House of Lords
Introduction: Lord Young of Acton
Introduction: Lord Biggar
Young Disabled People: Social Care Services
(2 days, 11 hours ago)
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Baroness Monckton of Dallington Forest
To ask His Majesty’s Government what plans they have to address demand for support from young, disabled people and their families, particularly in relation to provision of social care services, as they transition to adulthood.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, the Government recognise the difficulties that young disabled people and their families can face when they transition into adult social care. This has been a neglected area, which is why the Department of Health and Social Care is now working across government to identify opportunities to better support young people and their families at this crucial stage in their lives. My ministerial colleague, the Minister for Care, Stephen Kinnock, has recently met his counterpart at the Department for Education to discuss how the two departments can make progress on this issue.
Baroness Monckton of Dallington Forest (Con)
My Lords, for many people with learning disabilities, transition into adulthood is purely chronological. Their needs and care requirements remain exactly the same. Parents have described this transition into post-18 services as like jumping off a cliff.
I was approached by the parents of Cameron, a young man with severe learning disabilities. Melanie, his mother, was a nurse for 30 years, and his father, David, was a Royal Marine commando who fought in three wars. Their professional life serving the community and their country has not prepared them for the battle they are facing with Somerset Council to get the right accommodation for their son. Melanie told me that the day he turned 18, all support fell away. Will the Minister accept that these are the same people, with the same condition and the same continuing needs, and that, as part of adult social care reform, there needs to be a separate category for people with learning disabilities, who are so neglected? In this spirit, would His Majesty’s Government consider a Minister for learning disabilities?
Baroness Merron (Lab)
I understand and am sympathetic to the points that the noble Baroness makes about Cameron and his family. I listened very closely to the concerns that she raised. As I mentioned in my Answer, we are very aware and absolutely accept that the services are not in the places they need to be. That is why I made the commitment to work closely with the relevant department.
Looking to the future, as recently as November we published what I regard as a very ambitious and wide-ranging whole-system plan, called Keeping Children Safe, Helping Families Thrive. It seeks to break the cycle of crisis intervention and to rebalance the system back towards earlier help for families, which I hope would have been helpful in the situation the noble Baroness describes. All local authorities, including Somerset, have to set out the support available for those with special educational needs and disabilities as they move into adulthood.
Baroness Walmsley (LD)
My Lords, the duty of local authorities to carry out a transition assessment includes whether the child, or their carer, is likely to have needs for care and support after the child in question becomes 18. In the light of that, what resources and guidance are the Government giving to local authorities about the needs of the carers of those transitioning to adulthood? Does the complexity of this whole issue not indicate the need for care co-ordination?
Baroness Merron (Lab)
It certainly does. The noble Baroness has been positive about the plans that we have for the independent commission, led by the noble Baroness, Lady Casey, to resolve once and for all, on a cross-party basis, adult social care. The noble Baroness makes a very good point about the role of carers. Indeed, when we think of a young carer particularly, it is crucial that their needs are considered and that support is given. It is part of the whole way in which we support someone who needs social care, no matter what their age.
Lord Laming (CB)
My Lords, when the Public Services Committee took evidence on the transitional arrangements for young people with disabilities, we experienced two extremes in that evidence. One was that the transfer from education services to social care services was badly handled in a lot of authorities. As the noble Baroness, Lady Monckton, said, it felt like falling off a cliff, with young people then described as unemployable. The second, which was quite inspiring, was where local authorities had established a local hub where employers could meet these young people. They discovered there things that could benefit both sides, and that the young people blossomed in work. Will the Minister do everything possible to encourage the second?
Baroness Merron (Lab)
The noble Lord is correct to reference the committee’s findings. People should not be written off as unable to work. It is about getting the right support in place, with the right provisions and at the right time. I certainly share his view. That is why we are working across government to achieve the very thing that he talks about.
Baroness Pitkeathley (Lab)
My Lords, I was with someone this morning who has a son at this stage and was told that the earliest time when they could have a transition interview would be December 2026. In the meantime, the only support they are getting is from the local branch of Mencap. As well as co-operation between health and social care, will the Government commit to supporting the voluntary sector, which provides such important services in this regard?
Baroness Merron (Lab)
I have direct experience of the value of charities such as Mencap, and I thank it and all the other third sector organisations involved. I agree with my noble friend about the need to incorporate all sectors. That is the only way that we will provide the right provision in a timely fashion.
Lord Kamall (Con)
My Lords, we know it is true not only for this care service but for many health and care services that there is often concern when, upon reaching adulthood, the patient has to move from paediatric care to adult services—we have had a number of debates on that in this House. Often, that can involve a change of medical staff, from a clinician or caseworker who knows the patient to someone who is a stranger, as it were. Can the Minister tell noble Lords what guidance there is for the clinician or the health worker looking after the child, as well as for the clinician who will be looking after the child when they are an adult, whereby they talk to each other to ensure as smooth a transition as possible?
Baroness Merron (Lab)
The transition assessment has to cover the whole range of provision, including healthcare, as the noble Lord rightly says. That is already embedded. I refer back to the point of my noble friend: it is indeed true that there are long waiting lists for transition assessments, which is far from ideal. This means that people are suffering from late planning and insufficient support, which we want to put right, no matter where the requirement comes from, whether it is in health, education or employment.
Lord Alton of Liverpool (CB)
The Minister may recall that, in 2022, the Down Syndrome Act was passed by your Lordships’ House, having been introduced in another place by Sir Liam Fox MP and in this House by my noble friend Lady Hollins. Can the Minister tell us how far we have got in implementing the terms of that Act, especially in helping those with Down syndrome to find employment in the workplace?
Baroness Merron (Lab)
It is a good point. I will be pleased to look into it in greater detail and write to the noble Lord.
Baroness Uddin (Non-Afl)
My Lords, I had not intended to speak but I want to reach out to the noble Baroness, Lady Monckton, as I understand her frustration and why she is upset. I declare an interest as a mother of a child in this situation—he is now an adult, at 46 years old. That is precisely what happened to my family and my son; the service was no longer fit for purpose. There are hundreds and thousands of parents feeling exactly the same angst. Will the Minister’s review therefore build in space for advocacy on behalf of parents in any forward-looking strategy that the Government are considering?
Baroness Merron (Lab)
The role of advocacy is extremely important. I take on board what the noble Baroness is saying.
Baroness Bull (CB)
My Lords, can the Minister say what the Government are doing to persuade employers of the value of employing a diverse workforce, including those with learning disabilities?
Baroness Merron (Lab)
I would be pleased to get some specific detail, but I agree with the noble Baroness—there are huge benefits both ways, as was said earlier. We are keen to promote and support this, to get as many people into employment as possible, and to let employers benefit. I will gladly write to the noble Baroness.
Community Pharmacy Closures
(2 days, 11 hours ago)
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Baroness Bakewell of Hardington Mandeville
To ask His Majesty’s Government what plans they have to prevent community pharmacy closures.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, the Government recognise that pharmacies are integral to the fabric of our communities. They provide an easily accessible front door to the NHS and are staffed by highly trained and skilled healthcare professionals. We have now recommenced the consultation with Community Pharmacy England on funding arrangements, which was not able to be concluded before the general election.
Baroness Bakewell of Hardington Mandeville (LD)
I thank the Minister for her response. Since 2017, there has been a net loss of 1,200 pharmacies in England, with 35% of closures occurring in 20% of the most deprived areas. The annual funding shortfall in England stands in excess of £100,000 per pharmacy—a rise from £67,000 since 2023. Between September 2022 and June 2024, the annual loss of pharmacy access was 3.4 million hours. Given this, does the Minister believe that pharmacies are in a healthy state to support the Pharmacy First service?
Baroness Merron (Lab)
Some 98% of pharmacies are signed up to Pharmacy First and I am glad about how it is developing. On the noble Baroness’s very real points, the majority of recent closures were the result of large pharmacy chains optimising their portfolios. As she is aware, community pharmacies are private businesses, although they earn most their income from the NHS. Those business models vary significantly.
Local authorities are required to undertake a pharmaceutical needs assessment every three years to assess whether the population is being served. Integrated care boards have to give regard to those needs assessments when they review applications from new contractors and seek to fill any gaps. This continues to be work in progress to which we must be alert, but it is also important to look at some of the reasons for the closures.
Lord Fowler (CB)
My Lords, is it not true that we have not used community pharmacies in this country to their full potential? That impression was confirmed for me when I was chairman of such a group. Should our policy not be to develop community pharmacies so that they make an even bigger contribution to public health in this country? Would it not be better if pharmacists’ income came from that kind of effort, rather than from asking them to rely on the sale of cosmetics and other over the counter, commercial products?
Baroness Merron (Lab)
Commercial over the counter products will have a part to play. However, I take the point that the noble Lord makes. I am sure it is true that their vital role, and the opportunities that they offer, were not exploited as much as they could have been—when I say “exploited”, I mean that in a positive way. The Minister for Care, Stephen Kinnock, issued a press release today. In his last point he says:
“I am committed to working closely with Community Pharmacy England to agree a package of funding that is reflective of the important support that they provide to patients up and down the country. I am confident that together we can get the sector back on its feet and fit for pharmacies and patients long into the future”.
Baroness Winterton of Doncaster (Lab)
My Lords, the Government are on the right track in recognising the role that community pharmacists can play in public health by preventing illness and reducing the number of people turning up at A&E. However, is my noble friend the Minister aware of reports that some GPs have been unwilling to direct patients to community pharmacists, even under the Pharmacy First programme? Will she look at whether further action is needed to ensure that GPs work with community pharmacists to deliver services to patients?
Baroness Merron (Lab)
I am aware of the reports that my noble friend refers to. This is a new service; it needs to bed in. NHSE is working closely with ICBs, GPs and the community pharmacy sector to improve referrals. Funding has also been provided to ICBs for primary care network engagement leads, who should be well placed to support GP teams to refer into the service. We are aware of my noble friend’s point; we are acting on it and we will continue to keep it under review.
Lord Lansley (Con)
Further to that important point, will the Government guide ICBs to commission additional services from pharmacies? They have often not been commissioned with a sustainable funding model. Dispensing is not enough. They can provide important preventive services and minor illness services. However, they need the commissioning revenue to enable them to sustain their position.
Baroness Merron (Lab)
That point is understood, which is why I thought it important to bring to your Lordships’ House the announcement in the media release from my ministerial colleague Stephen Kinnock. As I mentioned in answer to an earlier question, integrated care boards have a role to play. They should—in fact, they are required to—have regard to the pharmaceutical needs assessment conducted every three years by local authorities. That ought to identify where there are gaps and allow consideration of how to fill any such gaps.
Baroness Finlay of Llandaff (CB)
My Lords, given the estimate that community pharmacies save some 38 million consultations that would otherwise have been in general practice each year, and the fact that 97% of pharmacy staff report shortages in accessing different medicines as prescribed, how are the Government planning to allow community pharmacies to adjust medicines—as has been recommended by Community Pharmacy England—so that they can modify prescriptions, rather than spend time recontacting the GP when they are themselves familiar with the items?
Baroness Merron (Lab)
The noble Baroness raises a good point and work is continuing to resolve that. It might also be helpful to say that NHS England has commissioned an economic analysis of the cost of providing pharmaceutical services and that will inform future funding arrangements. I say that in answer to the point the noble Baroness made about the potential savings that can accrue if we maximise the role of pharmacies.
Lord Kamall (Con)
My Lords, I understand the point that the Minister made about large chains rationalising their portfolios of premises. Have the Government and the NHS looked into whether the extra money made available to pharmacies from the Pharmacy First programme can make these pharmacies viable where they would not have been before? Secondly, what conversations are NHS England and the department having with retailers, community hubs or, where feasible, GP surgeries to provide local community pharmacy services in partnership with them?
Baroness Merron (Lab)
The economic analysis by NHS England that I just referred to will be helpful in informing where we go next. I confess that I did not get all the detail of the noble Lord’s second point, so I will look at it in Hansard and I will be pleased to write to him.
Baroness Humphreys (LD)
Community pharmacy owners rated medicine supply instability as the most severe pressure their businesses face. This instability puts operational pressures on pharmacies and financial pressures on businesses, and for patients it can mean alarming delays. What measures are the Government taking to address the problems of medicine supply and their impact on hard-pressed community pharmacies?
Baroness Merron (Lab)
I recognise that, as the noble Baroness says, there are some difficulties with the supplies of certain medicines. That has been going on for some time. We are therefore working to ensure that the supply chain is secure and robust and can meet the demands on it, which requires a detailed look. Work will continue, and I look forward to continuing to update your Lordships’ House about that.
Lord Watts (Lab)
My Lords, is it not the case that the present health structures are not suitable for purpose? Do we not need to look at providing health centres that include a pharmacy, dentists, doctors and all other services in one place to get the maximum resources to the public?
Baroness Merron (Lab)
My noble friend will be glad to know that bringing services together under one roof and designing them around the patient is exactly where this Government are going. I ask him to keep an eye out for the 10-year plan, which will address many of the points that he is making.
EU Law
(2 days, 11 hours ago)
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Lord Howard of Rising
To ask His Majesty’s Government whether they have further plans regarding the status of retained EU law.
The Minister of State, Department for Business and Trade and Treasury (Baroness Gustafsson) (Lab)
My Lords, the Retained EU Law (Revocation and Reform) Act 2023 largely removed the special status of REUL at the end of 31 December 2023, and REUL that had not yet been revoked became assimilated law. The third Assimilated Law Parliamentary Report was published on 23 January 2025. It sets out the plans for future use of the REUL Act powers within the context of the Government’s national missions and a commitment to reset relations with the EU.
Lord Howard of Rising (Con)
Does the Minister agree that, while there are arguments for and against being part of the EU, there is no case whatsoever for giving up any benefits of remaining without the benefits of leaving—in particular, freedom from the jurisdiction of the European Court of Justice?
Baroness Gustafsson (Lab)
We are resetting the relationship with our European friends to strengthen ties, secure a broad-based security pact and tackle barriers to trade. We are working with the EU to identify areas where we can strengthen co-operation for mutual benefit, such as the economy, energy security and resilience. There will be issues that are difficult to resolve as well as areas that we will stand firm on, and we have been clear that there will be no return to freedom of movement, to the customs union or to the single market. We will work together and with respect to international law and shared institutions.
Lord Fox (LD)
My Lords, I am glad the Minister mentioned the reset. Have the Government responded formally to the offer by the EU’s chief trade negotiator that the EU is interested in discussing with the UK the prospect of the UK joining the pan-Euro-Mediterranean convention?
Baroness Gustafsson (Lab)
I thank the noble Lord for that question. That is something that we are willing to discuss.
Lord Forsyth of Drumlean (Con)
My Lords, given the welcome statement by the Chancellor on financial regulation, and given that the European regulations, which were subject to some democratic control before, are now being placed in the hands of the regulators, what plans do the Government have to give direction to the regulators as to how they might be made accountable for the implementation of these as part of the Government’s growth agenda?
Baroness Gustafsson (Lab)
I thank the noble Lord for the question. The Government are committed to driving economic growth and working hand in hand with the regulators to make sure that that growth can be achieved in a sustainable way that is fair to all markets and ultimately beneficiary to consumers. The Government are committed to maintaining the independence of those regulators, but we work with them to provide an overall strategic steer on the directions and priorities they should be working towards so that they can work hand in hand with us and our priorities around growth.
Baroness McIntosh of Pickering (Con)
My Lords, I welcome the noble Baroness to her position. Have she and her department made an assessment of the cost to the UK chemical industry of having to match both a UK REACH programme and an EU REACH programme? Is this part of the reset that the Government will look at in our relations with the European Union?
Baroness Gustafsson (Lab)
I thank the noble Baroness for the warm welcome. With regard to REACH, we held a consultation on an alternative transitional registration model for the UK REACH chemicals regime to reduce the cost to industry while ensuring high levels of human health and environmental protection. We will publish a government response in 2025.
Lord Bellingham (Con)
My Lords, can the Minister explain the difference between retained EU law and assimilated EU law?
Baroness Gustafsson (Lab)
The retained EU law Act 2023 largely ended the special status of retained EU law. It did this by removing the majority of EU-derived interpretative effects. From 1 January 2024, retained EU law which had not been revoked became assimilated law.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, does my noble friend the Minister agree that, when we were members of the EU, it only ever set minimum standards and the UK was always free to do better than those minimum standards? When it comes to labour law and the Employment Rights Bill, this will help reset the relationship with the EU because we will be trailblazing better employment rights and conditions for workers.
Baroness Gustafsson (Lab)
We will continue to co-operate with European partners on regulatory matters wherever possible and we have held constructive discussions with the EU areas of mutual benefit. But one of the Government’s priorities is supporting our own growth and our own ambitious goals and making sure we have the regulatory and legislative framework to support us. It is an opportunity that is within our direct control.
Lord Sharpe of Epsom (Con)
My Lords, following on from the question from my noble friend Lord Forsyth, at the Davos 2025 conference the head of Meta’s global business remarked that the overregulation within the EU is stifling business, making the region significantly less competitive on the global stage. Therefore, does the Minister agree that the UK should prioritise aligning our regulatory framework to the most competitive global standards and avoid aligning with the EU, particularly as part of any reset, if we are truly serious about economic growth?
Baroness Gustafsson (Lab)
The Government’s priorities are around driving economic growth within the UK, and I firmly believe that regulation has an important role to make sure that that growth is not short-term but long-term and sustainable. We have many trading opportunities within Europe, which is one of our largest trading partners, and there is an opportunity to make sure that we work to remove any barriers that get in the way of supporting that trade while making sure that we still support our own ambitions within the UK to drive that sustainable economic growth.
Lord Watts (Lab)
My Lords, I congratulate the Government on trying to reset the relationship between ourselves and Europe that was ruined by the previous Government. Can I urge the Minister to put growth and our trade relationship at the forefront of our policy and to take no notice of those people who live in the past and have no idea how to attain the growth that we need?
Baroness Gustafsson (Lab)
I thank my noble friend for that question. We completely agree that economic growth within the UK is our number one priority. A great way to achieve that is by freshening the relationships we have with our key trading partners both within Europe and beyond.
Lord Newby (LD)
My Lords, given that economic growth is the number one priority of His Majesty’s Government, does the noble Baroness agree that one way of promoting economic growth would be strengthening the labour force in the UK by reintroducing the youth mobility scheme with the EU?
Baroness Gustafsson (Lab)
I would stand by our position that economic growth is an important factor. Understanding the skills required to accomplish that growth is something this Government take very seriously. Making sure we are respecting the rights of our workers has come under a lot of scrutiny and review as part of the Employment Rights Bill, and that will continue to be a priority of this Government. We are making sure we have the right aspirations and ambitions regarding growth and the right skills and talent within the UK to support that growth.
Lord Hannan of Kingsclere (Con)
My Lords, can the Minister tell the House which aspects of the reset will impact directly on our pursuit of a free trade agreement with the United States—a goal to which the Government remain laudably committed?
Baroness Gustafsson (Lab)
I cannot comment on the specifics of the exact regulation that may or may not be coming. With regard to the trading relationship and making sure we have trade agreements in place, the Government are constantly and doggedly pursuing that to make sure we have a clear trade relationship that is free from barriers that get in the way and impede trade.
Baroness Bennett of Manor Castle (GP)
My Lords, before the previous general election, the Royal Society of Chemistry was calling for a national chemicals agency to overhaul our
“broken chemicals regulation and management system”.
Since Brexit, the EU has stepped ahead in addressing many chemicals that are a threat to public health and environmental health. We are now getting further and further behind almost every day. Are the Government going to follow the recommendation of the Royal Society of Chemistry?
Baroness Gustafsson (Lab)
On the possibility of a chemicals agreement, as we have said, we will work to improve the UK’s trade and investment relationship with the EU across a wide range of areas, including this one. But it is too early to discuss scope or specific areas in greater detail.
Non-domicile Status
(2 days, 11 hours ago)
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Lord Leigh of Hurley
To ask His Majesty’s Government what assessment they have made of the economic impact of their plans regarding abolishing non-domicile status, which will now be modified following the announcement by the Chancellor of the Exchequer at the World Economic Forum in Davos.
The Financial Secretary to the Treasury (Lord Livermore) (Lab)
My Lords, the Government are making elements of the non-dom reforms simpler and more attractive to use while retaining the structure announced in the Budget. We do not expect these changes to impact the £33.8 billion of tax revenue which the OBR forecasts will be raised over five years from this Government’s and the previous Government’s changes to the non-dom tax regime. These changes reflect continued engagement with stakeholders to ensure that these reforms operate as intended.
Lord Leigh of Hurley (Con)
It is clear to me and many others that the Government do not have any idea of the amount of loss to the Revenue that the tens of thousands of people leaving this country—ultra high net worth people—will have. Adjusting the temporary repatriation facility just simply will not cut the ice or move the dial at all. I know of one City firm where 20% of the executives have left. Does the Minister not realise that insisting on subjecting wealth created and parked offshore to UK inheritance tax will drive former non-doms out of the UK? That will leave the Labour Government with a real £22 billion black hole.
Lord Livermore (Lab)
I am very grateful to the noble Lord, as always, for mentioning the £22 billion black hole. He mentions lost revenue. I remember the noble Lord telling me when my party was in opposition that our policy on non-doms would not raise any revenue, but in fact cost money. Just a few weeks after that, his Government performed a screeching U-turn and scored over £20 billion by implementing our policy, when they adopted it as their own. He was mistaken then, and I am very confident that he is mistaken now. The costings certified by the OBR for the previous Government’s and this Government’s reforms account for a potential behavioural response. But I do not recognise at all the figures that the noble Lord gives, which are purely speculative.
Baroness Kramer (LD)
My Lords, dropping the changes anticipated to the non-dom regime would not be fair to UK-domiciled taxpayers and to UK public finances. However, it is also wrong if those who have come from abroad to work here end up paying double taxation. Have the Government looked to update the UK’s tax treaties, which are meant to eliminate double taxation but currently fall short in significant areas, especially with complex tax countries such as the USA? Would he agree that it is not just a fairness issue? Sorting the many discrepancies would encourage many productive people to remain who are currently either leaving or considering leaving.
Lord Livermore (Lab)
I am very grateful to the noble Baroness for her question. To be clear, we are not dropping any reforms; we are making sure that they are working as intended, and we are trying to make the system as simple as possible to use so that those people are able to come to our country and invest in it. The noble Baroness asked about double taxation conventions. The Chancellor has been very clear that the reforms to the taxation of non-domiciled individuals do not affect the UK’s existing double taxation conventions, and we do not intend to change those treaties.
Lord Mountevans (CB)
My Lords, the legislation of successive Governments has resulted in the closure or downsizing of many international ship owners’ offices in London and the UK. This is a very important business; Britain has a world-leading maritime professional business services sector. Will the Minister ensure that all consideration is given to increasing the domicile arrangements so that they are more in line with Europe, so that the principal—himself or herself—who very often takes the very top decisions, could spend more of their time here?
