all the running. We should be on top of this and that is why I very much support this amendment.

[Viscount Camrose (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones—as ever—and the noble and learned Lord, Lord Thomas, for tabling Amendment 37 in their names. It would introduce a new clause that would require the Secretary of State to carry out an impact assessment of this Act and other changes to the UK’s domestic and international frameworks relating to data adequacy before the European Union’s reassessment of data adequacy in June this year.

I completely understand the concerns behind tabling this amendment. In the very worst-case scenario, of a complete loss of data adequacy in the assessment by the EU, the effect on many businesses and industries in this country would be knocking at the door of catastrophic. It cannot be allowed to happen.

However, introducing a requirement to assess the impact of the Bill on the European Union data adequacy decision requires us to speculate on EU intentions in a public document, which runs the risk of prompting changes on its part or revealing our hand to it in ways that we would rather not do. It is important that we do two things: understand our risk, without necessarily publishing it publicly; and continue to engage at ministerial and official level, as I know we are doing intensively. I think the approach set out in this amendment runs the risk of being counterproductive.

[Lord Vallance of Balham (Lab)]

I thank the noble Lord, Lord Clement-Jones, for his amendment, and the noble and learned Lord, Lord Thomas, for his contribution. I agree with them on the value and importance placed on maintaining our data adequacy decisions from the EU this year. That is a priority for the Government, and I reassure those here that we carefully considered all measures in the light of the EU’s review of our adequacy status when designing the Bill.

The Secretary of State wrote to the House of Lords European Affairs Committee on 20 November 2024 on this very point and I would be happy to share this letter with noble Lords if that would be helpful. The letter sets out the importance this Government place on renewal of our EU adequacy decisions and the action we are taking to support this process.

It is important to recognise that the EU undertakes its review of its decisions for the UK in a unilateral, objective and independent way. As the DSIT Secretary of State referenced in his appearance before the Select Committee on 3 December, it is important that we acknowledge the technical nature of the assessments. For that reason, we respect the EU’s discretion about how it manages its adequacy processes. I echo some of the points made by the noble Viscount, Lord Camrose.

That being said, I reassure noble Lords that the UK Government are doing all they can to support a swift renewal of our adequacy status in both technical preparations and active engagement. The Secretary of State met the previous EU Commissioner twice last year to discuss the importance of personal data sharing between the UK and EU. He has also written to the new Commissioner for Justice responsible for the EU’s review and looks forward to meeting Commissioner McGrath soon.

I also reassure noble Lords that DSIT and the Home Office have dedicated teams that have been undertaking preparations ahead of this review, working across government as needed. Those teams are supporting European Commission officials with the technical assessment as required. UK officials have met with the European Commission four times since the introduction of the Bill, with future meetings already in the pipeline.

[Lord Clement-Jones (LD)]

My Lords, the noble and learned Lord, Lord Thomas, whose intervention I very much appreciated, particularly at this time of the evening, talked about a fresh pair of eyes. What kind of reassurance can the Minister give on that?

[Lord Vallance of Balham (Lab)]

It is worth remembering that the ultimate decision is with the EU Commission and we are quite keen to have its eyes on it now, which is why we are engaging with it very carefully. It is looking at it as we are going through it—we are talking to it and we have dedicated teams of people brought together specifically to do this. There are several people from outside the direct construct of the Bill who are looking at this to make sure that we have adequacy and are having very direct conversations with the EU to ensure that that process is proceeding as we would wish it to.

[Lord Clement-Jones (LD)]

I thank the Minister for his response. It would be very reassuring if it was our own fresh pair of eyes rather than across the North Sea. That is all I can say as far as that is concerned. I appreciate what he said—that the Government are taking this seriously. It is a continuing concern precisely because the chair of the European Affairs Committee wrote to the Government. It is a continuing issue for those of us observing the passage of the Bill and we will continue to keep our eyes on it as we go forward. I very much hope that June 2025 passes without incident and that the Minister’s predictions are correct. In the meantime, I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Consideration on Report adjourned.

House adjourned at 10.14 pm.