Lord Livermore (Lab)
I am grateful to the noble Lord, and I am of course happy to look at that. Obviously, we keep this policy under review and will continue to engage with stakeholders to ensure that the system operates as it should. It is important to remember that the basis of this policy is ensuring that everyone who makes their home in the UK should pay their taxes here; that is absolutely the right thing to do. We want to ensure that our system remains internationally competitive, and the system that we are introducing as a result of these reforms is far more internationally competitive than the system that it replaces.
Lord Sikka (Lab)
My Lords, for far too long the wants of the few have been prioritised over the needs of the many. I cannot recall marches or petitions calling for concessions to wealthy non-doms, but despite marches and petitions, the two-child benefit cap and winter fuel payments cut for pensioners below the poverty line remain. Can the Minister offer some guidance to families and pensioners as to how they can get a concession too?
Lord Livermore (Lab)
The Government are committed to making sure that the wealthiest in our society pay their fair share of tax, consistent with our commitment to economic growth. That is why the Chancellor announced a series of reforms at the Budget to help to fix the public finances in as fair a way as possible. That is absolutely what we are doing, and we are ensuring the fairest treatment to those affected.
Baroness Jones of Moulsecoomb (GP)
My Lords, are the Government thinking that this money they are going to raise from all the non-doms is actually going to—as the former Labour Party might have hoped—lift people out of poverty, rather than crush them even further into poverty, as seems to be happening at the moment?
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
There is plenty of time for both noble Lords to ask a question. We will have the noble Lord, Lord Petitgas, first, and then my noble friend.
Lord Petitgas (Con)
My Lords, do the Minister and the Government have any hard evidence, perhaps through a recalculation of the effects of the Bill on non-doms, that this news that was announced in Davos will have a tangible effect on the emigration of a lot of these non-doms? This does not look like a U-turn at all—for which the Government should be commended— but rather more like an L shape. The reason why I am asking this question is because the key criticism from the non-doms, and the reason why they are leaving, is that if someone lives here as a non-dom for four years they will have a 10-year tail on the inheritance on all their offshore assets. That is clearly something that is not acceptable to most of them. What I heard in Davos does not change that, and therefore I am not sure it really changes very much.
Lord Livermore (Lab)
I am very grateful to the noble Lord for passing on the feedback that he heard. I am assuming that he agrees with this Government’s policy on non-doms, since he was an adviser to the previous Government when they actually took our policy, implemented it, and scored £20 billion for it. So I am assuming that he approves of our policy and of the fact that we are raising that revenue. The changes that we are making to the system to make it simpler and more attractive to use are based on speaking to the relevant stakeholders and ensuring that they find it attractive to use. As I say, the system that we are implementing is actually more competitive than the system that it replaces.
Lord Grocott (Lab)
Can I welcome very much my noble friend’s clear restatement of our commitment to this policy? It is right because it raises revenue, but it is also right in principle.
Lord Livermore (Lab)
I am very grateful to my noble friend for his comments. The Government are absolutely committed to addressing unfairness in the tax system so that everyone who makes their home in the UK pays their taxes here. It is absolutely right that we have the most competitive tax regime that we possibly can.
Lord Altrincham (Con)
Following the original question of the noble Lord, Lord Leigh, we should wish the Minister and the Government well in running after taxpayers who have left the country, many of whom, of course, are non-doms who are not British and who will be very hard to recover or bring back. But many of the departures at the moment are British: they are UK-domiciled tax residents who are leaving. Therefore, can the Minister share with us the Treasury’s best estimate for the departure of all higher-rate taxpayers during this tax year?
Lord Livermore (Lab)
I am slightly confused about what underlies the noble Lord’s question, given that, as I say, the previous Government introduced this party’s policy on this issue. The OBR had migration assumptions associated with that policy, as it does with this one. The OBR has factored in the potential behavioural response of affected non-domiciled individuals into its costings. It accounts for an assumed level of migration from this group, just as it did for the previous Government’s groups. So, as I understand it, the migration assumptions for the previous Government’s reforms were 10% and, for this Government’s reforms, they are 12%.
Lord Watts (Lab)
Yes, noble Lords are going to get it. Does the Minister find it strange that members of the party opposite seem to be very worried about non-doms, when the last Government introduced taxes that hit ordinary working families and they did not utter a word of criticism about that?
Lord Livermore (Lab)
I am grateful to my noble friend for his question. I find quite a lot strange about the attitude of the party opposite, not least what he says—the fact that it introduced £30 billion-worth of taxes on working people in the last Parliament, and yet it does not seem to think there is anything wrong with that and still has not apologised.
Environmental Permitting (Electricity Generating Stations) (Amendment) Regulations 2024
(2 days, 11 hours ago)
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Lord Hunt of Kings Heath
That the draft Regulations laid before the House on 30 October and 3 December 2024 be approved.
Considered in Grand Committee on 27 January.
Russian Maritime Activity and UK Response
(2 days, 11 hours ago)
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Baroness Goldie (Con)
My Lords, Russian maritime activity has increasingly been a matter of concern, and I thank the Secretary of State for Defence for his timely update on the UK response, through the agency of the Minister, the noble Lord, Lord Coaker. Equally welcome is the candour that has been deployed. It is important for Parliament to understand what the response is, but the detail that the Secretary of State has been willing to disclose is unexpected and certainly helpful and reassuring. It sends a clear message to President Putin that we know what he is up to, and his covert and menacing activity is being closely monitored, with an appropriate Royal Navy intervention.
These Benches support the Government’s response to this brazen maritime activity. We commend the Secretary of State on changing the Royal Navy’s rules of engagement, and his robust attitude towards this provocative intrusion by a Russian spy ship deserves praise.
It is clear from the Statement that the Government are also cognisant of the wider Russian threat and helpfully lists both the RAF and Royal Fleet Auxiliary response, together with our contribution to NATO and JEF activity. All of that has the support of these Benches, as does the Government’s continuing support for Ukraine. But all of this comes at a cost, and if our UK defence capability is to continue to operate at a level necessary to meet these continuing threats, we have to know how the Government intend to resource that new level of response.
In anticipating the reference of the noble Lord, Lord Coaker, to the SDR report, which we are led to believe is expected in March, I gently remind him that by then the Government will have put defence funding into the deep freeze for nine months. Given the news stories now swirling around, with the financial challenges hitting the Chancellor head on, is 2.5% of GDP for defence by 2030, regardless of what the SDR comes up with, off the agenda?
Given President Trump’s very robust approach to defence spend, believing 5% to be necessary, what are the repercussions for the special relationship if the UK fails to make 2.5% by 2030? In particular, what are the implications for our mutual defence engagement?
Against this backdrop of defence funding fog, what types of MoD orders are currently in limbo? What preparations are in hand to adapt to the new and harsh reality of cutting our defence coat according to the Government’s visibly reduced and increasingly threadbare cloth?
In conclusion, there is a patent irony that the Chancellor can find £9 billion to hand over to Mauritius, thereby reducing our national security, while slapping inheritance tax on to our Armed Forces personnel, who fight for our security, and at the same time exempting US armed forces personnel from paying VAT on private school fees in this country while clobbering our own Armed Forces with VAT on school fees.
Will the Minister, who I know is a champion of defence and the Armed Forces, convey to the Chancellor, in his own unvarnished language, which I know he is more than capable of using, how illogical, how unfair and how unacceptable this is?
Baroness Smith of Newnham (LD)
My Lords, from these Benches, I associate myself with the first remarks of the noble Baroness, Lady Goldie, in supporting His Majesty’s Government in their response to the Russian ship, and thanking the Minister for being here today to answer questions, as well as the Secretary of State for his Statement last week. It is clearly important that parliamentarians have the opportunity to understand what is happening: equally, we understand the Secretary of State’s point that there is a limit to how much operational information can be given.
We support the Government’s action, but I have a series of questions. The Minister will probably be quite relieved that, for once, they relate not to defence expenditure but to defence posture and practice. We are looking in our own waters at the North Atlantic area —the Euro Atlantic area—which is the most important for our security. We are, in many ways, benefiting from the fact that NATO has two new members, Sweden and Finland. They are both committed to serious defence and Finland, in particular, is committed to national resilience. At the end of the Secretary of State’s Statement is a point about securing the UK’s borders and our own security. What are His Majesty’s Government doing in terms of United Kingdom resilience? Are we considering giving further information to ordinary civilians about the security concerns that we are aware of but perhaps they are not thinking about?
That is not necessarily to go as far on civilian training as Finland does—I am certainly not calling for conscription—but are we at least thinking about widening the discussion with society to include the threats in not just traditional hard military concerns but cyber? Are we thinking about the need for us all to be vigilant and to be aware that we need to think about the threats coming from Russia as a whole society? At the moment, there is a reluctance to understand that we need to devote more time and resource to defence. This is a plea not for a percentage of defence expenditure but about the need to talk to citizens about the threats we all face.
There have been clear threats in our waters, but we have also seen threats in recent days in the Baltic states and a potential threat to Danish and Greenlandic sovereignty. To what extent are His Majesty’s Government willing and able to speak truth to power, in the form of the President of the United States? The idea that the United States somehow requires a sovereign territory for its own security is wholly unacceptable. For it essentially to threaten the sovereignty of a fellow NATO member state is also unconscionable. While I do not expect the Minister to tell us what the Prime Minister and the President spoke about recently, will he at least suggest to the Secretary of State, the Foreign Secretary and the Prime Minister that we need to ensure that NATO is fit for purpose and that the whole edifice is not in danger of coming down? After all, NATO has kept us secure for over 70 years.
The Minister of State, Ministry of Defence (Lord Coaker) (Lab)
My Lords, I thank the noble Baronesses, Lady Goldie and Lady Smith, for their tone and their remarks. They both asked perfectly legitimate questions, but I should start with the statement that I always make—as the noble Baroness, Lady Goldie, always used to—that all of us want to see the defence and security of our country and that we stand together to ensure, as far as we can, that we and our interests abroad, with our allies, are kept secure.
The noble Baroness, Lady Goldie, asked about support for maritime activity. I am glad to see the noble Earl, Lord Attlee, behind her, because I said in an Answer to a Written Question from him on the important point behind her question that the UK Government, either on their own or with their allies, will take action to deal with any potential threats. The noble Baroness referred to the rules of engagement, which are particularly important and will be reviewed on a case-by-case basis. She congratulated the Secretary of State on his candour. It is important to reflect that he said that to ensure that the message went out we will take appropriate action. Changing the rules of engagement to allow our ships, where appropriate, to get closer and carry out closer observation is important.
The really significant point, as the Defence Secretary laid out in the other place last week, was in response to the November activities of the “Yantar”, when a submarine surfaced. He outlined to Parliament that he authorised that submarine to surface. The noble Baroness is right to point out how important it was for him to say that, both as a reassurance to us and our allies that we will take the necessary action and as a message to others. She was right to highlight that and I thank her for doing so.
In answer to the point made by the noble Baroness, Lady Smith, about some of the other activities that the Government have taken both to support us and our allies and to defend undersea structures and shipping in the Baltic, the North Sea, the southwest approaches, the channel and so on, there are a number of things to say. Noble Lords will have seen the activity rate. On HMS “Somerset,” the crew were recalled on Christmas Day, and we pay tribute to them for that. Two days later, they were at sail because of the concern about ships that were going through the English Channel. That shows, again, our resolution to do that.
The noble Baronesses will also know that, with respect to the High North and to the JEF, we have recently seen the establishment of the Nordic Warden operation, which is particularly important. With Nordic Warden, we see the use of artificial intelligence, based at Northwood, to track shipping, using the various signals and other data to inform either ourselves or our allies where potential harm could be done. Again, that was outlined in the other place. Noble Lords can read it online. Nordic Warden is another example, through the JEF, which the noble Baroness asked about, of projects that are UK-led, where we are acting to ensure that the appropriate action is taken there.
The noble Baronesses will also know, with respect to NATO, that Baltic Sentry has been announced recently. Again, that is where maritime assets have been laid out by some countries to ensure the protection of undersea cables and that other laws are maintained. They will have also seen the Defence Secretary lay out for us that Rivet Joints and P8s have been used as a contribution to Baltic Sentry. In many areas, therefore, we are seeing the deployment of UK military assets with our allies to defend our underwater structures and to take action where necessary with respect to all of this. That is a really important statement.
I turn to the point about spending. It is particularly important to lay out that, notwithstanding the debate about what we should be doing, it is vital that this country has the assets—and I have laid out some of the specifics—to take considerable action to defend ourselves against those who would do us harm in the ways that I have outlined. Similarly, with respect to Ukraine, which both noble Baronesses mentioned, our resolve remains steadfast. We thank them and all noble Lords for the support they give to withstanding the illegal invasion of Ukraine. It is particularly important at this time for us to continue to reiterate that.
On spending, the noble Baroness will know the position of the Government, and I hear the point that she makes about my unvarnished language, which I would have said is pretty varnished in here. Having said that, I take the point. The noble Baroness will know that there is £3 billion additional spending in the 2025-26 budget, and the Government’s position remains the same, that in the spring we will set out our pathway to spending 2.5%. I was rather taken aback when the noble Baroness mentioned £9 billion. I thought for a moment that she was going to praise the Government for the £9 billion investment in Rolls-Royce for the development of the nuclear-powered submarines that we are going to see with respect to AUKUS. There we go: I shall do that instead. Notwithstanding the debate about spending, there are considerable investments being made.
I take the point that the noble Baroness made about homeland security. We are going to have to consider more carefully the information that we give to the public, as well as what is the most appropriate and sensible way of doing it and how much information we can give people. I am of the view that we should share as much information as we can, where it is sensible to do so and it does not compromise operations or the security of our country and our personnel. We should always think about how we might do that and what more we can do.
On threats to homeland security, a couple of weeks ago I made the point that we are not in the situation we were a few years ago, given that we now face threats to underwater cables, cyberattacks, and concerns about critical national infrastructure and others, such as unauthorised drone activity—although it is unconfirmed exactly what the causes of that were around certain places. All of these things raise issues for us. It is extremely important we have a public understanding of that. We need to ensure we have the resources to deal with these things properly when there are other calls on the public purse. The defence of our country is important—sometimes the most important—even when set against some of the other priorities that people quite naturally want to see money spent on.
On the new President of the United States, it is important to recognise that the relationship between the US and the UK is key to the defence and security of the values and freedoms not only of our own country but of our alliances across Europe and the globe. They underpin NATO and many of our other alliances and interests. It is important we reiterate that, time and again, to the new President. I see many comments and much speculation, but, for the defence and security of our country, the most helpful thing to say is that we look forward to continuing to work with the United States and the President. It is in the United States’ interests and our interests, and the interests that our two great countries have always stood for: freedom, democracy and human rights across the globe. That relationship remains as important now as it ever was.
I hear what the noble Baroness said about the questions the President has raised about this or that country or region. I think the President and others are thinking about the security challenges in those areas. The Arctic, for example, is opening up in a way that climate change is making possible—that would not have been possible a few years ago. That raises security challenges for us all, and responding necessarily means discussing those. Russia is reopening Cold War bases in that region and China is looking to exploit that. Somehow, we have to work together to understand those new threats and challenges, and to consider how we face them. We are trying to do so through the defence review, which will look at many of the challenges that we face. My noble friend Lord West has raised a number of times the importance of the maritime capabilities that will be needed and the differences within that, which will be something that the defence review will have to address.
I am very grateful to the noble Baronesses, Lady Goldie and Lady Smith, and to all noble Lords across the House for the sometimes challenging questions they quite rightly demand of the Government. Those watching or reading this should know that this House, as with the other place, remains united in the defence of the freedoms and values that this country has always stood for. There will be difficulties and challenges, but no one should doubt our resolve to continue in the defence of the freedoms that we have always stood for.
Lord Anderson of Swansea (Lab)
My Lords, Russia’s malign maritime activities are not confined to its navy. My noble friend the Minister will recall that, on Christmas Day, the Finns impounded a vessel and took it to their home port; it contained spy equipment and, allegedly, dragged its anchor and damaged a number of cables. That was part of the Russian shadow fleet, which is underinsured, potentially polluting and sanctions-busting. Can my noble friend say what can be done to counter the threat of the Russian shadow fleet?
Lord Coaker (Lab)
My noble friend will know that, for any ship posing a threat to this country, there will be an appropriate maritime response from our military, primarily through our maritime capabilities. He raised a really important point. So far, we have sanctioned 93 vessels, which means that they are unable to access some of the normal arrangements that ships have, including access to financial markets. As a result, some ships—I think there are two, but there may be others—have had to remain in port. The sanctioning of those ships is an important way forward. We are well aware of the various activities taking place, and where we suspect it and can prove it, we will take action.
Lord Houghton of Richmond (CB)
My Lords, I thank the Minister for sharing the Statement. In the context of tactical action, it is not a bad tactical response. Having read it only just before today’s sitting, I think it aspires to be an element of strategic messaging—but, as that, it is close to hopeless. It aspires to be a strong message to Putin, to reassure the British public and to demonstrate the UK’s leadership role in NATO. However, it is a statement of reassurance based on a complete delusion about the true state of our military capability. In truth, it feels as if we are on a frustratingly slow-moving SDR, in the context of a complete vacillation regarding funding, and at a point when—this will hurt, though I am not blaming the Minister, whom I personally like, tremendously—our reputation in NATO is at an all-time low.
Let me give the detail on that. The experts will know that NATO has a process of setting military capability targets, which go to the NATO nations to be politically agreed on, and they then become binding on nations. There are now, thankfully, 32 members of NATO. Where do we figure in the delivery table of those 32 nations? I will tell the House: 32nd. We are brilliant at writing papers and we can talk wonderfully within NATO, but on the delivery of military capability, we are bottom of the league. Does the Minister agree that our messaging, both domestically and internationally, will be completely without substance until we fund defence appropriately and in accordance with our international commitments?
Lord Coaker (Lab)
I do not know what the noble and gallant Lord would say to me if he disliked me.
Having said that, he raised a number of really important points. He heard what I said about funding in response to the noble Baronesses, and we are looking to set out the pathway to that. Others will have heard his call for more resources. There are issues around what capabilities we have and how we take them forward; we have heard demands not only to provide traditional capabilities but to be prepared for the changing threats we face and to establish how we develop the capability to deal with them.
My reading of the view that other countries have of us does not entirely accord with that of the noble and gallant Lord. In many respects, the NATO countries that I have met, notwithstanding the debates about capabilities, often look to the UK to see what we think about what we should do and for leadership.
I have already outlined the NATO response to what is happening in the Baltic with Baltic Sentry. That is a group of allies from NATO: eight countries coming together to provide maritime capability and do other things, and we are providing the reconnaissance for some of that. That is a NATO project, a NATO alliance acting together to deliver security. Of course, the whole point of NATO is that each country comes together to do that. We are looking at the capabilities that the noble and gallant Lord mentioned, but also as part of that, we have the JEF, which is a complementary part of NATO specifically looking at the Northern region, and the UK set that up; the UK is the lead for that. The Nordic Warden campaign that has been set up is run from London, based at Northwood, and the JEF countries are looking to us to provide that leadership, because we are the only country that has the necessary artificial intelligence which allows us to track some of the vessels that we may be concerned about.
Yes, there are issues, and the noble and gallant Lord laid them out very articulately. I just say to him that we are developing abilities, and I would say that, in my view, our role and status within NATO, and the view that many other countries have of us, are perhaps higher than the noble and gallant Lord set out in his remarks. Certainly, that is what people say to me when they say, “Where is the UK on this, because we want to see them there with us?”
Lord Fox (LD)
My Lords, whether one signs up to the noble and gallant Lord’s view or the Minister’s, I think it is safe to say that the NATO theatre is becoming ever warmer and the requirements from the United Kingdom are getting greater. But it is not only in NATO that we make commitments. As the Minister will know, we are set to join the US-Bahrain Comprehensive Security Integration and Prosperity Agreement—a very long name—which cements us into quite considerable naval activity based in Bahrain. Does the Minister share my concern that we are cementing and placing resources that we cannot move back into the European theatre by signing this treaty, and it puts another strain on already strained resources?
Lord Coaker (Lab)
I understand the point the noble Lord is making with respect to Bahrain, but let me say this. The UK acts wherever it needs to to protect its interests. I often make the point about the indivisibility of conflict. I went to Vietnam recently. Vietnam is concerned about Ukraine, because it has brought Russia and China closer together in a way that it never expected. I am proud of the fact that, notwithstanding Bahrain, later this year, we will lead a carrier strike group out into the Indo-Pacific to demonstrate that the law of the sea, the international rules-based order, is something that is important to us. There are numerous countries, both in Europe and in the Far East, including our allies Australia and New Zealand, that will stand with us in delivering that capability. Defending the rule of law in those areas is important. You cannot divide peace and security in one part of the world from peace and security in another, and I for one am pleased that the carrier strike group is going out into the Indo-Pacific later this year.
Lord Harlech (Con)
My Lords, I declare an interest as a serving Army Reserve officer and pay tribute to the Minister for the fulsome and frank responses which he always gives when defence questions come up. In his earlier remarks, he mentioned AUKUS. That, along with the Tempest programme, are two key flagship defence procurement projects. The US Congress has recently raised concerns about the US side of the deal and that their shipyards are not currently where they need to be to start producing the boats. We have had warm messages of support for both projects from the Government, which are welcome, but actual project updates are thin on the ground, so, perhaps not now, could the Minister commit to updating the House that both projects are where they need to be?
Lord Coaker (Lab)
I certainly can do. First, I again pay tribute to the service that the noble Lord demonstrates through his activity in the reserves—it would be wrong not to do that.
I will deal with the projects one by one. AUKUS is a phenomenal project. The Government have just announced £9 billion of investment in Rolls-Royce to deliver the propulsion units for the nuclear-powered submarines. That relationship between the US, the UK and Australia is fundamental to the peace and security of the globe as we go forward. As far as we are concerned, pillar 1 is moving forward at pace. Issues may well arise with a project such as AUKUS, but they will be dealt with as necessary, and the AUKUS project moves at pace.
The pillar 2 aspects of that—the technology and development of other capabilities—are also moving along. Discussions are taking place about whether we move beyond the initial three countries to involve other countries. So, as an update to the noble Lord, I say that AUKUS is moving forward at pace.
On GCAP, which noble Lords know is the relationship between ourselves, Japan and Italy that aims to develop a sixth-generation fighter, I can say that that too is moving. Various treaties have been put in place and various commitments have been made to it. We will see a sixth-generation fighter produced by those three nations, which again will contribute to the defence and security of the globe.
Both those updates are not good news stories in terms of gloating and saying what a wonderful thing this is; but it is good to say—notwithstanding the noble Baroness’s challenge about money—that with both AUKUS and GCAP we have capabilities that are being developed that will secure our own country and alliances and enable us to stand up in the future for peace and security in Europe and beyond. As such, we should celebrate both of them.
Lord Mountevans (CB)
Perhaps I might come back to the homeland issues first raised by the noble Baroness, Lady Smith, and indeed by the Minister. Are the Government satisfied that business and commerce, particularly the City and energy sectors, are taking all the precautions they can to protect these critical national assets? What are the Government doing to co-ordinate the preparations?
Lord Coaker (Lab)
On the first point, like the Government and like defence industries, companies and businesses will have to look again at how much priority they give to that: that is an important point. Whether it is a telecommunications company or an energy company, it is responsible for the protection of much of its infrastructure. In terms of the co-ordination that the noble Lord asked about, that is something that I have asked about as well. If we are calling on businesses to do this, energy companies to do that, the defence industry to do this and the Foreign Office do that, that requires perhaps greater co-ordination across government. As we meet the challenges and threats as they change in the future, it may be that government needs to look at the co-ordinating mechanisms it has to ensure that they are as up to date as they need to be.
Lord West of Spithead (Lab)
My Lords, how nice it is to be talking about ships. I do not agree totally with the noble and gallant Lord about the perception of us within NATO. However, maybe its perception should be that, because our capabilities have gone down to such an extent. Indeed, there is a sort of sense of déjà vu because, sitting over there for years and years, I have been saying to the Opposition, who were then in government, that we were reducing capabilities far too fast and not really keeping them, and that is a worry.
I would like to come back to the actual underwater tapestry and defence of that. I do not know whether the Minister has visited the Joint Maritime Operations Centre in Fort Southwick, but, if not, he should do. It has an ability now to co-ordinate a view of where all Russian and other ships are throughout our territorial waters, the exclusive economic zone and beyond, and then take executive action to do things about it. The examples given by the Secretary of State of actions taken recently against the craft are a very good tactical example of what can be done; I think it surprised Putin, not least because they know how few submarines we have got, and for one of them to pop up like that was a bit of a shock for them. There is no doubt it was the right sort of action to be carried out.
Could I ask the Minister whether he will go and visit the Joint Maritime Operations Centre? It is important and actually ties together all the things that the noble Lord, Lord Mountevans, was discussing. Responsibility for this is beyond just the Navy, which can co-ordinate it. There is a whole series of other departments, and we need to ensure that they all work together.
Lord Coaker (Lab)
I thank my noble friend Lord West for his question. No, I have not been there but I will go. I will write to let him know when I am going so that I do what I say I am going to do.
I take my noble friend’s point about capabilities. There will always be a debate about the capabilities and their development, but we are also entering the realm of the capabilities that we need. He will be pleased about the order for eight Type 26 frigates, which will be delivered by the middle of the 2030s. I think I laid that out in answer to a question from my noble friend.
On that development, although there will be differences, I give credit to the last Government where it is due. They ordered the Royal Fleet Auxiliary ship “Proteus”, which deals with many of the underwater threats we face and has capabilities that are developing all the time. That has made a big difference. As my noble friend Lord West has often asked, what has happened to the commitment for the second? It will not necessarily be exactly the same type of ship as “Proteus” but it will have similar aims and objectives. That will certainly be part of the defence review as well.
My noble friend Lord West is right to make the constant demand for capabilities, as the noble and gallant Lord, Lord Houghton, did. That has to be a consideration: how many of such a platform we do have and what sort of platforms do we need to meet the future threats we face?
Lord Hannay of Chiswick (CB)
The Minister is right when he says that the threat from the Arctic to the NATO area is increasing, with the melting of the ice and many other factors. When the Secretary of State for Defence has a first contact with his new US opposite number, who has just been confirmed, will he argue that we need to protect all the assets that NATO has in the Arctic and not be diverted and distracted by the issue of who owns Greenland or who wants to buy it?
Lord Coaker (Lab)
I could get myself in a lot of trouble here. In answer to the noble Lord’s question, I am seeking to outline that it is important for us to start with the point, which is obviously true, that the US-UK special relationship and alliance is fundamental to our country and to the alliances to which we belong for the freedom and defence of democracy in Europe and beyond. One then goes on to say that of course we face various challenges, not least because of the opening up of the Arctic, so how do we best meet those challenges together? That is the way to take forward that relationship and those discussions, whether they are with the new Defense Secretary in the United States or the new President. That is how we can deliver the peace and security that we want and a sensible policy objective, rather than get into, “This is what somebody said”. That is a grown-up, sensible foreign/defence policy. If I am wrong then I am wrong, but that is the way I would approach it and that is the sensible and pragmatic way in which our country should do so.
The Lord Bishop of St Edmundsbury and Ipswich
My Lords, may I pick up a point raised by both the noble Baronesses on spending? I have always supported a considerable increase in spending on defence and share the frustration at the speed at which we are reaching it. My concern is that I am not sure the British public recognise that need. How are the Government proposing to raise awareness in a positive way that will support such an increase in spending?
Lord Coaker (Lab)
Leaving aside the debate about the amount of spending and the increase to it, in a few months’ time we will celebrate VE Day. A few days after that, we will celebrate VJ Day. When we have these great celebrations of the victories of democracy against fascism or those who have undermined the rule of law—which we see in the present day in Ukraine—people understand that it is necessary to protect the freedom and democracy that we enjoy in this country. In many respects, our country leads that fight with our friends and allies.
However, I often think that we lack the confidence as a nation to say that and for politicians to stand up and say it. Yes, of course there are demands for spending on hospitals, schools and all the other important demands on the public purse but, ultimately, people live their lives that they do in this country because of the money paid and sacrifice made in the past to enable our democracy and freedom to flourish.
People may not feel that freedom and democracy are being attacked directly, but rest assured, through some of the hybrid and other threats that we are seeing in other parts of the world, our way of life is being challenged. That needs spelling out and saying to people because, if it is never properly explained to them, they will not forgive that in a number of years’ time. That leads to difficult but important conversations, from which we should not shy away.
Data (Use and Access) Bill [HL]
Tuesday 28th January 2025
(2 days, 11 hours ago)
Lords ChamberRead Full debate Data (Use and Access) Bill [HL] 2024-26 View all Data (Use and Access) Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 57-II Second marshalled list for Report - (24 Jan 2025)
18:26 - Division on Amendment 44A - Ayes: 145 / Noes: 126 - Amendment 44A agreed.
Lord Holmes of Richmond
Member’s explanatory statement
This amendment ensures that the Commissioner’s duty to have regard to the desirability of promoting innovation is referable only to the duty imposed under section 108 of the Deregulation Act 2015. This amendment seeks to ensure that the Commissioner’s status as an independent supervisory authority for data protection is preserved given that such status is an essential component of any EU adequacy decision.
Lord Holmes of Richmond (Con)
My Lords, it is a pleasure to open the second day on Report on the Data (Use and Access) Bill. In doing so, I declare my technology interests as set out in the register, not least as an adviser to Socially Recruited, an AI business. In moving Amendment 38 in my name, I will not speak to any other amendments in this group.
Amendment 38 goes to the heart of the issue du jour: regulators have seldom been so much in the press and in the public eye. As the press would have it, they were hauled into No. 11 just a few days ago, but this speaks to what we want from our regulators across our economy and society. At their best, our regulators are the envy of the world. Just consider the FCA when we did the fintech regulatory sandbox: as a measure of success, it was replicated in well over 50 jurisdictions around the world.
We know how to do right-sized regulation and how to set up our regulators to succeed to do that most difficult of tasks—to balance innovation, economic growth, and consumers’ and citizens’ rights. That is what all regulators should be about. It is not straightforward; it is complex but entirely doable.
Amendment 38 simply proposes wording to assist the Information Commissioner’s Office. When it comes to the economic growth duty—“#innovation”—it simply refers back to Section 108 of the 2015 Act. I believe that bringing this clarity into the Bill will assist the regulator and enable all the conversations that are rightly going on right now, and all the plans that are being produced and reported on, such as those around AI, to be properly discussed and given proper context, with an Information Commissioner’s Office that is supported through clarity as to its responsibilities and obligations when it comes to economic growth. In simple terms, this would mean that these responsibilities are restricted and clearly set out according to Section 108 of the 2015 Act. It is critical that this should be the case if we are to have clarity around the commissioner’s independence as a supervisory authority on data protection, an absolutely essential condition for EU adequacy decisions.
I look forward to the Minister’s response. I hope that he likes my drafting. I hope that he will accept and incorporate my amendment into the Bill. I look forward to the debate. I beg to move.
Lord Clement-Jones (LD)
My Lords, I rise to support Amendment 38 in the name of the noble Lord, Lord Holmes. More than ever before, the commissioner, alongside other regulators, is being pressured to support the Government’s growth and innovation agenda. In Clause 90, the Bill places unprecedented obligations on the ICO to support innovation. The question, in respect of both the existing growth duty and Clause 90, is whether they are in any sense treated as overriding the ICO’s primary responsibilities in data protection and information rights. How does the ICO aim to balance those duties, ensuring that its regulatory actions support economic growth while maintaining necessary protections?
We need to be vigilant. As it is, there are criticisms regarding the way the Information Commissioner’s Office carries out its existing duties. Those criticisms can be broadly categorised into issues with enforcement, independence and the balancing of competing interests. The ICO has a poor record on enforcement; it has been reluctant to issue fines, particularly to public sector organisations. There has been an overreliance on reprimands, as I described in Committee. The ICO has been relying heavily on reprimands, rather than stronger enforcement actions. It has also been accused of being too slow with its investigations.
There are concerns about these new duties, which could pose threats to the ability of the Information Commissioner’s Office to effectively carry out its primary functions. For that reason, we support the amendment from the noble Lord, Lord Holmes.
Viscount Camrose (Con)
My Lords, I thank my noble friend Lord Holmes of Richmond for moving this amendment. I am sure we can all agree that the ICO should encourage and accommodate innovation. As I noted during the first day on Report, in a world where trade and business are ever more reliant on cross-border data transfers, data adequacy becomes ever more important.
In Committee, the noble Baroness, Lady Jones of Whitchurch, was able to give the House the reassurance that this Bill was designed with EU adequacy in mind. We were pleased to hear that the Government’s course of action is not expected to put this at risk. I also suggest that this Bill represents even less of a departure from GDPR than did its predecessor, the DPDI Bill.
We welcome the Government’s assurances, but we look to them to address the issues raised by my noble friend Lord Holmes. I think we can all agree that he has engaged constructively and thoughtfully on this Bill throughout.
The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)
I thank the noble Lord, Lord Holmes, for his Amendment 38 relating to the ICO’s innovation duty. I agree with his comments about the quality of our regulators.
I reiterate the statements made throughout the Bill debates that the Government are committed to the ongoing independence of the ICO as a regulator and have designed the proposals in the Bill with retaining EU adequacy in mind. The commissioner’s status as an independent supervisory authority for data protection is assured. The Information Commissioner has discretion over the application of his new duties. It will be for him to set out and justify his activities in relation to those duties to Parliament.
To answer the specific point, as well as that raised by the noble Lord, Lord Clement-Jones, considerations of innovations will not come at the expense of the commissioner’s primary objective to secure an appropriate level of protection for personal data. I hope that reassures the noble Lord.
Lord Holmes of Richmond (Con)
I thank all noble Lords who have taken part in this short debate and thank the Minister for his response. I believe my wording would assist the ICO in its mission, but I have listened to what the Minister has said and, for the time being, I beg leave to withdraw the amendment.
Lord Vallance of Balham
Member's explanatory statement
This amendment adds an express reference to children meriting specific protection with regard to their personal data in new section 120B(e) of the Data Protection Act 2018 (Information Commissioner’s duties in relation to functions under the data protection legislation). See also the amendment in my name to Clause 70, page 78, line 23.
Baroness Kidron
“Code of practice on Children's Data and Education(1) The Commissioner must prepare a code of practice which contains such guidance as the Commissioner considers appropriate on the processing of data in connection with the provision of education.(2) Guidance under subsection (1) must include consideration of—(a) all aspects of the provision of education including learning, school management and safeguarding;(b) all types of schools and learning settings;(c) the need for transparency and evidence of efficacy on the use of AI systems in the provision of education;(d) the impact of profiling and automated decision-making on children’s access to education opportunities;(e) the principle that children have a right to know what data about them is being generated, collected, processed, stored and shared;(f) the principle that those with parental responsibility have a right to know how their children's data is being generated, collected, processed, stored and shared;(g) the safety and security of children’s data;(h) the need to ensure children's access to and use of counselling services and the exchange of information for safeguarding purposes are not restricted.(3) In preparing a code or amendments under this section, the Commissioner must have regard to—(a) the fact that children are entitled to a higher standard of protection than adults with regard to their personal data as set out in the UK GDPR, and the ICO’s Age Appropriate Design code;(b) the need to prioritise children's best interests and to uphold their rights under UN Convention on the Rights of the Child and General Comment 25;(c) the fact that children may require different protections at different ages and stages of development;(d) the need to support innovation to enhance UK children's education and learning opportunities, including facilitating testing of novel products and supporting the certification and the development of standards;(e) ensuring the benefits from product and service developed using UK children’s data accrue to the UK.(4) In preparing a code or amendments under this section, the Commissioner must consult with—(a) children,(b) educators,(c) parents,(d) persons who appear to the Commissioner to represent the interests of children,(e) the AI Safety Institute, and(f) the relevant Education department for each nation of the United Kingdom.(5) The Code applies to data processors and controllers that— (a) are providing education in school or other learning settings;(b) provide services or products in connection with the provision of education;(c) collect children's data whilst they are learning;(d) use education data, education data sets or pupil data to develop services and products;(e) build, train or operate AI systems and models that impact children’s learning experience or outcomes;(f) are public authorities that process education data, education data sets or pupil data.(6) The Commissioner must prepare a report, in consultation with the EdTech industry and other stakeholders set out in subsection (4), on the steps required to develop a certification scheme under Article 42 of the UK GDPR, to enable the industry to demonstrate the compliance of EdTech services and products with the UK GDPR, and conformity with this Code.(7) Where requested by an education service, evidence of compliance with this Code must be provided by relevant providers of commercial products and services in a manner that satisfies the education service's obligations under the Code.(8) In this section—“EdTech” means a service or product that digitise education functions including administration and management information systems, learning and assessment and safeguarding, including services or products used within school settings and at home on the recommendation, advice or instruction of a school;“education data” means personal data that forms part of an educational record.“education data sets” means anonymised or pseudonymised data sets that include Education Data or Pupil Data.“efficacy” means that the promised learning outcomes can be evidenced.“learning setting” means a place where children learn including schools, their home and extra-curricular learning services for example online and in-person tutors.“pupil data” means personal data about a child collected whilst they are learning which does not form part of an educational record.“safety and security” means that it has been adequately tested.“school” means an entity that provides education to children in the UK including early years providers, nursery schools, primary schools, secondary schools, sixth form colleges, city technology colleges, academies, free schools, faith schools, special schools, state boarding schools, and private schools.”Member's explanatory statement
This amendment proposes a statutory Code of Practice on Children and Education to ensure that children benefit from heightened protections when their data is processed for purposes relating to education. Common standards across the sector will assist schools in procurement.
Baroness Kidron (CB)
My Lords, Amendment 44 in my name and those of the noble Lords, Lord Russell and Lord Clement-Jones, and the noble Baroness, Lady Harding, proposes a statutory code of practice on children’s education to ensure that children benefit from heightened protections when their data is processed for the purposes of relating to education.
My understanding is that, when the Minister stands up, he will tell us that the Secretary of State is going to write to the ICO and require him to either write such a code or, if it is more practical, extend the AADC to cover educational settings. The either/or is because Government say the ICO is undertaking a consultation on edtech and DSIT is doing a consultation on AI, both of which have ramifications for children’s data at school.
Rather than make the argument for the amendment as written, I shall put on record for the department and the ICO the expectations of such a code. I hope that the Minister concurs with this list and that he will ensure that the ICO works with me and expert colleagues in the field to look at and respond to the evidence and ensure that the code addresses our concerns.
The code must apply to education provided in school settings but also outside the classroom—for example, when children use edtech products to complete homework set by school or for independent learning. The code must consider all aspects of the provision of education, including safeguarding and administration, as well as learning. The code should take as a starting point that children merit heightened protections and consider the needs of children at different ages and stages. The code should provide specific guidance on profiling, including predictions that may impact on children’s educational opportunities or outcomes. The code should require the ICO or the DfE to work with third parties to develop certification and accreditation schemes to support educators and parents in choosing products and services that are safe and private and improve learning outcomes. Lastly, in drawing up the code, the ICO must consult with children, parents, educators, devolved Governments and industry.
I also want to put on record that “school” means an entity that provides education to children in the UK. Importantly, that includes early-years providers, nursery schools, primary schools and so on, because often early years are left out of this equation.
Baroness Harding of Winscombe (Con)
My Lords, I support the amendment in the name of the noble Baroness, Lady Kidron, to which I have added my name. I will speak briefly because I wish to associate myself with everything that she has said, as is normal on these topics.
Those of us who worked long and hard on the Online Safety Act had our fingers burnt quite badly when things were not written into the Bill. While I am pleased—and expect to be even more pleased in a few minutes—that the Government are in favour of some form of code of conduct for edtech, whether through the age-appropriate design code or not, I am nervous. As the noble Baroness, Lady Kidron said, every day with Ofcom we are seeing the risk-aversion of our regulators in this digital space. Who can blame them when it appears to be the flavour of the month to say that, if only the regulators change the way they behave, growth will magically come? We have to be really mindful that, if we ask the ICO to do this vaguely, we will not get what we need.
The noble Baroness, Lady Kidron, as ever, makes a very clear case for why it is needed. I would ask the Minister to be absolutely explicit about the Government’s intention, so that we are giving very clear directions from this House to the regulator.
Lord Clement-Jones (LD)
My Lords, it is a pleasure to follow the noble Baroness, Lady Harding. I have added a few further words to my speech in response, because she made an extremely good point. I pay tribute to the noble Baroness, Lady Kidron, and her tenacity in trying to make sure that we secure a code for children’s data and education, which is so needed. The education sector presents unique challenges for protecting children’s data.
Like the noble Baronesses, Lady Kidron and Lady Harding, I look forward to what the Minister has to say. I hope that whatever is agreed is explicit; I entirely agree with the noble Baroness, Lady Harding. I had my own conversation with the Minister about Ofcom’s approach to categorisation which, quite frankly, does not follow what we thought the Online Safety Act was going to imply. It is really important that we absolutely tie down what the Minister has to say.
The education sector is a complex environment. The existing regulatory environment does not adequately address the unique challenges posed by edtech, as we call it, and the increasing use of children’s data in education. I very much echo what the noble Baroness, Lady Kidron, said: children attend school for education, not to be exploited for data mining. Like her, I cross over into considering the issues related to the AI and IP consultation.
The worst-case scenario is using an opt-in system that might incentivise learners or parents to consent, whether that is to state educational institutions such as Pearson, exam boards or any other entity. I hope that, in the other part of the forest, so to speak, that will not take place to the detriment of children. In the meantime, I very much look forward to what the Minister has to say on Amendment 44.
Viscount Camrose (Con)
My Lords, I thank the noble Baroness, Lady Kidron, for moving her amendment. Before I begin, let me declare my interest as a recently appointed director of Lumi, an edtech provider—but for graduates, not for schools.
AI has the potential to revolutionise educational tools, helping teachers spend less time on marking and more time on face-to-face teaching with children, creating more innovative teaching tools and exercises and facilitating more detailed feedback for students. AI presents a real opportunity to improve education outcomes for children, opening more opportunities throughout their lives. There are deeply compelling promises in edtech.
However—there is always a however when we talk about edtech—creating and using AI education tools will require the collection and processing of children’s personal data. This potentially includes special category data—for instance, medical information pertaining to special educational needs such as dyslexia. Therefore, care must be taken in regulating how this data is collected, stored, processed and used. Without this, AI poses a major safeguarding risk. We share the concerns of the noble Baroness, Lady Kidron, and wholeheartedly support the spirit of her amendment.
We agree that it is prudent to require the ICO to make a code of practice on children’s data and education, and I particularly welcome a requirement on the ICO to consult with and involve parents. Parents know their children best, needless to say, and have their best interests at heart; their input will be critical in building trust in AI-assisted educational tools and facilitating their rollout and benefits for children throughout the UK.
However, as I said earlier at Report—and I shall not repeat the arguments now—we have concerns about the incorporation of international law into our law, and specifically, in this instance, the UN Convention on the Rights of the Child. We cannot therefore support the amendment as drafted. That said, we hope very much that the Government will listen carefully to the arguments raised here and take steps to introduce appropriate safeguards for children and young people in our data legislation regime. I suspect that most parents will greatly welcome more reassurance about the use of their children’s data.
Lord Vallance of Balham (Lab)
I thank the noble Baroness, Lady Kidron, for raising this important topic today, and thank noble Lords for the impassioned speeches that we have heard. As my noble friend Lady Jones mentioned in Committee, the ICO has been auditing the practices of several edtech service providers and is due to publish its findings later this year. I am pleased to be able to give the noble Baroness, Lady Kidron, a firm commitment today that the Government will use powers under the Data Protection Act 2018 to require the ICO to publish a new code of practice addressing edtech issues.
The noble Baronesses, Lady Kidron and Lady Harding, both raised important points about the specificity, and I will try to address some of those. I am grateful to the noble Baroness for her suggestions about what the code should include. We agree that the starting point for the new code should be that children merit special protection in relation to their personal data because they may be less aware of the risks and their rights in relation to its processing. We agree that the code should include guidance for schools on how to comply with their controller duties in respect of edtech services, and guidance for edtech services on fulfilling their duties under the data protection framework—either as processors, controllers or joint controllers. We also agree that the code should provide practical guidance for organisations on how to comply with their so-called:
“Data protection by design and by default”
duties. This would help to ensure that appropriate technical and organisational measures are implemented in the development and operation of processing activities undertaken by edtech services.
The noble Baroness suggested that the new code should include requirements for the ICO to develop the code in consultation with children, parents, educators, children’s rights advocates, devolved Governments and industry. The commissioner must already consult trade associations, data subjects and persons who appear to the commissioner to represent the interest of data subjects before preparing a code, but these are very helpful suggestions. The development of any new code will also follow the new procedures introduced by Clause 92 of this Bill. The commissioner would be required to convene an expert panel to inform the development of the code and publish the draft code. Organisations and individuals affected by the code would be represented on the panel, and the commissioner would be required to consider its recommendations before publishing the code.
Beyond this, we do not want to pre-determine the outcome of the ICO’s audits by setting out the scope of the code on the face of the Bill now. The audits might uncover new areas where guidance is needed. Ensuring a clear scope for a code, grounded in evidence, will be important. We believe that allowing the ICO to complete its audits, so that the findings can inform the breadth and focus of the code, is appropriate.
The ICO will also need to carefully consider how its codes interrelate. For example, the noble Baroness suggested that the edtech code should cover edtech services that are used independently by children at home and the use of profiling to make predictions about a child’s attainment. Such processing activities may also fall within the scope of the age-appropriate design code and the proposed AI code, respectively. We need to give the ICO the flexibility to prepare guidance for organisations in a way that avoids duplication. Fully understanding the problems uncovered by the ICO audits will be essential to getting the scope and content of each code right and reducing the risk of unintended consequences.
To complement any recommendations that come from the ICO and its audits, the Department for Education will continue to work with educators and parents to help them to make informed choices about the products and services that they choose to support teaching and learning. The noble Baroness’s suggestion that there should be a certification scheme for approved edtech service providers is an interesting one that we will discuss with colleagues in the Department for Education. However, there might be other solutions that could help schools to make safe procurement decisions, and it would not be appropriate to use the ICO code to mandate a specific approach.
The point about schools and the use of work by children is clearly important; our measures are intended to increase the protections for children, not to reduce them. The Government will continue to work closely with noble Lords, the Department for Education, the ICO and the devolved regions as we develop the necessary regulations following the conclusion of the ICO audit. I hope that the noble Baroness is pleased with this commitment and as such feels content to withdraw her amendment.
Baroness Kidron (CB)
May I ask for a commitment from the Dispatch Box that, when the order is complete and some of those conversations are being discussed, we can have a meeting with the ICO, the DfE and noble Lords who have fought for this since 2018?
Lord Vallance of Balham (Lab)
I am very happy to give that commitment. That would be an important and useful meeting.
Baroness Kidron (CB)
I thank the Minister and the Government. As I have just said, we have been fighting for this since 2018, so that is quite something. I forgot to say in my opening remarks that edtech does not, of course, have an absolute definition. However, in my mind—it is important for me to say this to the House—it includes management, safety and tech that is used for educational purposes. All those are in schools, and we have evidence of problems with all of them. I was absolutely delighted to hear the Government’s commitments, and I look forward to working with the ICO and the department. With that, I beg leave to withdraw.
Baroness Kidron
“(1) In the 2018 Act, in section 139, after subsection (2) insert—“(2A) The report must include an assessment of the Commissioner’s performance of the duties assigned to it by regulations under section (Enforcement) of the Data (Use and Access) Act 2025.””
Baroness Kidron (CB)
In moving Amendment 44A, I shall also speak to Amendments 61 to 65 in my name and the names of the noble Lords, Lord Stevenson and Lord Clement-Jones, and my noble friend Lord Freyberg. I registered my interests in Committee, but I begin by restating that I am a copyright holder. I am married to a copyright holder, and I have deep connections with many in the creative communities who are impacted by this issue. I am also an adviser to the Institute for Ethics in AI at Oxford, and I have the pleasure and privilege of working alongside dozens of people whose businesses and academic interests relate solely to AI.
Until last night, I had a very technical argument about the amendments—about what they would do and how they would work. But I sat in the Gallery of the other place for several hours last night to listen to the debate on the creative industries, and I listened virtually to what I did not see from the Gallery, and it really made me reconsider my approach today. It was striking that, whether on the Green, DUP, Liberal Democrat or Conservative Benches, or the Government’s own Back Benches, the single biggest concern in a debate that ran for hours, with many speakers, was the question of copyright and AI. Indeed, it figured in all but two or three speeches. Moreover, as I sat in the Gallery and people started to read from the Times, the Mail, Politico and the tech blogs, an increasing flow of MPs, many on the Government’s own Benches and some actually in the Government, texted me to say that their leadership was wrong and they hoped this fight would be won for the UK’s creative industries.
It is a very great privilege to be on these Benches and never have to vote against the Whip. But I say to my friends and colleagues on all sides that, as we debate today, hundreds of organisations and many individual rights holders are watching. They are watching to see what this House will do in the face of a government proposal that will transfer their hard-earned property from them to another sector without compensation, and with it their possibility of a creative life, or a creative life for the next generation.
The Government are doing this not because the current law does not protect intellectual property rights, nor because they do not understand the devastation it will cause, but because they are hooked on the delusion that the UK’s best interests and economic future align with those of Silicon Valley. The Minister will say to the House that a consultation is ongoing and we should wait for the results. This was the same line the Minister in the other place, Chris Bryant, took last night; he said that his door and his mind were open. If that is the case, I would like to know why the honourable Dame Caroline Dinenage, the chair of the Commons Select Committee, said she felt “gaslit” by Ministers and the Secretary of State.
I would also like to know why the Minister in charge of the Bill in the other place has refused a meeting with me twice and why the creative industries say that they get blandishments from a junior Minister while the AI companies get the undivided attention of the Secretary of State. Most importantly, the assertion that the consultation is open and fair is critically undermined because it was launched with a preferred option. For the record, the Government’s preferred option is to give away the property rights of those who earned them on the promise of growth, growth, growth to the nation. Unfortunately, the Government cannot say to whom that growth will accrue or how much it will be. But the one thing they are absolutely sure of—Government, Opposition, AI companies and those whose property rights the Government are giving away—is that it will not accrue to the creative industries.
We have before us the most extraordinary sight of a Labour Government transferring wealth directly from 2.4 million individual creatives, SMEs and UK brands on the promise of vague riches in the future. Before I turn to the Opposition—which I will—I make it clear that there is a role in our economy for AI, there is a role in our economy for companies headquartered elsewhere, there is a role in our economy for new AI models and there is an opportunity of growth in the combination of AI and creative industries. But this forced marriage, on slave terms, is not it.
We have the Government, putting growth front and centre, stunting one of their most lucrative industries, and the equally extraordinary sight of the Conservative Opposition for the most part sitting on their hands, against the wishes of many in their tribe, putting party ahead of country because they prefer to have proof of the Government’s economic incompetence rather than protect the property rights of their citizens and creative industries.
Let me kill a few sacred cows. Judges, lawyers and academics all agree that the law on copyright is clear, and the ICO determination that copyright stands in spite of the advances of AI is also clear. Ministers choosing to mirror the tech lobbyist language of uncertainty rather than defending the property rights of citizens and wealth creators is bewildering. They are not quoting the law or the experts; they point at the number of court cases as proof of lack of clarity. But I am at a loss, since a person who has had their goods stolen relying on their legal rights seems to be a sign that the law is clear.
However, given the scale of the theft and the audacity of the robber barons, they should be able to turn to the Government for protection—rather than suggesting that we redefine the notion of theft. The Minister, the honourable Chris Bryant, said last night that change is needed and that we cannot do nothing, and the unified voices of the creative industries—from the biggest brands such as Sony and Disney to newspapers such as the Telegraph, the FT and the Guardian, and those who represent publishers, musicians or visual artists and the artists themselves—all agree. Nobody is saying that we should leave it as it is. They are saying, “Make the copyright regime fit for the age of AI”—which is exactly what the amendments do.
The amendments surface the names and owners of the crawlers that currently operate anonymously, record when, where and how IP is taken and, crucially, allow creators to understand what has been taken so that they can seek redress. This is not new, burdensome regulation—and it is certainly less regulation than the incredibly complex, costly and ultimately unworkable opt-outs or rights reservation mechanism of the preferred option of the consultation. All that creators are asking for is the enforcement of an existing property right. And when I say “creators”, I am not talking about 19th-century aristocrats occupying the time between lunch and dinner. In spite of the immense pleasure and extraordinary soft power that the creative industries bring, it is a hard-nosed, incredibly competitive and successful sector. It takes training, skill and talent to pursue what is often an insecure career, in which the copyright of career highs pays for the costs of a freelance life and the ongoing costs of making new work.
In the other place last night, the Minister talked about transparency without reference to the fact that the tech lobby is already on manoeuvres, saying that transparency must not be too detailed because it will impact on their IP. Creatives’ IP is being given away for literally nothing, but AI companies wish to hide behind the IP of products that are simply impossible to make without the raw material of that data. So will the Minister explain why the Government pay for software licences, why our NHS pays for drugs and why members of the Cabinet pay for branded clothes, yet the Government think that the creative industries should invent something for nothing?
The Government say that doing nothing is not an option. I agree—they could call a halt to the theft, instruct the ICO and the IPO now or even do an impact assessment of their preferred policy. This is the most extraordinary thing. They have a preferred way forward but, when I asked, they had to admit that they had not done an economic impact assessment, including of job displacement, even while acknowledging that job losses were inevitable. The Prime Minister cited an IMF report that claimed that, if fully realised, the gains from AI could be worth up to an average of £47 billion to the UK each year over a decade. He did not say that the very same report suggested that unemployment would increase by 5.5% over the same period. This is a big number—a lot of jobs and a very significant cost to the taxpayer. Nor does that £47 billion account for the transfer of funds from one sector to another. The creative industries contribute £126 billion per year to the economy. I do not understand the excitement about £47 billion when you are giving up £126 billion.
The Government have a preferred option, but they have no enforcement mechanism. They have a preferred option, but no protocols to make it work. They have a preferred option but, by their own admission, no idea how an individual artist could hope to chase down dozens, hundreds or maybe thousands of AI companies to opt out or trace their work and rights. They have a preferred option, which is to give away other people’s livings and their vast contribution to the Treasury, and with that the jobs, joy and soft power of our creative industries that the country relies on globally.
There are plenty of great ideas about how creativity could add GDP to the country, but that is not the demand that the Government have made of the sector. I will not quote most of those to whom I have spoken in the last week, because the language is unparliamentary. However, I will pass on the deep regret of Lord Lloyd- Webber that he is no longer in his place to stand by me today. I will also pass on the words of a Labour donor, who said that this was economically illiterate.
Lord Black of Brentwood (Con)
My Lords, I strongly support Amendments 44A and 61 to 65 in the name of the noble Baroness, Lady Kidron, who is to be congratulated on raising this incredibly important and timely subject, her doughty leadership on these issues, and an absolutely first-class speech. I regret that I was unable to take part in Committee.
I will talk about the profound significance of these amendments for the media, although they are equally important across all the creative industries, which I know we will hear about. I declare my interest as deputy chairman of the Telegraph Media Group and note my other interests in the register.
The key point is that an effective, enforceable and comprehensive copyright regime is absolutely fundamental to the sustainability of a free, independent media. Without it, the media cannot survive. Publishers have to invest huge amounts of money in high-quality journalism, investigative reporting, world-class comment and content. That they can do so is because copyright laws protect this content, ensuring the commercial viability of publishers —print and broadcast—as well as the livelihoods of individual journalists and freelancers.
We talk a lot in this House about the threats to the free media resulting from digital, which smashed to pieces the business model that once sustained publishing and quality journalism. Publishers from across the spectrum have found innovative ways to adapt to that and produce new paths to commercial success to maintain their investment in independent investigation and reporting, which is the very lifeblood of a democracy. Parliament, with cross-party support, has assisted through the Digital Markets, Competition and Consumers Act, which establishes a tough competition regime to control the untrammelled power of vast, unaccountable platforms. But just when the media has been successfully adapting to the new world, along comes a far graver threat—AI—and government proposals flying in the face of the DMCC Act to weaken, through a sweeping text and data-mining exception, the UK’s gold-standard copyright regime, which is the absolute bedrock of quality, independent, regulated media.
I know how strongly noble Lords opposite and from across the House value the fundamental role our free media plays in our democratic society, because without it, all of our freedom is in peril. The Bill and the connected government consultation will either help it or kill it; I am afraid it is as stark as that. Of course I welcome the Government’s apparent aim to provide transparency and facilitate licensing, but their preferred option of an exception—on which there has been no impact assessment, as the noble Baroness, Lady Kidron, said—is fundamentally flawed and wholly impractical.
Instead, we need with these amendments to ensure three things happen to make investment in journalism possible through an effective legal regime protecting copyright, creativity and innovation. That is transparency, the power of control over how news content is used, and fair remuneration. Only that will drive the dynamic licensing market that is necessary to ensure both the media and AI sectors flourish and grow. These imaginative amendments will achieve that by expanding UK copyright law to cover any AI model linked to the UK, compelling, in a strikingly simple way, AI firms to provide information about how they scrape content and what they scrape, and ensuring we have the enforcement powers necessary to make big tech—which is so adept at arrogantly ignoring what it does not like and what this House says—take notice. That is why I will support these amendments, and I am proud to do so.
I must add that I am deeply disappointed that the long-standing commitment of my party to upholding the values of a free press and supporting the sustainability of the British media has not extended to formal support for these amendments. It is incredibly short-sighted.
If these amendments pass, as I hope they will, this legislation can complete a landmark trio of laws—with the Online Safety Act and the DMCC Act—to make the giant platforms regulated and accountable. Like others in this debate, I want to make it clear that I support the noble Baroness’s absolutely vital amendments not because I am anti-AI but because I am pro free independent media, pro the creativity which fuels it, and pro the commercial foundations that support it.
If these amendments are successful, we can create a situation where the tech and AI sectors can flourish alongside the creative industries, thereby powering economic growth between them. Because of the vital role the media plays in our democracy, I genuinely believe that this is one of the most crucial debates that we will have in this Parliament. I have this stark warning: without adequate transparency, control and reward, publishers will no longer be able to invest as they have in the creation of the original, high-quality investigative content on which our democracy and the accountability of those in power are based. Without that, our democracy will die in the dark at the hands of Silicon Valley, as we become dependent on the morass of fake news and social media clickbait. I strongly urge all noble Lords to support the amendments.
Lord Stevenson of Balmacara (Lab)
I am grateful to the noble, Lord Black, for daring to respond to the wonderful speech that opened the debate; I thought I might come in immediately afterwards, but I was terrified by it, so I decided that I would shelter on these Benches and gather my strength before I could begin to respond.
I feel that I have to speak because I am a member of the governing party, which is against these amendments. However, I have signed up to them because I have interests in the media—which I declare; I suppose I should also declare that I have a minor copyright, but that is very small compared with the ones we have already heard about—and because I feel very strongly that we will get ourselves into even more trouble unless action is taken quickly. I have a very clear view of the Government’s proposals, thanks to a meeting with my noble friend the Minister yesterday, where he went through, in detail, some of the issues and revealed some of the thinking behind them; I hope that he will come back to the points he made to me when he comes to respond.
There is no doubt that the use of a copyright work without the consent of the copyright owner in the United Kingdom is an infringement, unless it is “fair dealing” under UK copyright law. However, because of the developments in technology—the crawlers, scrapers and GAI that we have been hearing about—there is a new usage of a huge number of copyright works for the training of algorithms. That has raised questions about whether, and if so how, such usage has to be legislated for as “fair dealing”—if it is to be so—or in some other way, if there is indeed one.
It is right, therefore, for the Government to have required the IPO to carry out a consultation on copyright and AI, which we have been talking about. However, given the alarm and concern evident in the creative sector, we certainly regret the delay in bringing forward this consultation and we are very concerned about its limited scope. Looking at it from a long way away, it seems that this is as much a competition issue as it is a copyright issue. It seems to me and to many others, as we have heard, that the IPO, by including in the consultation document a proposed approach described as an “exception with rights reservation”, has made a very substantial mistake.
This may just be a straw-person device designed to generate more responses, but, if so, it was a bad misjudgement. Does it not make the whole consultation exercise completely wasteful and completely pointless to respond to? When my noble friend the Minister comes to respond, I hope that he, notwithstanding that proposed approach, will confirm that, as far as the Government are concerned, this is a genuine consultation and that all the possible options outlined by the IPO—and any other solutions brought forward during the consultation—will be properly considered on their merits and in the light of the responses to the consultation.
What the creative industries are telling us—they have been united and vehement about this issue, as has already been described, in a way that I have never seen before—is that they must have transparency about what material is being scraped, the right to opt in to the TDMs taking place and a proper licensing system with fair remuneration for the copyright material used. The question of whether the GAI developers should be allowed to use copyright content, with or without the permission of the copyright owner, is a nuanced one, as a decision either way will have very wide-ranging ramifications. However, as we have heard, this issue is already affecting the livelihood of our creative sector—the one that, also as we have heard, we desperately need if we are to support a sustainable creative economy and provide the unbiased information, quality education and British-based entertainment that we all value and want to see flourish.
We understand the need to ensure that the companies that want access to high-quality data and copyright material to train their AI models respect, and will be happy to abide by, any new copyright or competition regulations that may be required. However, the proposals we have heard about today—the ones that would come from the consultation, if we have to delay—will probably be very similar to the amendments before the House, which are modest and fair. We should surely not want to work with companies that will not abide by such simple requirements.
Viscount Colville of Culross (CB)
My Lords, I support Amendments 44A and the consequential amendments in this group in the name of my noble friend Lady Kidron, whose speech has, I think, moved the whole Committee across all Benches.
Baroness Stowell of Beeston (Con)
My Lords, this topic understandably arouses a lot of emotion, but it is a difficult one to resolve satisfactorily. The Communications and Digital Committee has examined the challenge of copyright in an AI world from several angles over the last couple of years, and our conclusion as a result of that work is that the tech and creative industries need to find a mutually beneficial way forward on copyright because, in this new world, they are relying on each other to succeed. The AI models and services that the tech platforms are building for consumer and commercial use, such as Chat GPT, Claude, Llama, Grok and others yet to emerge, have an insatiable and ongoing appetite for new, quality data and original content, and it is a continual supply of that content which will make them yet more sophisticated, and how each platform operator will compete in the race to dominate. What I have just described is also why the Government should not pursue copyright laws that primarily benefit foreign tech firms that are prepared to pay vast sums for energy, computing facilities and staff, but not, as we have heard, for data.
During our inquiry on large language models, we heard contrasting interpretations of existing copyright law. Our view is that the application of copyright law in the context of AI is complex, but the principles remain clear. What is needed is a framework that aligns incentives between content creators and AI firms to help them strike mutually beneficial deals. In our reports, we have called for that framework to include: a transparency mechanism to allow rights holders to check for infringements; much better technical and legal enforceability; and measures to support a new market in responsible AI training data.
I am pleased to say that the amendments in this group from the noble Baroness, Lady Kidron, and my noble friend Lord Camrose, reflect these objectives, but I would like to make some further comments on the way forward. While the Communications and Digital Committee has welcomed the Government’s copyright consultation as a step forward in making progress on this issue, we have cautioned strongly against adopting a flawed opt-out regime comparable to the version operating in the EU. Indeed, Matt Clifford’s recommendation that we adopt that EU model is the only part of his excellent AI Opportunities Action Plan that I disagree with.
That said, ensuring the UK remains competitive in this global market is vital, and some might argue, contrary to what the noble Baroness has said, that the arrival of DeepSeek brings that into sharper focus. It is why I suspect the Government prefer an opt-out model. What we as a committee argue is that if, after their consultation, the Government decide to go ahead with an opt-out model, it must include the transparency, technical and stronger enforcement mechanisms I have already outlined and that are reflected in these amendments. What is important therefore to understand is that the amendments in this group could apply to an opt-in or opt-out model; they are flexible.
Whichever route the Government take, it is essential that, alongside the creative industries that we have heard are so important to our economy and society, the conditions are set for our domestic AI tech sector to scale and compete. UK spin-out and start-up innovators can seriously challenge existing dominant tech firms with specialist AI models and new services and applications. Not only must our copyright regime not be a barrier to entry for UK start-ups seeking to scale but the UK needs a workable framework to incentivise a dynamic licensing market to promote and seize the economic value of the high-quality data this nation holds. That could make this country an attractive AI training destination for all AI models.
Sorting all this out is urgent, and it is not easy. I worry that if we do not resolve it soon, the UK will be defined by our concerns about copyright to our detriment in the AI global race. The Government cannot wait for the courts to find a way forward; they must act swiftly once the consultation is over. This Bill is the right vehicle for doing so, and because it is what we call a Lords starter, it is yet to go through all the Commons stages; we are at the start of this process, and the Government have time.
For all the reasons I have outlined, if the noble Baroness divides the House, I will support her in voting for these amendments.
Lord Freyberg (CB)
My Lords, as one of the supporters of these amendments, I support the amendment so expertly moved by the noble Baroness, Lady Kidron. I declare my interest as someone with a long-standing background in the visual arts and as an artist member of DACS, the Design and Artists Copyright Society.
I thought it would be helpful to highlight and focus on just one element of the noble Baroness’s speech, specifically the issue of transparency. Here, there is a theme developing throughout the House on this issue. One of the biggest obstacles to ensuring fair pay for creators is that AI companies have not been transparent about what works. They have been used for training AI models. Tech companies have rebuffed transparency measures because they say that this will reveal trade secrets. While I understand that business need, it cannot come at the expense of creators. There is a way in which to make transparency measures work for both business and creators, giving access to creator representatives about the use of their work on a confidential basis to facilitate copyright licensing.
This is, after all, what data rights have done for millions of people, giving them the agency to know when their data has been used. It is entirely reasonable and possible for transparency measures to be upheld and properly enforced. Therefore, considering the significance of this issue, I should be very grateful if the Minister will confirm that transparency measures proposed in the copyright and AI consultation will not be conditional on a reservation rights system.
The Earl of Clancarty (CB)
My Lords, I rise briefly in support of my noble friend Lady Kidron’s important amendments. I declare an interest as a visual artist.
I want to pick up on the language that Rachel Reeves used in conversation with Laura Kuenssberg in her Sunday programme, when she talked about getting the balance right. It needs to be emphasised that it is not a question of balance between the tech companies and the creative industries but a question about the use of data, and the consideration of the origin of that data should be central to a Bill about access to data. That is critical. It is perhaps ironic that at the heart of this there is a void, which is the lack of data about data, as my noble friend Lord Colville showed clearly in his speech. The creative industries themselves successfully use AI. As Paul McCartney pointed out in the same Laura Kuenssberg programme, in his case he did so by actively seeking and obtaining permission for the use of data, as everyone should. These amendments are wholly reasonable and do what the creative industries are asking for. If the Government do not accept them, I shall certainly vote for them.
Baroness Harding of Winscombe (Con)
My Lords, I also support these amendments so brilliantly introduced by the noble Baroness, Lady Kidron. As a just-finishing member of the Communication and Digital Committee, I, too, associate myself with everything that our departing chair has just said so ably.
I am a lover of the book Why Nations Fail, written by two Nobel laureates. It charts how countries succeed and fail in adopting technology. There are two important lessons in that book. The first is that one must not turn one’s back on the technology. As we consider this very difficult issue, it is important to say that those of us in favour of these amendments are not trying to be the German boatman sinking the first steamboat, the Ottoman Empire turning its back on the printing press or the hand knitters objecting to knitting machines in Elizabethan times. We embrace AI. It will transform society for the good. That is the first important point.
The second lesson that Why Nations Fail teaches us is that, even as one embraces technology, the rule of law, property rights and giving people certainty over what they create and own are one of the other essential ingredients to success in harnessing the benefits of technology. That is why this issue matters so much. I, too, rewrote my brief remarks overnight on the back of the DeepSeek launch yesterday. I was struck by the panic among those in Silicon Valley, who thought, “Oh, my God. Is it possible that the Chinese have stolen open AI’s IP in order to create a better product?” Gosh, has Silicon Valley for a moment begun to feel what creative copyright owners have been feeling for several years? Actually, the valley is learning that certainty of copyright is an important part of driving growth in an adoption of technology.
Another interesting thing happens when you ask DeepSeek what happened in Tiananmen Square in 1989. It will not tell you, so it is clear that these supposed black boxes can be quite specific about what they include and exclude. That gives me confidence, as a non-technologist, that if we give the technology companies the challenge of creating simple mechanisms for copyright owners, they will jolly well do it, because they can definitely do it when they want to exclude content from models today.
The Earl of Devon (CB)
My Lords, this is the first time that I have spoken on the Bill. Given the excellence of the contributions to date, I have barely felt the need to. We are indebted to the tireless work, rhetorical skill and legislative expertise of the noble Baroness, Lady Kidron, and the noble Lords, Lord Freyberg, Lord Clement-Jones and Lord Stevenson. I thank them all.
I wholly support the premise of and intentions behind these amendments, although they would not strictly be necessary if we could just be patient and let the law of copyright work as it should and as it has done for over 300 years. Given the Government’s consultation on AI and copyright, and the intense pressure that they have put upon themselves to convert the UK into an engine of economic growth at all costs—sustainable or not—this is an issue of paramount and urgent importance to our creative future and to intellectual property. I offer a short contribution from my experience; after such a debate, I hope it will be additive and not repetitive.
First and foremost, I am an art historian—a cack-handed artist long astounded by the creative genius of our island nation and particularly its flourishing globalisation in the 18th and 19th centuries. Much of that soft power came through the deployment of copyright —first legislated by this Parliament in the Statute of Anne 1709. We invented copyright; it is our duty to preserve and enhance it, not to let it be sacrificed on the altar of economic growth in an unsustainable race against China and America to machine-learned dominance at the expense of human creativity.
Copyright was the child of the booksellers, the purveyors of the printed word through which knowledge spread around the world. Its first skirmishes were jurisdictional, with Scottish booksellers seeking to flood the English market, in breach of copyright, during the 1720s and 1730s. They argued that the law did not apply to them, as their processes—their printing presses—were outside the jurisdiction. Does that sound familiar? The same arguments are deployed today by the foreign generative-AI companies training their LLMs offshore to be deployed onshore. We have seen it all before: copyright succeeded then and will succeed now.
From its printed beginnings, copyright expanded to cover all new media. William Hogarth famously lobbied Parliament to apply copyright to engravings, allowing him to control distribution of his remorseless satire. He was followed soon by Gillray, Punch and our proud heritage of ridicule. Copyright then absorbed the daguerreotype and photography, the phonograph and recorded sound, the computer and, of course, the internet—when avaricious news aggregators such as Google were brought to heel and properly licensed. The suggestion that copyright is not fit for purpose and is unable to address novel technologies—not that much is new in AI—is itself ridiculous. Copyright can and will regulate AI; we just need to give it and our common-law system of justice the time to make the right decisions.
Secondly, I am an IP litigator qualified in both England and California. In that capacity, I am a member of the IP APPG that successfully lobbied the previous Government against the introduction of text- and data-mining exceptions that the AI developers so desperately seek. It is thus disappointing that the Labour Government now seek to revisit exactly the same ground and fight exactly the same battle. I am extremely grateful to the support of briefings provided by the Creative Rights in AI Coalition, and to the multitude of creative talent—both household names and those less celebrated—who have spoken out over many months in support of copyright. Their voices must be heard and it is for them that we fight.
However, it is not just the creative industries that rely upon copyright, as we have heard; it is an essential tool in support of the digital revolutions of recent decades. When in California and ever since, I was privileged to represent a number of the world’s leading technology and digital content companies. All were very happy with the fitness for purpose of copyright to protect their source code, algorithms, graphic user interfaces and digital content, as licensed by the end-user licence agreements to which we are all party. Somehow that copyright is fit for purpose and is readily enforceable in other jurisdictions. The means of enforcing it are fully sufficient and we should not believe protestations to the contrary.
In both the US and UK, major AI copyright disputes are making their way through the courts. We will have an authoritative decision by the summer. We should not rush to legislate in a judicial vacuum before really understanding how the existing law will be applied. As the noble Baroness, Lady Jones of Whitchurch, confirmed to me in Oral Questions in November,
“the Government are clear that copyright law must be respected when content is used to train AI models. If copies are made of protected work, licences must be required from the copyright owner unless a specific copyright exception applies”.—[Official Report, 11/11/24; col. 1570.]
If the courts recognise the protection of copyright and the lack of applicable exceptions, injunctive and monetary relief will follow and the market will function. Insurance policies will not cover corporates that deploy AI that is not transparent in its training processes, and such tools will no longer be offered to customers.
I am also confident that market regulators will be interested in investigating how technology giants did not unduly leverage their dominance in search and social media markets to compete unfairly with the creative industries and the human beings upon whose unlicensed endeavours their soaring profits were built; in other words, the market and its existing controls will function, licences will be issued and human creative endeavour will be recognised and rewarded. To the extent that these amendments make that more likely, they have my full support.
Finally, I note my interest as proprietor of a live music, events and heritage venue. I finish by recognising the one silver lining of this existential saga. It is to remind us, in case we have forgotten, that the best way to enjoy creative human endeavour is in person, not through a digital device: listening live to an artist, sitting in a theatre or visiting an art gallery. Artists from William Blake to Neil Young would agree that the “dark Satanic Mills” of digitally generated and digitally accessed art should never replace human experience. Likewise, machine learning should never replace human creativity.
The Earl of Dundee (Con)
I too support this group of amendments proposed by the noble Baroness, Lady Kidron, and others.
It surely goes without saying that our United Kingdom copyright law has to counter the increasing theft of intellectual property by artificial intelligence companies.
As here advocated, we should provide transparency criteria that would allow copyright holders to identify when and from where their work has been taken. I am sure that the Minister agrees with that aim and is well aware of the strong human rights back-up support available to us from the 46 states affiliation of the Council of Europe, of which the United Kingdom remains a prominent member. I am a recent chairman of its education committee.
As many of your Lordships know, first and foremost, Article 8 of the European Convention on Human Rights protects the right to privacy, including of personal data. Article 1 of its initial protocol protects property rights, including intellectual property rights and copyright.
Secondly, Article 5 of the Council of Europe Convention on Cybercrime prohibits system interference by, for example, the transmission of computer data; while its Article 10 stipulates:
“Offences related to infringements of copyright and related rights”.
Thirdly, Article 11 of the 2024 Council of Europe Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law safe- guards privacy and personal data.
Regarding copyright protection in recent centuries, we can be justly proud of our own United Kingdom record, beginning, as has already been said, with the Statute of Anne 1710, which granted legal protection to publishers of books.
In the interests of those both here and abroad, we must uphold the high standards of that tradition. The United Kingdom should guide this good practice. Adopting these amendments is a clear example of so doing.
Lord Berkeley of Knighton (CB)
My Lords, I declare my interests as a composer and a copyright holder. I salute the speech of my noble friend Lady Kidron for its strength and accuracy. I too feel that there should be an impact assessment on such important matters.
If noble Lords will spare me one minute, it might be worth mentioning a little bit of background. The record industry more or less ceased to exist when the internet and streaming came along. Of course, they brought enormous advantages, as I am sure AI will, but there was a huge cost. One reason why many great big pop groups have gone on tour in the last few years is that they are not earning money from records. Although there is an interest for the public to gain and disseminate more information, there is a cost for the basic product. Those records brought in money that paid for performers to be employed in studios to make new records. It is a vicious circle: once you stop that income coming in, you stop creativity in its tracks.
We heard Sir Paul McCartney mentioned, and in one sense I am representing the more contemporary classical side. But I too have worked on the pop side, and I can I tell you that a record that we made for medics in Ukraine, with the help of no lesser figures than Neil Tennant and David Gilmour, has had 400,000 downloads so far, yet will produce only about £200 to go to Ukraine. That gives you some idea of how the shift in finance has changed in respect of what records bring in. Of course we cannot go backwards—this is progress—but we do have to be careful. We should think about the example that that sets.
As I said, Paul McCartney was mentioned and, over the weekend, Sir Elton John summed up the feelings of many composers. I am sure he would not mind my representing his words to you here. He said:
“Without thorough and robust copyright protection that allows artists to earn hard-fought earnings from their music, the UK’s future place on the world stage as a leader in arts and popular culture is under serious jeopardy. It is the absolute bedrock of artistic prosperity, and the country’s future success in the creative industries depends upon it”.
I think those words would be reiterated by every composer and creator in this country.
I will make one final point. In some ways, this is not a party-political issue but a cross-party one. It is our creativity that is at stake here. I have spoken in the past about music: the problems with touring and all the things that have hemmed in creativity. We have heard about the £126 billion that the creative industries bring in. There is support on both sides of the House. The Front Bench of the Conservative Party always used to say to me, “We salute the creative industries. We admire what they do and what they bring in to the economy”. The new Front Bench is saying much the same.
But listen to Elton John and listen to Paul McCartney and, if you value the creative industries as much as you say you do, for God’s sake protect their copyright.
Baroness Freeman of Steventon (CB)
My Lords, I rise briefly to support these important clauses. I declare my interests as I hold copyright as a filmmaker and writer.
Copyright and IP exist to assert ownership over creative works and protect the interests of creators. This is fundamental to supporting people whose job it is to have ideas, be creative and innovate in a range of different ways. Undermining this and allowing major breaches of that protection risks undermining the whole basis of innovation and creativity within a society, and that cannot be done lightly.
Creators of generative AI models claim that they “need” more and more materials to train their models on, including materials that are the creative works of others—just as, until last week, they had claimed that they needed more and more of the latest chips. We should ask ourselves very seriously why they need these copyright-protected works. What use-cases are there for models that have been trained on copyrighted works that would not be possible with models trained on public-domain materials and works for which the rights have been properly obtained?
Lord Arbuthnot of Edrom (Con)
My Lords, as a former Chief Whip, I am all too well aware of the dangers of listening to a debate. However, I have to tell my noble friend Lord Camrose that I have been persuaded by what I have heard so far, and I am afraid that he may have a great deal of work to do to persuade me not to vote for this amendment.
Lord Cashman (Non-Afl)
My Lords, I have reluctantly stayed out of this debate precisely because I am a copyright holder with copyrights stretching back over several decades. But, having listened to the noble Baroness, Lady Kidron, and others, it would be entirely wrong of me to remain silent.
I have to express deep concern and disbelief that the Labour Party of Jennie Lee and of Chris Smith is proposing such a way forward. You cannot on the one hand talk about the importance to every single member of our country—whether at school or going to the high arts of opera—of the importance of the creative industries, and then, with legislation, begin their demolition.
The Government’s approach is entirely wrong. Yes, they can strip away my rights. Indeed, only last week I received the huge sum of £1.76 for a performance. But that £1.76 represented a contract between an artist and someone who used the artist’s material. We are destroying that principle of contract.
These amendments seem sensible, rational and reasonable, and they open the door for the development of AI in exactly the same way as when, as one of the offices of the British Actors’ Equity Association in the early 1990s, we were tasked with negotiating with the BBC, ITV and Channel 4 on the brilliant and new innovation of cable and satellite. We negotiated in order to try to protect artists, some hugely successful and some not so successful. Those negotiations took two years—although we do not have two years now—and at the start of them we were told that we would never reach an agreement. We reached an agreement, which has been adapted and adopted for all other forms of the use of television and audio material.
Are the Government seriously telling us that we do not have the wit, intelligence or drive as a country to come to an adequate negotiation that protects copyright and advances AI? If they are seriously telling us that, I urge noble Lords to disregard it. I urge your Lordships most of all to vote not for the Elton Johns or the Paul McCartneys but for that one person who might be relying on that £1.76, and support these amendments.
Baroness Cavendish of Little Venice (CB)
My Lords, I congratulate my noble friend on a barnstorming speech.
Many of the points that I wanted to make have already been made by others, so I will be brief. I declare my interest as a rights holder. I am slightly worried that this is beginning to sound like special pleading, and I hope that is not the effect it has. I am also the daughter of two writers, and I recognise that £1.76, because sometimes that was it. That £1.76, as the noble Lord has just said, is a contract. There are many artists, musicians and writers in this country who get money for their books in libraries or tiny amounts of royalties, and those royalties are keeping them alive. They enable them to create original work and earn their living.
I believe that generative AI will be transformational and largely for the good. However, it is perfectly possible to distinguish between meaningful progress that advances humanity—we heard in an earlier debate about AI tracking naval ships, and brilliant advances are being made in medicine—and plain theft of intellectual property. That theft has been going on now for several years, and the people who are being stolen from are not even aware that their work has been stolen.
For that reason, I do not actually believe it is necessary to seek a balance. This is not about balance; it is about implementing and upholding the rule of law. The proposed rights reservation from the Government would reverse the fundamental principle of UK copyright law, which, as others have said, was established in 1710—I think it was 1710, not 1709, but we may differ. My mother wrote the Handbook of Copyright in British Publishing Practice in 1974, so I have some visceral memory of all this. The Government are proposing to reverse the fundamental protections that have made us a gold standard in the world. The amendments propose to make UK copyright law enforceable in an age of generative AI—to respond and expand our laws, in what is in my view an extremely proportionate way, to recognise the rights of creators.
We have all learned something in this debate that is astonishing to me: apparently the Government have not conducted an economic impact assessment of their proposals on one of our most successful industries. I find that completely shocking. It suggests a lack of seriousness on the part of this Government and those who are making these proposals, which I hope the Minister will address later.
If artists, musicians and creators cannot earn a living, there will be no original content and no more content for AI to build on. That is surely in itself an economic argument that somewhat undermines the vague idea that innovation cannot happen without the wholesale abolition of our proud tradition of copyright. Chris Bryant said last night that something must change and that we cannot do nothing. I agree, but what we must do is double down.
Lord Holmes of Richmond (Con)
My Lords, I support these amendments and the noble Baroness, Lady Kidron. Not to do so would be, to quote some of her earlier work, beyond the edge of reason.
I support the noble Baroness because I support creatives. They are the individuals who bring such sweet sound where otherwise there would be silence, who fill a blank page with words that can move our hearts, our souls and our minds, and can change the course of history. I support the amendments because I support the rule of law. IP and copyright are well established over centuries.
This is not complex or controversial. There is an extraordinary tedium to the whole question of TDM. Ultimately, I could do this in three words when addressing big tech: “It’s not yours. Take your audacious hands off other people’s work”. And that is from someone who is pro-innovation, pro-AI and pro-technology—but in a way where there is a negotiation and agreed conclusion as to how artists, rights holders and creatives want to engage with these technologies.
We have already heard many times, rightly, that there has been no economic impact assessment. I ask the Minister for his views on that. While on that subject, I ask him, out of genuine interest, what is the genesis of the £400 billion figure in the AI opportunities plan? Where does it come from, what is it based on and how does it sit against the impact that not acting will have on our creative sector?
I support these amendments, and I urge everyone in your Lordships’ House to do so. To misquote the late, great Dennis Potter, “Vote, vote, vote for Beeban Kidron”.
Baroness Butler-Sloss (CB)
My Lords, I have come specifically to the debate on this part of the Bill especially to support these amendments. I regret that I have not played a part in any other part of the Bill, but this subject is so important that I have come—and I shall speak briefly because I support what everyone else has said.
I am coming from a totally different angle. As a judge, I tried these cases, and they worked perfectly well. We never had a problem in coming to a decision on copyright or intellectual property. I did not do very many, but I sat with judges who did it all the time. I am absolutely astonished that the Government are setting aside long-established law; whether it goes back to 1709 or 1710—whether it is the noble Baroness, Lady Cavendish, or the noble Earl, Lord Devon, who is right—I do not think matters. The point is that it goes back a long way, and it works. Why are the Government setting it aside instead of strengthening it, for all the reasons that have been given so far?
I wonder whether, in the absence of an impact assessment, the Government have put their mind to what is going to happen on the ground, and not just with regard to the £1.76. Is the £128 billion going to exist to go into the coffers of the Treasury? I suspect that, whatever they think they are going to make, no one from the government Benches has thought about what they are going to lose. Basically, I am asking the Government to sit back, think again and reflect with the greatest possible care on the brilliant speech of noble Baroness, Lady Kidron, and the unanimity across this House. Having been in this place for many years, I cannot remember another occasion where I have not heard a single voice supporting the Government. Are the Government going to listen to that?
Lord Clement-Jones (LD)
My Lords, I can be pretty brief. We have had some fantastic speeches, started by the noble Baroness, Lady Kidron, with her superb rallying cry for these amendments, which we 100% support on these Benches. As she said, there is cross-party support. We have heard support from all over the House and, as the noble and learned Baroness, Lady Butler-Sloss, has just said, there has not been a dissenting voice.
I have a long association with the creative industries and with AI policy and yield to no one in my enthusiasm for AI—but, as the noble Baroness said, it should not come at the expense of the creative industries. It should not just be for the benefit of DeepSeek or Silicon Valley. We are very clear where we stand on this.
I pay tribute to the Creative Rights in AI Coalition and its campaign, which has been so powerful in garnering support, and to all those in the creative industries and creators themselves who briefed noble Lords for this debate.
These amendments respond to deep concerns that AI companies are using copyright material without permission or compensation. With the new government consultation, I do not believe that their preferred option is a straw man for a text and data mining exemption, with an opt out that we thought was settled under the previous Government. It starts from the false premise of legal uncertainty, as we have heard from a number of noble Lords. As the News Media Association has said, the Government’s consultation is based on a mistaken idea, promoted by tech lobbyists and echoed in the consultation, that there is a lack of clarity in existing copyright law. This is completely untrue. The use of copyrighted content without a licence by gen AI firms is theft on a mass scale and there is no objective case for a new text and data mining exception.
No effective opt-out system for the use of content by gen AI models has been proposed or implemented anywhere in the world, making the Government’s proposals entirely speculative. It is vital going forward that we ensure that AI companies cannot use copyrighted material without permission or compensation; that AI development does not exploit loopholes to bypass copyright laws; that AI developers disclose the sources of the data they use for training their models, allowing for accountability and addressing infringement; and that we reinforce the existing copyright framework, rather than creating new exceptions that disadvantage creators.
These amendments would provide a mechanism for copyright holders to contest the use of their work and ensure a route for payment. They seek to ensure that AI innovation does not come at the expense of the rights and livelihoods of creators. There is no market failure. We have a well-established licensing system as an alternative to the Government’s proposed opt-out scheme for AI developers using copyrighted works. A licensing system is the only sustainable solution that benefits both creative industries and the AI sector. We have some of the most effective collective rights organisations in the world. Licensing is their bread and butter. Merely because AI platforms are resisting claims, does not mean that the law in the UK is uncertain.
Amending UK law to address the challenges posed by AI development, particularly in relation to copyright and transparency, is essential to protect the rights of creators, foster responsible innovation and ensure a sustainable future for the creative industries. This should apply regardless of which country the scraping of copyright material takes place in, if developers market their product in the UK, regardless of where the training takes place. It would also ensure that AI start-ups based in the UK are not put at a competitive disadvantage due to the ability of international firms to conduct training in a different jurisdiction.
As we have heard throughout this debate, it is clear that the options proposed by the Government have no proper economic assessment underpinning them, no technology for an opt-out underpinning them and no enforcement mechanism proposed. It baffles me why the Conservative Opposition is not supporting these amendments, and I very much hope that the voices we have heard on the Conservative Benches will make sure that these amendments pass with acclamation.
Viscount Camrose (Con)
I thank the noble Baroness, Lady Kidron, for moving this incredibly important group and all those speakers who have made the arguments so clearly and powerfully. I pay tribute to noble Baroness’s work on copyright and AI, which is so important for our arts and culture sector. As noble Lords have rightly said, our cultural industries make an enormous contribution to our country, not just in cultural terms but in economic ones, and we must ensure that our laws do not put that future at risk.
In the build-up to this debate I engaged with great pleasure with the noble Baroness, Lady Kidron, and on these Benches we are sympathetic to her arguments. Her Amendment 61 would require the Government to make regulations in this area. We accept the Government’s assurance that this is something they will seek to address, and I note the Minister’s confirmation that their consultation will form the basis of the Government’s approach to this issue. Given the importance of getting this right, our view is that the Government’s consultation is in mid-flight, and we have to allow it to do its work. Whatever view we take of the design and the timing of the consultation, it offers for now a way forward that will evidence some of the serious concerns expressed here. That said, we will take a great interest in the progress and outcomes of the consultation and will come back to this in future should the Government’s approach prove unsatisfactory.
Amendment 75 in my name also seeks to address the challenge that the growth in AI poses to our cultural industries. One of the key challenges in copyright and AI is enforceability. Copyright can be enforced only when we know it has been infringed. The size and the international distribution of AI training models render it extremely challenging to answer two fundamental questions today: first, was a given piece of content used in a training model and secondly, if so, in what jurisdiction did that use take place? If we cannot answer these questions, enforcement can become extremely hard, so a necessary, if not sufficient, part of the solution will be a digital watermark—a means of putting some red dye in the water where copyrighted material is used to train AIs. It could also potentially provide an automated means for content creators to opt out, with a vastly more manageable administrative burden.
I thank the Minister for his constructive engagement on digital watermarking and look to him to give the House an assurance that the Government will bring forward a plan to develop a technological standard for a machine-readable digital watermark. I hope that, if and when he does so, he is able to indicate both a timeline and an intention to engage internationally. Subject to receiving such reassurances when he rises, I shall not move my amendment.
Lord Vallance of Balham (Lab)
I congratulate the noble Baroness, Lady Kidron, on her excellent speech. I know that she feels very strongly about this topic and the creative industries, as do I, but I also recognise what she said about junior Ministers. I have heard the many noble Lords who have spoken, and I hope they will forgive me if I do not mention everyone by name.
It is vital that we get this right. We need to give creators better, easier and practical control over their rights, allow appropriate access to training material by AI firms and, most importantly, ensure there is real transparency in the system, something that is currently lacking. We need to do this so that we can guarantee the continued success of our creative industries and fully benefit from what AI will bring.
I want to make it clear, as others have, that these two sectors are not mutually exclusive; it is not a case of picking sides. Many in the creative industries are themselves users or developers of AI technology. We want to ensure that the benefits of this powerful new technology are shared, which was a point made by the noble Baroness, Lady Stowell, and her committee.
It is obvious that these are complex issues. We know that the current situation is unsatisfactory in practice for the creative industries and the AI sector. That is why we have launched a detailed consultation on what package of measures can be developed to benefit both the creative industries and the AI sector. This is a genuine consultation. Many people from a range of sectors are engaging with us to share their views and evidence. It is important, and indeed essential, that we fully consider all responses provided in the consultation before we act. Not to do so would be a disservice to all those who are providing important input and would narrow our chance to get the right solution.
I agree wholeheartedly with the noble Baroness and many other noble Lords, including the noble Lord, Lord Freyberg, on the importance of transparency about the creative content used to train AI. Transparency, about both inputs and outputs, is a key objective in the Government’s consultation on copyright and AI. This very ability to provide transparency is at the centre of what is required. The consultation also contains two other vital objectives alongside transparency: practical and clear control and reward for rights holders over the use of their work. This is quite the opposite of the notion of giving away their hard work or theft. It is about increasing their control and ensuring access to data for AI training.
The Government certainly agree with the spirit of the amendments on transparency and web crawlers and the aims they are trying to achieve—that creators should have more clarity over which web crawlers can access their works and be able to block them if they wish, and that they should be able to know what has been used and by whom and have mechanisms to be appropriately reimbursed. However, it would be premature to commit to very specific solutions at this stage of the consideration of the consultation.
We want to consider these issues more broadly than the amendments before us, which do not take into account the fact that web crawling is not the only way AI models are trained. We also want to ensure that any future measures are not disproportionate for small businesses and individuals. There is a risk that legislating in this way will not be flexible enough to keep pace with rapid developments in the AI sector or new web standards. A key purpose of our consultation is to ensure that we have the full benefit of views on how to approach these issues, so that any legislation will be future-proof and able to deliver concrete and sustainable benefits for the creators. The preferred option in the consultation is one proposal; this is a consultation to try to find the right answer and all the proposals will be considered on their merits.
The Government are also committed to ensuring that rights holders have real control over how their works are used. At the moment, many feel powerless over the use of their works by AI models. Our consultation considers technological and other means that can help to ensure that creators’ wishes are respected in practice. We want to work with industry to develop simple and reliable ways to do this that meet agreed standards, in reference to the point made by the noble Viscount, Lord Camrose.
Technical standards are an important part of this. There are technical standards that will be required to prevent web crawlers accessing certain datasets. Standards will be needed for control at the metadata level and for watermarking. I agree with the noble Viscount, Lord Camrose, that standards on the use of watermarks or metadata could have a number of benefits for those who wish to control or license the use of their content with AI. Standards on the use of web crawlers may also improve the ability of rights holders to prevent the use of their works against their wishes. We will actively support the development of new standards and the application of existing ones. We see this as a key part of what is needed. We do not intend to implement changes in this area until we are confident that they will work in practice and are easy to use.
I also want to stress that our data mining proposals relate only to content that has been lawfully made available, so they will not apply to pirated copies. Existing copyright law will continue to apply to the outputs of AI models, as it does today. People will not be able to use AI as a cover for copyright piracy. With improved transparency and control over inputs, we expect that the likelihood of models generating infringing output will be greatly reduced.
Baroness Kidron (CB)
My Lords, I want to return to the moment just before the Front-Bench speeches of the Opposition and the Government, when there was absolute agreement around the House. There were fantastic speeches from all sides, which understood AI not as competition but as a fellow traveller of the creative industries. I want to make that really clear, as all colleagues did around the House. I thank all noble Lords on both Benches who are being whipped not to vote for this for saying that they will support it. As I said at the outset, there are many hundreds of people watching this, and they want to know what the House is going to do to protect their future.
I will not address my remarks to the noble Viscount, Lord Camrose; he knows what I think. For a Conservative Party not to act on the property rights of UK citizens is a crying shame. To the Government and the Minister —to whom I keep finding myself saying, “who I like very much”—I have to say that this is not good enough. The Minister used the word “premature” twice. There may be a dispute about 09 or 10, but we seem to be in agreement on the 17 over on our Benches. It is not premature to use the copyright law to protect the property rights of British citizens.
I also noticed the slight slide around the preferred option. I am sorry, but to say it is a preferred option and then suggest that it is an open consultation is simply not correct. I also want to talk about this business of the impact assessment—and I am going to revisit this. I was in a meeting with officials, and I asked for the impact assessment. They said, “Well, there was one, but I don’t think it will suffice for you, Lady Kidron”. The reason it did not suffice for the noble Baroness, Lady Kidron, is because this impact assessment of AI on companies was just eight bullet points. If just one of the bullet points concerns this point about job losses and loss of income, I do not call that an impact assessment. To have a preferred option that is so catastrophic for our country’s second most effective industry—£126 billion down the drain for this magical £4.7 billion—means that I, like other noble Lords, do not understand what we are doing here.
I can see that the Chamber is filling up. Finally, on this point about international law, we have heard it all before: we heard about data law, we heard about the OSA, we heard about competition law. I wonder whether, when they do an impact assessment, the Government might consider how many creative copyright owners might like to come to the UK to ply their trade when we have our copyright laws in full order. I remember one of the first reasons Canal+ gave for making its IPO in London was our copyright laws—and it has “Paddington”.
I thank all noble Lords for speaking. They made tremendous speeches, which were educated, thoughtful and non-hysterical. These are very modest amendments, and this House has a duty to those people outside to vote on them. I will add that, at a personal level, in the 12 years I have been in your Lordships’ House I have done so many deals with the Government of the day, whichever Government that was. I have always tried to avoid voting, and I have never called a vote that I did not know I was going to win. Because of the whipping arrangements, I believe I will lose today, but we will vote. I invite those people who want the creative industries to know that we have their back to follow me through the Lobby. I would like to test the opinion of the House.
Lord Clement-Jones
“Review of court jurisdictionWithin one year of the day on which this Act is passed the Secretary of State must review the impact that transferring the jurisdiction of courts that relate to all data protection provisions to tribunals would have on—(a) the complexity of the appeals system, and(b) legal barriers to representation and redress.”
Lord Clement-Jones (LD)
My Lords, Amendment 46 seeks a review of court jurisdiction. As I said in Committee, the current system’s complexity leads to confusion regarding where to bring data protection claims—tribunals or courts? This is exacerbated by contradictory legal precedents from different levels of the judiciary, and it creates barriers for individuals seeking to enforce their rights.
Transferring jurisdiction to tribunals would simplify the process and reduce costs for individuals, and it would align with the approach for statutory appeals against public bodies, which are typically handled by tribunals. In the Killock v Information Commissioner case, Mrs Justice Farbey explicitly called for a “comprehensive strategic review” of the appeal mechanisms for data protection rights. That is effectively what we seek to do with this amendment.
In Committee, the noble Baroness, Lady Jones, raised concerns about transferring jurisdiction and introducing a new appeals regime. She argued that the tribunals lacked the capacity to handle complex data protection cases, but tribunals are, in fact, better suited to handle such matters due to their expertise and lower costs for individuals. Additionally, the volume of applications under Section 166—“Orders to progress complaints”—suggests significant demand for tribunal resolution, despite its current limitations.
The noble Baroness, Lady Jones, also expressed concern about the potential for a new appeal right to encourage “vexatious challenges”, but introducing a tribunal appeal system similar to the Freedom of Information Act could actually help filter out unfounded claims. This is because the tribunal would have the authority to scrutinise cases and potentially dismiss those deemed frivolous.
The noble Baroness, Lady Jones, emphasised the existing judicial review process as a sufficient safeguard against errors by the Information Commissioner. However, judicial review is costly and complex, presenting a significant barrier for individuals. A tribunal system would offer a much more accessible and less expensive avenue for redress.
I very much hope that, in view of the fact that this is a rather different amendment—it calls for a review—the Government will look at this. It is certainly called for by the judiciary, and I very much hope that the Government will take this on board at this stage.
Viscount Camrose (Con)
I thank the noble Lord, Lord Clement-Jones, for moving his amendment, which would require the Secretary of State to review the potential impact of transferring to tribunals the jurisdiction of courts that relate to all data protection provisions. As I argued in Committee, courts have a long-standing authority and expertise in resolving complex legal disputes, including data protection cases, and removing the jurisdiction of the courts could risk undermining the depth and breadth of legal oversight required in such critical areas.
That said, as the noble Baroness, Lady Jones of Whitchurch, said in Committee, we have a mixed system of jurisdiction for legal issues relating to data, and tribunals have an important role to play. So, although we agree with the intentions behind the amendment from the noble Lord, Lord Clement-Jones, we do not support the push to transfer all data protection provisions from the courts to tribunals, as we believe that there is still an important role for courts to play. Given the importance of the role of the courts in resolving complex cases, we do not feel that this review is necessary.
Lord Clement-Jones (LD)
My Lords, before the noble Viscount sits down, I wonder whether he has actually read the amendment; it calls for a review, not for transfer. I think that his speech is a carryover from Committee.
Lord Vallance of Balham (Lab)
I thank the noble Lord, Lord Clement-Jones, for Amendment 46. It would require a review of the impact of transferring all data protection-related cases to the relevant tribunals. Currently there is a mixture of jurisdictions for tribunals and courts for data protection cases, depending on the nature of the proceedings. This is on the basis that certain claims are deemed appropriate for tribunal, while others are appropriate for courts, where stricter rules of evidence and procedure apply—for example, in dealing with claims by data subjects against controllers for compensation due to breaches of data protection legislation. As such, the current system already provides clear and appropriate administrative and judicial redress routes for data subjects seeking to exercise their rights.
Tribunals are in many cases the appropriate venue for data protection proceedings, including appeals by controllers against enforcement action or applications by data subjects for an order that the ICO should progress a complaint. Claims by individuals against businesses or other organisations for damages arising from breach of data protection law fall under the jurisdiction of courts rather than tribunals. This is appropriate, given the likely disparity between the resources of the respective parties, because courts apply stricter rules of evidence and procedures than tribunals. While court proceedings can, of course, be more costly, successful parties can usually recover their costs, which would not always be the case in tribunals.
I hope that the noble Lord agrees that there is a rationale for these different routes and that a review to consider transfer of jurisdictions to tribunals is therefore not necessary at this time.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for that dusty reply. I wonder whether he has been briefed about particular legal cases, such as Killock or Delo, where the judiciary themselves were confused about the nature of the different jurisdictions of tribunal and court. The Minister and, indeed, the noble Viscount, Lord Camrose, seemed to make speeches on the basis that all is wonderful and the jurisdiction of the courts and tribunals is so clearly defined that we do not need a review. That is not the case and, if the Minister were better briefed about the obiter, if not the judgments, in Delo and Killock, he might appreciate that there is considerable confusion about jurisdiction, as several judges have commented.
I am very disappointed by the Minister’s reply. I think that there will be several judges jumping up and down, considering that he has not really looked at the evidence. The Minister always says that he is very evidence-based. I very much hope that he will take another look at this—or, if he does not, that the MoJ will—as there is considerably greater merit in the amendment than he accords. However, I shall not press this to a vote and I beg leave to withdraw the amendment.
Lord Holmes of Richmond
“Data use: defences to charges under the Computer Misuse Act 1990(1) The Computer Misuse Act 1990 is amended as follows.(2) In section 1, after subsection (3) insert— “(4) It is a defence to a charge under subsection (1) to prove that—(a) the person’s actions were necessary for the detection or prevention of crime, or(b) the person’s actions were justified as being in the public interest.”(3) In section 3, after subsection (6) insert—“(7) It is a defence to a charge under subsection (1) in relation to an act carried out for the intention in subsection (2)(b) or (c) to prove that—(a) the person’s actions were necessary for the detection or prevention of crime, or(b) the person’s actions were justified as being in the public interest.””Member’s explanatory statement
This amendment updates the definition of “unauthorised access” in the Computer Misuse Act 1990 to provide clearer legal protections for legitimate cybersecurity activities.
Lord Holmes of Richmond (Con)
My Lords, in moving Amendment 47, I shall speak also to Amendment 48.
Here we are again: the Computer Misuse Act 1990 is another year older. It was put into statute at a time when technology looked nothing like it did 10 or 20 years ago, never mind today. I will give some brief facts. We have a fantastic cyber sector in our country, which adds so much to our economy and safety. The Computer Misuse Act constrains the sector from keeping us as safe as it might and constrains businesses in terms of their growth and what they could be adding today to our economy in terms of—yes—growth.
There is no reason for us to continue with the Computer Misuse Act when we have the solution in our hands, set out, I suggest, in Amendments 47 and 48. Our cyber- security professionals, often working way out of sight, for obvious reasons, do such important work and professionally, diligently, keep us safe and keep our country, assets and economy secure.
When the Minister responds, will he say, even sotto voce, that a Division on these amendments might help him in his discussions within the department to get some movement on this issue? We heard in previous debates how doing this would be premature and how the time was not now. Well, for a statute that came into being at the beginning of the 1990s, I suggest that it is high time that we made these amendments for individuals, for businesses, for our economy and for our society, in an extraordinarily uncertain world and at a time when I imagine that every Minister should be looking to every potential source of economic growth. I look forward to the debate and to the Minister’s response. I beg to move.
Lord Arbuthnot of Edrom (Con)
My Lords, in Committee, the noble Baroness the Minister said there was no consensus on the best way forward to amend the law to provide protection for ethical hackers trying to work against cybercrime. All I ask is that noble Lords should read the amendment, which says:
“It is a defence to a charge … to prove that … the person’s actions were necessary for the detection or prevention of crime or … the person’s actions were justified as being in the public interest”.
What on earth could be wrong with that? I support my noble friend Lord Holmes of Richmond.
The Earl of Erroll (CB)
My Lords, I too support this. I well remember the passage of the Computer Misuse Act, and we were deeply unhappy about some of its provisions defining hacker tools et cetera, because they had nothing about intention. The Government simply said, “Yes, they will be committing an offence, but we will just ignore it if they are good people”. Leaving it to faceless people in some Civil Service department to decide who is good or bad, with nothing in the Bill, is not very wise. We were always deeply unhappy about it but had to go along with it because we had to have something; otherwise, we could not do anything about hacking tools being freely available. We ended up with a rather odd situation where there is no defence against being a good guy. This is a very sensible amendment to clean up an anomaly that has been sitting in our law for a long time and should probably have been cleaned up a long time ago.
Lord Clement-Jones (LD)
My Lords, I support Amendments 47 and 48, which I was delighted to see tabled by the noble Lords, Lord Holmes and Lord Arbuthnot. I have long argued for changes to the Computer Misuse Act. I pay tribute to the CyberUp campaign, which has been extremely persistent in advocating these changes.
The CMA was drafted some 35 years ago—an age ago in computer technology—when internet usage was much lower and cybersecurity practices much less developed. This makes the Act in its current form unfit for the modern digital landscape and inhibits security professionals from conducting legitimate research. I will not repeat the arguments made by the two noble Lords. I know that the Minister, because of his digital regulation review, is absolutely apprised of this issue, and if he were able to make a decision this evening, I think he would take them on board. I very much hope that he will express sympathy for the amendments, however he wishes to do so—whether by giving an undertaking to bring something back at Third Reading or by doing something in the Commons. Clearly, he knows what the problem is. This issue has been under consideration for a long time, in the bowels of the Home Office—what worse place is there to be?—so I very much hope that the Minister will extract the issue and deal with it as expeditiously as he can.
Viscount Camrose (Con)
I thank my noble friend Lord Holmes for tabling the amendment in this group. I, too, believe these amendments would improve the Bill. The nature of computing and data processing has fundamentally changed since the Computer Misuse Act 1990. Third parties hold and process immense quantities of data, and the means of accessing and interacting with that data have become unrecognisably more sophisticated. Updating the definition of unauthorised computer access through Amendment 48 is a sensible reform, as this new definition takes into account that data controllers and processors now hold substantial quantities of personal data. These entities are responsible for the security of the data they hold, so their provisions on access become legally relevant and this amendment reflects this.
When updating an offence, it is equally necessary to consider the legal defences, as my noble friend has rightly done in Amendment 47 by protecting individuals accessing information to detect or prevent a crime or whose actions are in the public interest. We on these Benches feel these amendments are wholly sensible. I urge the Minister to listen to the persuasive argument that my noble friend Lord Holmes has made and consider how we can deliver these improvements to our data legislation.
Lord Vallance of Balham (Lab)
I am grateful to the noble Lord, Lord Holmes, for raising this topic through Amendments 47 and 48. I am very aware of this issue and understand the strength of feeling about reforming the Computer Misuse Act, as we have heard from the noble Lord, Lord Arbuthnot, and the noble Earl, Lord Erroll.
As the noble Lord, Lord Clement-Jones, rightly pointed out, when I was the Government Chief Scientific Adviser I conducted a review making recommendations on pro-innovation regulation of technologies and I made recommendations on the issues these amendments raise. These recommendations were accepted by the previous Government.
The Government are actively taking forward these recommendations as part of the Act’s ongoing review. These issues are, of course, complex and require careful consideration. The introduction of these specific amendments could unintentionally pose more risk to the UK’s cybersecurity, not least by inadvertently creating a loophole for cybercriminals to exploit to defend themselves against a prosecution.
Our engagement with stakeholders has revealed differing views, even among industry. While some industry partners highlight the noble Lord’s view that the Computer Misuse Act may prevent legitimate public interest activity, others have concerns about the unintended consequences. Law enforcement has considerable concerns that allowing unauthorised access to systems under the pretext of identifying vulnerabilities could be exploited by cybercriminals. Without robust safeguards and oversight, this amendment could significantly hinder investigations and place a burden on law enforcement partners to establish whether a person’s actions were in the public interest.
Further work is required to consider the safeguards that would need to accompany any introduction of statutory defences. The Government will continue to work with the cybersecurity industry, the National Cyber Security Centre and law enforcement agencies on this issue. The Home Office will provide an update in due course, once the proposals have been finalised—or, in the words of the noble Lord, Lord Clement-Jones, they will pop out of the bowels of the Home Office in due course. With these reassurances in mind, I hope the noble Lord will feel able to withdraw his amendments.
Lord Holmes of Richmond (Con)
My Lords, I thank everybody who has taken part in this short debate. I was really hoping that we would not hear the phrase “the bowels of the Home Office” twice, but we did—now we have heard it three times. Perhaps it could be the title of somebody’s autobiography. I do not know whose, but I claim the IP rights even though the noble Lord, Lord Clement-Jones, said it first.
I am grateful for the Minister’s response. It would probably have been better to have some sense of timeline; much of what he said was very much what we heard in Committee. We are all amenable to having a course of action, but it needs more objectives attached to it as to when we are likely to see some consequences, action and changes. As every day goes by, as the Minister is well aware, risks go unchecked that could be checked, people are less safe who could be made safe and economic growth, the Government’s priority, is prevented which could be enabled.
For now, I will withdraw my amendment, but I am minded to see what is possible between now and Third Reading, because the time is now; otherwise, “in due course” will be even longer than the official statement “later in the summer”. I beg leave to withdraw.
Lord Lucas
““service message” means a communication necessary for an administrative or servicing purpose including the performance of a contract to which the recipient is party, or in order to take steps at the request of the recipient prior to entering into a contract which does not contain any direct marketing content;“regulatory communication” means a communication necessary for the compliance with a legal obligation or legislative measure, including those provided by a statutory regulator, which aims to improve customer outcomes and avoids active promotion or encouragement where possible following careful assessment of the risk of harms caused, or likely to be caused, to the recipient;”
Lord Lucas (Con)
My Lords, I will also speak to Amendment 50A. I have sent the Government a reasonably lengthy explanation of what I am up to here, so I will restrict myself to a summary for the purposes of Report.
To my mind, there is a necessary distinction between a service message and a regulatory communication. A service message is to do with an existing contract, and you do not want them full of marketing material, but regulatory communications often have to contain something that would be judged by the ICO as marketing material—they are required to. Under those circumstances, there should be a required balancing between harms: the harm of not complying with what the regulator would like and the harm of issuing a marketing communication without permission.
This is never going to be simple. It is always going to be case-by-case, but we should recognise that there are times when regulators want to encourage people to take particular actions and want the service providers to be part of that. We should allow for that in the wording of the Bill. I beg to move.
Lord Clement-Jones (LD)
My Lords, I will speak to Amendment 48B. In our view, cookie paywalls create an unfair choose for users, essentially forcing them to pay for privacy. We tabled an amendment in Committee to ban cookie paywalls, but in the meantime, as the noble Baroness, Lady Jones, heralded at the time, the Information Commissioner’s Office has provided updated guidance on the “consent or pay” model for cookie compliance. It is now available for review. This guidance clarifies how organisations can offer users a choice between accepting personalised ads for free access or paying for an ad-free experience while ensuring compliance with data protection laws. It has confirmed that the “consent or pay” model is acceptable for UK publishers, provided certain conditions are met. Key requirements for a valid consent under this model include: users must have genuine free choice; the alternative to consent—that is, payment—must be reasonably priced; and users must be fully informed about their options.
The guidance is, however, contradictory. On the one hand, it says that cookie paywalls
“can be compliant with data protection law”
and that providers must document their assessments of how it is compliant with DPL. On the other, it says that, to be compliant with data protection law, cookie paywalls must allow users to choose freely without detriment. However, users who do not wish to pay the fee to access a website will be subject to detriment, because with a cookie paywall they will pay a fee if they wish to refuse consent. This is addressed as the “power imbalance”. It is also worth noting that this guidance does not constitute legal advice; it leaves significant latitude for legal interpretation and argument as to the compatibility of cookie paywalls with data protection law.
The core argument against “consent or pay” models is that they undermine the principle of freely given consent. The ICO guidance emphasises that organisations using these models must be able to demonstrate that users have a genuine choice and are not unfairly penalised for refusing to consent to data processing for personalised advertising. Yet in practice, given the power imbalance, on almost every occasion this is not possible. This amendment seeks to ensure that individuals maintain control over their personal data. By banning cookie paywalls, users can freely choose not to consent to cookies without having to pay a fee. I very much hope that the Government will reconsider the ICO’s guidance in particular, and consider banning cookie paywalls altogether.
Viscount Camrose (Con)
My Lords, I thank my noble friend Lord Lucas for introducing this group. Amendments 48A and 50A, in his name, would ensure that regulated professionals, including financial services firms, are able to comply with current and future regulatory requirements. The example my noble friend has given—the FCA’s expectation that firms communicate effectively with consumers—is a good one. Clearly, we must avoid a circumstance where regulators expect businesses to take action that is not possible due to limiting legislation governing data use and access. My noble friend has made a forceful case and I hope the Government will be able to give the House appropriate assurance that businesses will not be put in this position as a result of this legislation.
Amendment 48B, in the name of the noble Lord, Lord Clement-Jones, seeks to ban cookie paywalls. I opposed a similar amendment when we debated it in Committee as it actually seeks to curtail choice. Currently, users have the options to pay money and stay private, share personal data and read for free, or walk away. Faced with these options, for instance, I have sadly chosen to forgo my regular evening reading of the Daily Mail’s excellent sports pages, but I see no reason why that newspaper, or anyone else, should be compelled to provide anything for free. In fact, it has been very persuasively argued by Jaron Lanier, Shoshana Zuboff and many others that it is the fact that so much of the internet is apparently, but not actually, free that has caused a great deal of damage, rather than having an open charging model. This approach finally reveals the exact cash value of individuals’ data that websites are harvesting and offers users choice. We do not agree with attempts to remove that choice.
Lord Vallance of Balham (Lab)
My Lords, I will start with Amendments 48A and 50A in the name of the noble Lord, Lord Lucas. The Government are aware that some financial services firms have raised concerns that the direct marketing rules in the privacy and electronic communications regulations prevent them supporting consumers in some instances. I appreciate the importance of the support that financial services firms provide to their customers to help them make informed decisions on matters such as their financial investments. The Government and the FCA are working closely together to improve the support available to consumers.
In December, the FCA launched an initial consultation on a new type of support for consumers with their investments and pensions called “targeted support”. Through this consultation, the FCA will seek feedback on any interactions of the proposals and direct marketing rules. As my noble friend Lady Jones explained in the debate in Grand Committee, firms can already provide service or regulatory communication messages to their customers without permission, provided these messages are neutral in tone, factual and do not include promotional content. Promotional content can be sent if a consumer consents to receiving direct marketing. Messages which are not directed to a particular individual, such as online adverts shown to everyone who views a website, are also not prevented by the rules. I hope this explanation and the fact that there is ongoing work provide some reassurance to the noble Lord, Lord Lucas, that the Government are actively looking into this issue, and that, as such, he is content to withdraw his amendment.
Amendment 48B from the noble Lord, Lord Clement-Jones, is aimed at banning cookie paywalls. These generally work by giving web users the option to pay for a cookie-free browsing experience. Many websites are funded by advertising, and some publishers think that people should pay for a viewing experience without personalised advertising. As he rightly pointed out, the ICO released updated guidance on how organisations can deploy “consent or pay” models while still ensuring that consent is “freely given”. The guidance is detailed and outlines important factors that organisations should consider in order to operate legally. We encourage businesses to read this guidance and respond accordingly.
I note the important points that the noble Lord makes, and the counterpoints made by the noble Viscount, Lord Camrose. The Government will continue to engage with businesses, the ICO and users on these models, and on the guidance, but we do not think there is currently a case for taking action to ban the practice. I therefore hope the noble Lord will not press his amendment.
Lord Lucas (Con)
My Lords, I am grateful to the Minister for that explanation. I will, for the moment, be content to know that the Government are continuing to discuss this. There is a real problem here that will need to be dealt with, but if the Government are engaged they will inevitably find themselves having to deal with it. There are some occasions in regulatory messages where you need to make options clear: “You need to do this or something else will happen and you’ll really disadvantage yourself”. The regulator will expect that, particularly where things such as pensions are concerned, but it is clearly a marketing message. It will be difficult to be resolved, but I am happy to trust the Government to have a go at it and not to try to insist on the particular formulation of these amendments. I beg leave to withdraw my amendment.
Lord Vallance of Balham
“Use of electronic mail for direct marketing by charities(1) Regulation 22 of the PEC Regulations (use of electronic mail for direct marketing purposes) is amended as follows.(2) In paragraph (2), after “paragraph (3)” insert “or (3A)”.(3) After paragraph (3) insert—“(3A) A charity may send or instigate the sending of electronic mail for the purposes of direct marketing where—(a) the sole purpose of the direct marketing is to further one or more of the charity’s charitable purposes;(b) the charity obtained the contact details of the recipient of the electronic mail in the course of the recipient—(i) expressing an interest in one or more of the purposes that were the charity’s charitable purposes at that time; or(ii) offering or providing support to further one or more of those purposes; and(c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of their contact details for the purposes of direct marketing by the charity, at the time that the details were initially collected, and, where the recipient did not initially refuse the use of the details, at the time of each subsequent communication.”(4) After paragraph (4) insert—“(5) In this regulation, “charity” means—(a) a charity as defined in section 1(1) of the Charities Act 2011,(b) a charity as defined in section 1(1) of the Charities Act (Northern Ireland) 2008 (c. 12 (N.I.)), including an institution treated as such a charity for the purposes of that Act by virtue of the Charities Act 2008 (Transitional Provision) Order (Northern Ireland) 2013 (S.R. (N.I.) 2013 No. 211), and (c) a body entered in the Scottish Charity Register, other than a body which no longer meets the charity test in section 7 of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10),and, in relation to such a charity, institution or body, “charitable purpose” has the meaning given in the relevant Act.””Member’s explanatory statement
Regulation 22 of the PEC Regulations prohibits the transmission, by means of electronic mail, of unsolicited communications to individual subscribers. This amendment creates an exception from the prohibition for direct marketing carried out by a charity for charitable purposes.
Baroness Kidron
Member’s explanatory statement
This amendment removes the Secretary of State’s discretion on whether to lay regulations under Clause 123 and sets a time limit for laying them before Parliament.
Baroness Kidron (CB)
My Lords, these amendments have to do with research access for online safety. Having sat on the Joint Committee of the draft Online Safety Bill back in 2021, I put on record that I am delighted that the Government have taken the issue of research access to data very seriously. It was a central plank of what we suggested and it is fantastic that they have done it.
Of the amendments in my name, Amendment 51 would simply ensure that the provisions of Clause 123 are acted on by removing the Government’s discretion as to whether they introduce regulations. It also introduces a deadline of 12 months for the Government to do so. Amendment 53 seeks to ensure that the regulators will enable independent researchers to research how online risks and harms impact different groups, especially vulnerable users, including children. Given the excitements we have already had this evening, I do not propose to press any of them, but I would like to hear from the Minister that he has heard me and that the Government will seek to enshrine the principle of different ages, different stages, different people, when he responds.
I note that the noble Lord, Lord Bethell, who has the other amendments in this group, to which I added my name, is not in his place, but I understand that he has sought—and got—reassurance on his amendments. So there is just one remaining matter on which I would like further reassurance: the scope of the legal privilege exception. A letter from the Minister on 10 January explains:
“The clause restates the existing law on legally privileged information as a reassurance that regulated services will not be asked to break the existing legislation on the disclosure of this type of data”.
It seems that the Minister has veered tantalisingly close to answering my question, but not in a manner that I can quite understand. So I would really love to understand—and I would be grateful to the Minister if he would try to explain to me—how the Government will prevent tech companies using legal privilege as a shield. Specifically, would CCing a lawyer on every email exchange, or having a lawyer in every team, allow companies to prevent legitimate scrutiny of their safety record? I have sat in Silicon Valley headquarters and each team came with its own lawyer—I would really appreciate clarity on this issue. I beg to move.
Lord Clement-Jones (LD)
My Lords, I can only support what the noble Baroness, Lady Kidron, had to say. This is essentially unfinished business from the Online Safety Act, which we laboured in the vineyard to deliver some time ago. These amendments aim to strengthen Clause 123 and try to make sure that this actually happens and that we do not get the outcomes of the kind that the noble Baroness has mentioned.
I, too, have read the letter from the Minister to the noble Lord, Lord Bethell. It is hedged about with a number of qualifications, so I very much hope that the Minister will cut through it and give us some very clear assurances, because I must say that I veer back and forth when I read the paragraphs. I say, “There’s a win”, and then the next paragraph kind of qualifies it, so perhaps the Minister will give us true clarity when he responds.
The Earl of Erroll (CB)
My Lords, I wanted to add something, having spent a lot of time on Part 3 of the Digital Economy Act, which after many assurances and a couple of years, the Executive decided not to implement, against the wishes of Parliament. It worries me when the Executive suddenly feel that they can do those sorts of things. I am afraid that leopards sometimes do not change their spots, and I would hate to see this happen again, so Amendment 51 immediately appeals. Parliament needs to assert its authority.
Viscount Camrose (Con)
I thank the noble Baroness, Lady Kidron, for introducing this group, and the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Erroll, for their comments and contributions—particularly the salutary words of the noble Earl, Lord Erroll, on the role of the Executive here, which were very enlightening.
I agree with the noble Baroness, Lady Kidron, that Parliament should have the opportunity to scrutinise this secondary legislation. Online safety research is essential: as our lives become more and more digital, we must assess how it impacts us as people, and especially children, who are particularly vulnerable to online harms. This cannot be achieved unless researchers are able to access the unadulterated raw data. Therefore, I am sure that noble Lords—and our colleagues in the other place—would wish to scrutinise the legislation creating this access to ensure it is fit for purpose. This is why I support the spirit of Amendment 51.
Following on from this point, facilitating online harms research by making access requests enforceable under a pre-existing online safety regime, as per Amendment 52, certainly seems to me like a sensible measure. It would enable this vital research, as would Amendment 54, which removes the need to create a bespoke enforcement system for online safety research access.
Amendment 53 would also enable independent research into how online risks and harms impact different groups. This information would be extremely valuable to a broad range of stakeholders including social media platforms, data controllers, schools and parents and parliamentarians. It would help us all identify groups who are at heightened risk of online harm, what type of harm they are at risk of, which measures have reduced this risk, which have exacerbated it and what we can all do to reduce this danger.
There are many people undertaking online safety research across the globe and we should look to help these researchers access data for the purposes of safety research, even if their location is outside the UK. Of course, adequate safeguards would need to be in place, which may be dictated to some extent by the location of the researcher. However, online safety research is a benefit for all of us and Amendment 55 would keep barriers to this research to a minimum.
I am sure we would all like to think that all data holders and processors would wish to assist with prevention of online harms. However, where commercial and moral imperatives compete, we sadly cannot always count on the latter winning out. Therefore, Amendment 56 is a sensible addition that would prevent contractual exclusion of research access on online safety grounds, ensuring that online safety risks cannot be hidden or obscured.
Lord Vallance of Balham (Lab)
I thank the noble Baroness, Lady Kidron, for the amendments on researchers’ access to data for online safety research, an incredibly important topic. It is clear from Committee that the Government’s proposals in this clause are broadly welcomed. They will ensure that researchers can access the vital data they need to undertake an analysis of online safety risks to UK users, informing future online safety interventions and keeping people safe online.
Amendment 51 would compel the Secretary of State to make regulations for a researcher access framework, and to do so within 12 months. While I am sympathetic to the spirit of the noble Baroness’s amendment, a fixed 12-month timescale and requirement to make regulations may risk compressing the time and options available to develop the most effective and appropriate solution, as my noble friend Lady Jones outlined in Committee. Getting this right is clearly important. While we are committed to introducing a framework as quickly as possible, we do not want to compromise its quality. We need adequate time to ensure that the framework is fit for purpose, appropriately safeguarded and future-proofed for a fast-evolving technological environment.
As required by the Online Safety Act, Ofcom is currently preparing a report into the ways in which researchers can access data and the barriers that they face, as well as exploring how additional access might be achieved. This report will be published in July of this year. We are also committed to conducting a thorough consultation on the issue prior to any enforceable requirements coming into force. The Government intend to consult on the framework as soon as practicable after the publication of Ofcom’s report this summer.
Sufficient time is required for a thorough consultation with the wide range of interested stakeholders in this area, including the research community, civil society and industry. I know that the noble Baroness raised a concern in Committee that the Government would rely on Ofcom’s report to set the framework for the regime, but I can assure her that a robust evidence-gathering process is already under way. The framework will be informed by collaboration with key stakeholders and formal consultation, as well as being guided by evidence from Ofcom’s report on the matter. Once all interested parties have had their say and the consultation is completed, the Government expect to make regulations to install the framework. It is right that the Government commit to a full consultation process and do not seek to prejudge the outcomes of that process by including a mandatory requirement for regulations now.
Amendment 53 would seek to expand the list of examples of the types of provision that the regulations might make. Clause 123 gives non-exhaustive examples of what may be included in future regulations; it certainly does not limit those regulations to the examples given. Given the central importance of protecting children and vulnerable users online, a key aim of any future regulations would be to support researchers to conduct research into the different ways that various groups of people experience online safety, without the need for this amendment. Indeed, a significant driving force for establishing this framework in the first place is to improve the quality of research that is possible to understand the risks to users online, particularly those faced by children. I acknowledge the point that the noble Baroness made about people of all ages. We would be keen to discuss this further with her as we consult on specific requirements as part of developing regulations.
I will touch on the point about legal privilege. We believe that routinely copying a lawyer on to all emails and documents is not likely to attract legal privilege. Legal privilege protects communication specifically between legal advisers and their clients being created for the purpose of giving or receiving legal advice, or for the sole or dominant purpose of litigation. It would not be satisfactory just to copy everyone on everything.
We are confident that we can draft regulations that will make it entirely clear that the legal right to data for research purposes cannot be avoided by tech companies seeking to rely on contractual provisions that purport to prevent the sharing of data for research purposes. Therefore, there is no need for a specific requirement in the Bill to override a terms of service.
Baroness Kidron (CB)
I thank the Minister for his very full answer. My legal adviser on my right—the noble and learned Lord, Lord Thomas of Cwmgiedd—let me know that I was in a good place here. I particularly welcome the Minister’s invitation to discuss Ofcom’s review and the consultation. Perhaps he would not mind if I brought some of my researcher friends with me to that meeting. With that, I beg leave to withdraw the amendment.
New Hospital Programme Review
(2 days, 11 hours ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Kamall (Con)
My Lords, when we have Statements such as this, it is easy to fall into the old-fashioned debate of the Opposition condemning the Government for every change to policy that they announce, and the current Government blaming the previous Government. I hope that the Minister will appreciate that, as the shadow Health Minister, I have tried to act in a more constructive manner—I see her nod—by supporting the Government when we agree, and by asking questions to understand their reasoning and ambitions.
We all want a system of health and care that is fit for the future, fit for today and patient-focused. We welcome the Government’s focus on their three principles. I shall not test the Minister on them, because I know that she can reel them off. They are: hospital to community, analogue to digital and sickness to prevention. Indeed, when I was a Minister in the department, part of my job was to push the digital agenda in health and care.
With that, I am equally sure the Minister also welcomed the opening in April last year of the new Dyson Cancer Centre in Bath, as well as the completion of the Greater Manchester Major Trauma Hospital in May 2024. We are disappointed that the Government have delayed the new hospital programme, and it was also disappointing to see the Secretary of State criticising some of the aspects of the new hospital programme.
We completely understand that the Government have felt it necessary to reassess the timeline for delivering the hospital building programme, but may I press the Minister on those changes? Having delayed some of these new hospitals and the rebuilding of existing hospitals, are the Government still committed to building the same hospitals on the same sites? Is there a possibility that they will change the criteria for where the hospitals will be built?
We also want to understand how this fits into the Government’s other ambitions. The Government are committed to building 1.5 million new homes. Where these new houses are concentrated will inevitably create new areas of pressure on health and care services. Will the Government be considering the impact of their housebuilding targets on the location of these new hospitals, and will that affect the hospital programme?
I have one final point. Brand new, state-of-the-art, large-scale hospitals are all well and good, and we certainly need more hospital capacity, but I know the Minister will agree that they should be supplemented by an increase in primary care facilities. I know the Government have committed to doing just that. The noble Lord, Lord Darzi, was unequivocal in his support of this in his recent report. Have the Government allocated funding for new primary care centres, such as the one mentioned by the Minister in Oral Questions today, and community health and care centres that could offer some secondary care services, taking pressure off the hospitals, but also better rehabilitation for people in their local community, also taking pressure off the larger hospitals? I look forward to the Minister’s responses.
Lord Scriven (LD)
My Lords, I extend my gratitude to the Minister for the Statement on the pressing issue surrounding the new hospital programme review. This initiative, inherited from the previous Conservative Government, who overpromised and underfunded, was a significant letdown for countless communities and patients across England. While the ambition to modernise hospital infrastructure is commendable, the current trajectory raises serious concerns that demand urgent attention.
Such concern was raised in a recent email from the chief executive of Leeds Teaching Hospitals NHS Trust, which showed the impact on both patients and staff of such a delay for capital investment in the hospitals that he leads. Recent data paints a worrying picture: hospitals facing delays under the new hospital programme reported over 500 infrastructure-related incidents in the past year alone. These failures led to the loss of 32 days of clinical time, directly impacting patient care.
This is not just about numbers, it is about real people unable to recover, return to work or resume their daily lives because of these delays. Alarmingly, nearly 100 flooding events occurred in these hospitals that have now been delayed for repair and rebuilding, representing a quarter of all such incidents across NHS England, despite these hospitals accounting for less than 1% of the total NHS estate. Helen Morgan MP, the Liberal Democrat spokesperson in the other place, aptly described these hospitals as “hanging by a thread”. She rightly criticised postponement of essential projects as a “false economy” that jeopardises patient safety. Delays not only inflate cost, forcing hospitals to allocate more of their stretched budgets to essential maintenance, but allow estates to deteriorate further, leading to closed clinics and clinical facilities, extending waiting times and possibly leading to poorer health outcomes for patients.
Therefore, I ask the Minister: have the Government conducted an impact assessment of these delays? If so, will she release a comprehensive evaluation detailing the risk to patients’ well-being, the additional maintenance cost anticipated between now and 2039 for these hospitals, and the financial implications of delaying investment? Specifically, have the Government considered whether to adopt an invest-to-save model, offsetting the cost of borrowing against the escalating maintenance burden and the economic inactivity for some patients caused by estate failures? This could provide a more sustainable way of building these hospitals.
The Autumn Budget of 2024 announced a £3.1 billion increase in the health and social care capital budget over the next two years. While welcome, this figure falls far short of the £6.4 billion per year experts say is necessary to address the NHS’s growing challenge. Over recent years, the maintenance backlog has more than doubled in real terms, rising from £6.4 billion in 2015-16 to a staggering £13.8 billion in 2023-24. This includes urgent issues such as crumbling roofs, outdated electrical systems and failing heating and ventilation—conditions that no hospital staff or members of the public should endure.
The King’s Fund has highlighted a troubling practice. Despite planned increases in capital investment, financial pressures have driven the reallocation of capital budgets to cover day-to-day spending. This undermines the long- term investment urgently needed to maintain and upgrade our healthcare facilities. In light of these alarming facts, I pose the following questions to the Minister. What specific measures have been implemented to ensure that delays to hospital building programmes do not compromise patient safety? How do the Government plan to bridge the gap between the £3.1 billion and the £6.4 billion per year experts say is required to address the NHS hospital maintenance backlog? Will the Government publish a detailed impact assessment of the delayed projects, outlining the risk to patient care and safety? What strategies have been put in place to ring-fence capital budgets, ensuring they are not diverted to cover day-to-day expenses? How do the Government intend to address critical maintenance issues, such as failing roofs and outdated electrical systems in hospitals that will not see rebuilding until the mid to late 2030s?
In conclusion, while the Government’s commitment to improving hospital infrastructure is evident, the current capital allocations are insufficient to address the pressing needs of these facilities. Without sustained investment, the Government risk compromising both patient safety and quality of care. I urge the Government to reassess their funding priorities and consider an invest-to-save model to secure safe and effective hospital environments for patients and professional staff alike. I call on the Minister to address these concerns with the seriousness that they deserve.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am grateful for the reflections and questions from the Opposition Front Benches, although I noticed a difference in the level of understanding of where we are between the noble Lord, Lord Scriven, and the noble Lord, Lord Kamall—I note his disappointment with what he refers to delay and reassessment, and I will return to that.
Perhaps I might make a few points that might be helpful to frame some of the responses, and then go on to some of the specific questions that were asked. I note the disappointment of the noble Lord, Lord Kamall. I cannot, however, accept his assessment, because of where we started. It is impossible to ignore that. As we know, the independent investigation by the noble Lord, Lord Darzi, found the NHS to be starved of capital—indeed, the noble Lord, Lord Scriven, spoke to that. There was some £37 billion of underinvestment in the 2010s, and the fact is—this is borne out by the National Audit Office, which confirmed it—that we were not going to be seeing 40 new hospitals by the date set, so, in my view, it has been independently verified. The new hospital programme was announced by the last Government in October 2020 to deliver 40 new hospitals by 2030. The fact is the schedule for delivery was repeatedly delayed and, on top of that, unfunded beyond March 2025.
That is why, when we came into government, the Secretary of State within weeks commissioned an urgent review into the new hospitals programme. That, I am glad to say, was carried out at pace over the summer of 2024. What was that all about? It aimed to put the programme on a firm footing with sustainable funding. I do not accept that that was simply a delay. I can understand disappointment—I would like it to be different—but we have been dealt the hand we have. The outcome of the review, which was announced on 20 January in the Statement that we are discussing tonight, provided a credible plan and timeline to deliver schemes, and that is set out in the published New Hospital Programme: Plan for Implementation. It is backed with investment, which is expected to increase to £15 billion over each consecutive five-year wave. That is averaging around £3 billion a year from 2030. Funding will, of course, as with all government funding, be confirmed at future spending reviews.
The current wave of new building is under way, and there are a further three waves. The first wave consists of 16 schemes beginning construction between 2025 and 2030; wave 2 has nine schemes beginning construction between 2030 and 2035; and wave 3 has nine schemes beginning construction between 2035 and 2039. That is like chalk and cheese compared with where we were before. We had a promise of new hospitals when, in fact, many of them were not new hospitals, whereas this sets out quite clearly what will be built, when it will be built and the funding. To me, this is actually honesty; it may not be where we want to be, but it is saying that this is the honest situation, and this is what we will do.
The new hospital programme provides a mix of new builds and/or refurbishments, new-build extensions and refurbs. That is under that programme, and I can also confirm to the noble Lords that we will be appointing a programme delivery partner in the coming weeks to support this delivery.
I was asked about other capital projects, and I shall just mention a few. Capital spending is increasing this year, rising to £13.6 billion next year. That includes £1.5 billion for new surgical hubs, diagnostic scanners, beds across the estate and new radiotherapy machines to improve cancer treatment. That will also help greatly towards tackling waiting lists.
Reinforced autoclaved aerated concrete, or RAAC, is an area of great concern. Over £1 billion has been allocated to tackle that and address the backlog of critical maintenance, repairs and upgrades across the NHS estate, to which the noble Lord, Lord Scriven, referred. Importantly—because we often discuss this—over £2 billion will be invested in NHS technology and digital infrastructure, because it is not just physical build but about making sure that we are building for the future.
In general terms, I believe that the new hospital programme is finally, as it was not before, on a sustainable footing. The plan is realistic, credible and transparent, so we will be held to account. It is part of our determination to rebuild the NHS and rebuild trust—because I feel, sadly, that trust went.
The noble Lord, Lord Kamall, rightly raised the point that it is not all about large-scale hospitals, and I certainly agree with that—not least because it is one of our pillars, as the noble Lord said, to shift the focus of the NHS out of hospitals and into the communities. We understand that, if patients cannot get a GP appointment, for example, they are going to end up in A&E, which is worse for them and expensive for the taxpayer. At the Autumn Budget, we established a dedicated—and I stress “dedicated” in answer to the question about funding from the noble Lord, Lord Scriven—capital fund of £102 million for 2025-26 to deliver around 200 upgrades to GP surgeries across England that will support the improved use of existing buildings and space, boost productivity and enable the delivery of more appointments. I would absolutely agree that that is very important.
I was asked about other funding, and I have mentioned the health capital spending that is needed. I say to the noble Lord, Lord Scriven—and I know he is aware of this—that we inherited a monumental backlog of maintenance. I refer also to a couple of other points that the noble Lord raised. I do not want to put words into his mouth, but one of them was about whether we can review. I know that this is an issue, and there are certain schemes that people wish to advocate for and are particularly concerned about. The fact is that the decisions have been made, and they were made while taking into account all the necessary criteria in a fair and open way. The Statement outlines the lists, and they will not be changing. For those who are not on the waves, we are working with them to look at what is needed, so people are not being ignored. I also emphasise that my colleagues in the House of Commons, the Secretary of State and, particularly, the Minister, Karin Smyth, have engaged widely and very quickly with every constituency MP, in the waves that are outlined in the Statement and those that are not mentioned, because we understand people’s concern.
The noble Lord, Lord Scriven, also asked about an assessment of the impact of the new delivery schedule. It is now available on GOV.UK with the plan for implementation— and I hope that is helpful. I definitely echo the noble Lord’s concerns about continuous switches between capital and revenue, and I can assure him and your Lordships’ House that the Government’s now updated fiscal rules will stop future switches from capital to revenue. I also reassure both noble Lords that the Government are committed to all hospitals in the new hospital programme. No scheme has been added or removed, and we are working with each trust in the programme to determine the most appropriate site in line with local needs and the needs of the individual scheme.
If I may make just one last point, the noble Lord, Lord Scriven, asked about consideration of invest to save, and I have to say that the Statement outlines exactly how we will proceed in this regard.
We know that we have to underline the under- capitalisation of the past; that is essential if we are going to fix the foundations of the NHS and if we are going to make it fit for the future. I hope that noble Lords will accept that this Statement represents a change. It is deliverable, manageable, transparent and will provide what it says it will do on the tin.
Lord Mott (Con)
My Lords, I welcome the £102 million that the Minister referred to for the upgrade to GP estates. May I ask how many of those will be in Cambridgeshire? Has any assessment been made of the pressure that the upgrade of those GP estates will take off the NHS? The Minister said that often people cannot get a GP appointment and therefore tend to go to A&E. Has any assessment been made of how much pressure will be taken off and, more importantly, the quality of care given to people who are able to go to their local GP instead of having often to go to A&E?
Baroness Merron (Lab)
While I cannot answer exactly on Cambridgeshire, which the noble Lord raises, I can say that the department and NHS England are working with integrated care boards to ensure that there is a priority on high-impact projects where investment will unlock all the things we are all looking for, which are significant productivity gains and additional usable space from existing buildings. Of course, ICBs are responsible for that. I perhaps should also make the point that this is the first dedicated national capital fund for primary care since 2020. The noble Lord rightly quoted me back about the benefits of investing in GP practice. We are probably all familiar with that. There have been a number of reviews, including, of course, the independent review of the noble Lord, Lord Darzi, which spoke to the point about the need for capital investment in primary care.
Lord Liddle (Lab)
My Lords, will my noble friend the Minister and the ministerial team at health accept my congratulations that they have had the courage to come up with a realistic programme, whereas what we had before was fantasy? This is very important. I read the Darzi report, and it has been clear that for years capital money has been used in order to fill revenue gaps at the end of the year because, basically, the whole system was underfunded. It is also clear that, as well as wanting to put the estate and buildings right, there is a tremendous need for investment in hospital equipment, scanners and all the rest in order to improve quickly the effectiveness of delivering good services to patients, and that the Government have to balance these pressures. It looks to me as though they are doing it right.
Baroness Merron (Lab)
I am, of course, delighted to accept the thanks from my noble friend, and I will indeed share it with the ministerial team. As has already been raised by the noble Lord, Lord Scriven, and as my noble friend has pointed out, robbing Peter to pay Paul does nothing; productivity, safety, quality of care and providing services, including tackling waiting lists, requires investment in capital and dealing with the state of buildings and the estate. I am sure that we have all seen many examples of where failure to invest has not helped at all. I am glad that my noble friend welcomes the investment that we are making, not just in new surgical hubs but scanners, beds and new radiotherapy machines to improve cancer treatment. All these are about tackling the waiting lists because we inherited the highest ever waiting lists and the lowest-ever patient satisfaction, and we are determined to turn that around.
Lord in Waiting/Government Whip (Lord Cryer)
My Lords, the annunciator tells me that Report is not due to begin again until 8.07 pm. Since the Statement fell short of the anticipated 40 minutes, I beg to move, from a packed House of Lords, that we adjourn during pleasure until 8.07 pm.
Data (Use and Access) Bill [HL]
Tuesday 28th January 2025
(2 days, 11 hours ago)
Lords ChamberRead Full debate Data (Use and Access) Bill [HL] 2024-26 View all Data (Use and Access) Bill [HL] 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 57-II Second marshalled list for Report - (24 Jan 2025)
22:23 - Division on Amendment 67 - Ayes: 120 / Noes: 105 - Amendment 67 agreed.
Lord Ponsonby of Shulbrede
“Creating purported sexual image of adult(1) The Sexual Offences Act 2003 is amended in accordance with subsections (2) and (3).(2) After section 66A insert—“66AA Creating purported sexual image of adult(1) A person (A) commits an offence if—(a) A intentionally creates a purported sexual image of another person (B),(b) A does so with the intention of causing B alarm, distress or humiliation, and(c) B does not consent to the creation of the purported sexual image.(2) A person (A) commits an offence if—(a) A intentionally creates a purported sexual image of another person (B),(b) A does so for the purpose of A or another person obtaining sexual gratification,(c) B does not consent to the creation of the purported sexual image, and(d) A does not reasonably believe that B consents.(3) “Purported sexual image” of a person means an image which—(a) appears to be or include a photograph or film of the person (but is not, or is not only, a photograph or film of the person),(b) appears to be of an adult, and(c) appears to show—(i) the person participating or engaging in a sexual act which is not of a kind ordinarily done in public,(ii) the person doing a sexual thing which is not of a kind ordinarily done in public,(iii) all or part of the person’s exposed genitals or anus, or (iv) all or part of the person’s exposed breasts, except where what appears to be shown is something of a kind ordinarily seen in public.(4) In this section, a reference to creating a purported sexual image of a person does not include doing so by modifying a photograph or film of the person where what is created by the modification is an image which—(a) appears to show the person, and(b) does not appear to show something within subsection (3)(c)(i) to (iv) which, or a person who, is not shown in the photograph or film.(5) A person who commits an offence under this section is liable on summary conviction to a fine.66AB Creating purported sexual image of adult: definitions etc(1) This section applies for the purposes of section 66AA.(2) “Consent” to the creation of a purported sexual image includes general consent covering the particular act of creation as well as specific consent to that particular act.(3) Whether a belief is “reasonable” is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.(4) A reference to an “image”, “photograph” or “film” includes data stored by any means which is capable of conversion into an image, photograph or film.(5) An image of a person appears to be an image of an adult if—(a) the impression conveyed by the image is that the person shown is aged 18 or over, or(b) the predominant impression conveyed by the image is that the person shown is aged 18 or over (even if some of the physical characteristics shown are those of a person under 18).(6) An act or thing is “sexual” if a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider it to be sexual.”(3) In section 79(5) (meaning of references to image of a person), after “a person” insert “(except in sections 66AA and 66AB)”.(4) In the Sentencing Code, after section 154 insert—“154A Purported sexual images to be treated as used for purpose of certain offences(1) This section applies where a person commits an offence under section 66AA(1) or (2) of the Sexual Offences Act 2003 (creating purported sexual image of adult).66AA(1)(2) The purported sexual image to which the offence relates, and anything containing it, is to be regarded for the purposes of section 153 (and section 157(3)(b)) as used for the purposes of committing the offence (including where it is committed by aiding, abetting, counselling or procuring).””Member's explanatory statement
This clause creates offences of creating a purported sexual image of an adult and provides that deprivation orders can be made under the Sentencing Code in connection with the offences.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)
My Lords, as will become clear, although I am moving Amendment 56A, it is not the Government’s intention to insert these provisions into the Bill.
This is an issue on which there has been great and very important debate. I start by thanking the noble Lady Baroness, Lady Owen of Alderley Edge, for her tireless campaigning on this matter. This is a crucial area of law to get right, and the noble Baroness has rightly kept it at the top of the agenda in your Lordships’ House, arguing passionately on behalf of victims of this appalling form of abuse. I also thank other signatories to amendments in this group: the noble Baronesses, Lady Kidron and Lady Gohir, my noble friend Lord Browne of Ladyton and the noble Lord, Lord Clement-Jones. We have valued the engagement that has taken place. It is because we have been listening very carefully to the points made by these noble Lords and, indeed, many others, that we are able to confirm that the Government will be making good on their manifesto commitment to criminalise those who create a sexually explicit deepfake of an adult without their consent.
Noble Lords will know that the Government had intended to legislate in this area in the upcoming crime and policing Bill. However, following consultation with stakeholders and colleagues across your Lordships’ House, we have not only decided to use this Bill to criminalise the creation of sexually explicit deepfakes but will bring new amendments forward for Third Reading. Our proposed new amendments will take a similar approach to that of the noble Baroness, Lady Owen, on many key issues of concern raised in your Lordships’ House, while ensuring that they will work effectively within existing legal frameworks. Our new amendments will make it an offence to intentionally create an intimate image of a person without their consent or reasonable belief in their consent. There will be no additional intent element to our offence.
We have listened carefully in engaging with noble Lords across the House and considered additional evidence, and we agree that this consent-based approach is the right one to protect victims from abuse. The harm to victims of this behaviour cannot be underestimated. A consent-based offence sends a clear message that we want to stamp out the inexcusable creation of intimate deepfakes at its root.
We have also heard the concerns about what types of images it will be criminal to create. If the noble Baroness works with us, our proposed government amendment will define which images are captured by reference to Sections 66D(5) to (9) in the wider intimate image abuse framework, and will therefore cover the creation of the same types of images as covered by the sharing and proposed taking intimate images offence. This means that it will be a criminal offence to create, take or share an image that shows or appears to show someone engaged in sexual acts, or where the most intimate parts of the body are exposed or covered with underwear. It will mean that criminals cannot escape justice by altering images so that intimate parts of the body appear to be covered with emoji symbols or pictures. We are clear that this behaviour is unacceptable and should be criminal.
We are aware of concerns about overcriminalisation, particularly in relation to children, so that they are not unnecessarily brought into the criminal justice system. That is why we will be working closely with the Department for Education to tackle misogyny at every level. This will be critical to achieving our commitment to halve violence against women and girls, for which we will pull every lever to shift behaviour towards women.
We will also be including in our amendment a defence of reasonable excuse. The government amendment will be tech neutral, meaning that it is future-proofed if there are new ways to create hyperrealistic, sexually explicit likenesses in the future.
The Government have also heard, and agree with, the aim of the noble Baroness’s amendment to criminalise asking someone to commit the offence for you, regardless of where they are located and whether the image is then created. Existing law means that, once the creation of a sexually explicit deepfake without consent is an offence, it will automatically be an offence to encourage or assist someone to commit this offence in England and Wales under the Serious Crime Act 2007.
These inchoate offences apply to almost all criminal offences, but we share Peers’ concern about the need to ensure that this can apply if the request is made of any creator anywhere in the world. We are carefully considering how best to give effect to that, but bespoke “encouraging” offences are very rare and there is a serious risk of unintended consequences for wider areas of the criminal law. I want to be clear that we will be ensuring that the criminal law covers this behaviour. We will be developing provisions at pace, and want to work with the noble Baroness and her co-sponsors as we do that.
I cannot commit to the final proposals being brought forward at Third Reading. However, I will provide an update at Third Reading on when and how we expect to bring these specific measures forward. If they are inserted into the Bill in the House of Commons, they will of course return to this House for further consideration. The new government amendments will effectively protect victims and bring offenders to justice. Together with existing law and our new taking and installing offences in the Crime and Policing Bill, we will have a holistic package of offences to address intimate image abuse.
Baroness Owen of Alderley Edge (Con)
My Lords, I shall speak to Amendments 69, 70 and 72. I declare my interest as a guest of Google at its Future Forum and AI policy conference. I will also speak to government Amendments 56A, 74A and 77. I am grateful to the Government—particularly the Ministers, the noble Lord, Lord Ponsonby, and Sarah Sackman, who I know want to do the right thing by victim survivors—for taking the time to meet me and other noble Lords from across this House, and for the movement they have made in not pressing their own amendment.
I am so grateful for the offer to work together to put victim survivor experience at the heart of our legislation. As I have always advocated, a consent-based approach is the only approach that shows that the violation of a woman’s consent through the non-consensual creation of sexually explicit images and films is an act of abuse, regardless of a person’s motivation.
I am pleased that the Government have finally conceded that a woman’s consent is enough and, in doing so, will not press their amendments. I turn first to Amendment 69, in the names of the noble Lords, Lord Browne of Ladyton Lord Clement-Jones, and the noble Baroness, Lady Kidron. In doing so, I thank them for their steadfast and unwavering support.
I understand that the Government wish to bring forward their own amendment in time for Third Reading, I need to get absolute assurances from the Minister that it would be consent-based, as he has confirmed, cover solicitation, use the same definition of “an intimate state” as in the pre-existing sharing offence, that the limitation of time under the Magistrates’ Court Act will be taken as the date on which the victim becomes aware that the content has been created, and not the date on which it was created, and that it will include clarity under the law that the content used for image-based abuse will have clear guidance under Section 153 of the Sentencing Code.
If I cannot have absolute assurance from the noble Lord, I am motivated to test the opinion of the House, because a deepfake offence without the inclusion of solicitation will not be holistic. Amendment 69 vitally includes the solicitation of this content in order to close the gaps in the law and ensure that it cannot be circumnavigated by asking someone else in another jurisdiction where they have not yet legislated to create the content for you. It makes it an offence to solicit the content whether or not the creation happens. This vitally reflects the borderless nature of the internet and ensures that those in the UK who seek to abuse women by circumnavigating the proposed law will be held accountable.
Anyone who has had to witness their clothed images being touted on these sites dedicated to abuse will be subject to enormous fear and forced to live under the threat that the creation of sexually explicit content could happen at any moment. I would be grateful for the Minister’s absolute assurance that this will be part of the Government’s new amendment that they will bring at Third Reading and that it will be a consent-based solicitation offence. Without the inclusion of solicitation, we will be left with a gaping omission in our legislation.
My amendment uses the definition of “an intimate state” from Sections 66D(5), (6) and (7) of the Sexual Offences Act 2003 in order to have consistency with the pre-existing sharing laws. Unlike with the government amendment, victims will not have two separate definitions to contend with, depending on whether their image has been created or shared or both. I would just like a final reassurance from the Minister that this will be the definition.
My amendment clearly states in relation to Section 127(1) of the Magistrates’ Court Act 1980 on the limitation of time that the date on which the matter of complaint arose will be taken as the date on which the victim becomes aware of the content, as opposed to the date on which the perpetrator created the content. I need assurance from the Minister that their proposed amendment would do the same, so women are not inadvertently timed out of seeking justice. This issue was highlighted to me by campaigners at #NotYourPorn.
I turn now to Amendment 70 on the deletion of data used to perpetrate intimate image abuse. Following Committee, where I explained to the House that victims were being retraumatised by their abusers still being in possession of sexually explicit content of them following successful prosecution, I was very disheartened by the government response that no action was necessary due to Section 153 of the Sentencing Act 2020. I believe clarity under the pre-existing law is essential in order to avoid situations where victims are left traumatised and in a state of anxiety by their abusers keeping their intimate images.
However, I am very pleased that, following my amendment, the Government have had a change of heart. I understand that they are now willing to commit to amending the deprivation order powers of Section 153 of the Sentencing Code 2020 to ensure that courts can apply the orders to images and videos relating to the conviction of this offence, and any hardware. I would need the Minister’s assurance that it would also include physical copies and those held on any device, cloud-based programmes, digital messaging or social media platforms that the perpetrator controls. I would also like the commitment that this will be applied to the other pre- existing intimate image abuse offences, as my amendment did.
I turn to Amendment 72, which is in my name and those of the noble Baroness, Lady Gohir, and the noble Lord, Lord Clement-Jones. The noble Baroness, Lady Gohir, has previously highlighted to the House the growing problem of audio abuse. It is easy to envisage that, in only a short space of time, we could very realistically be in the same place on audio abuse as we are with sexually explicit deepfakes, as less data is required to create high-quality audio. This has the potential to be weaponised to yet again abuse women. We have the chance now to be proactive. I hope the Government, if they are not prepared to commit to it now, will take it seriously in their upcoming justice Bill.
As I have set out, I am extremely grateful for the Minister’s movement on these issues. I know that it is not straightforward to produce complex amendments at speed and I know the Minister is committed to getting the details right in this vital legislation. I expect the Government to provide an undertaking to bring amendments back at Third Reading to address this issue. Unless I receive reassurances that such amendments will address all the issues in the manner I have set out, I will test the opinion of the House. If I receive the reassurances that I am looking for today but, for any reason, the Government do not follow through with them at Third Reading, I reserve the right to bring back my own amendment covering all the elements I have raised on this important issue. I look forward to hearing from the Minister.
Baroness Gohir (CB)
My Lords, I support everything the noble Baroness, Lady Owen, has said. I declare my interests as set out in the register. I will briefly speak on Amendment 72 about sexually explicit audio abuse, which I have raised a couple of times before.
I am concerned about why, now the Government know and are aware that sexually explicit audio abuse is a thing, they do not want to act now. We have victims right now. Perpetrators are making these recordings and using them to threaten and blackmail. They share these recordings to shame their victims and to maintain power and control. In some communities where shame and honour are a thing, those victims are then at risk of honour-based abuse. With new technologies, you can create deepfake audio as well.
It feels like the Government are kicking this into the long grass. I welcome the Minister’s comments that this will be considered, but there seems to be no timetable; it could be years before action is taken. I wonder whether the Government are waiting for there to be more noise on the issue and for more victims to come forward before they take action. Why not nip this in the bud now? The Minister mentioned the crime and policing Bill. It would be good to know why, for example, it cannot be included in that. I hope that we can shut down this avenue of abuse now and prevent there being more victims.
Lord Browne of Ladyton (Lab)
My Lords, I will speak to Amendments 69 and 70, to which I have added my name. I support the other amendments in the group, but I will leave others to speak to them because they own them. I do not think my noble friend the Minister wishes me to support his amendment, given what he has told us.
I take this opportunity to pay tribute to the noble Baroness, Lady Owen of Alderley Edge, whose campaigning on these issues has been a model of its kind. She has brought not only passion and commitment but astonishing forensic scrutiny to bear on them. She is to be commended for getting us to the place we are in today. I hope my noble friend the Minister will help her get to the destination she has set for us, which is the appropriate destination for this legislation.
The noble Baroness also brought me and others into contact with victims and survivors of this appalling sexual abuse and those who support them, which has been an extraordinary privilege too. Mostly young women, they are immensely impressive in the way they have worked together. Almost all of the many thousands of victims there have already been of this appalling abuse have been extraordinarily well represented.
I also thank those who have supported them. I will pick out Professor Clare McGlynn KC of Durham University and read part of the briefing paper that she produced for this occasion. I hope that all noble Lords who wish to participate in this debate have seen it. I know it has had a significant effect on people; I will not mention who they are, but I know that when they read it they were significantly affected by it.
Lord Pannick (CB)
My Lords, I add my congratulations to the noble Baroness, Lady Owen, for her skill and persistence in persuading the Government to address this noxious practice, which is causing so many women so much distress and humiliation. It is outrageous that this is still not unlawful.
I very much welcome what the Minister said, and I will press him on four matters. I hope that I understood him correctly when he said that the criminal offence will include solicitation in this country of the creation of these images abroad. I see that he is nodding—I am grateful. This is vital for this provision because, unless the criminal offence in this country covers such matters, the mischief will continue, as the Minister recognises. I can see no difficulty in terms of constitutional theory or practice or international law, because there are many offences in the criminal calendar where what is criminalised is conduct in this country, even though part of the matter that causes concern occurs abroad. I am very grateful to the Minister.
Secondly—and I hope I understood the Minister correctly—he said that the Government’s amendments will contain no intent element other than intent to create the image. That is very important. If the prosecution has to establish some other intent, that will enable defendants to come up with all sorts of spurious explanations such as, “It was not my intent” and “I didn’t realise that it would have this effect”, which would frustrate the purpose. I think that is what the Minister said, and I would welcome confirmation on that important point.
I would also welcome confirmation on another point. Another “intent”—intent to cause alarm, distress or humiliation—is in his Amendment 56A, which I of course appreciate will not be pursued in due course. Does the Minister’s statement that no other intent than intent to create the image will be required also covers the other element, which is in Amendment 56A? That also requires the prosecution to prove, as an alternative, the purpose for which these images are created. It has to be proved under Amendment 56A that the purpose is to obtain sexual gratification. The defendant will inevitably say that it is not their purpose. Could the Minister confirm that that will not be replicated in the amendment that will eventually be brought forward? I see the Minister nodding, and I am grateful to him.
Thirdly, the Minister referred to what will be in the amendment that will eventually be brought forward. If I understood him correctly, there will be a defence of reasonable excuse. The Minister confirms that that is what he said. I have great difficulty in understanding in what circumstances a defendant could have a reasonable excuse for creating or soliciting a fake image of a sexual nature without either the consent of the victim or, at the very least, a reasonable belief by the defendant that the victim had consented. Can the Minister give us an example of where the image has been created or solicited and the defendant does not believe that the woman has consented, or does not have a reasonable belief that the woman has consented, but there is nevertheless a reasonable excuse for this conduct? I cannot think of one. I am not expecting an answer from the Minister today, but if his amendment contains the reasonable excuse defence, I for one will be pressing him on it.
Fourthly and finally, I understood the Minister to give a commitment, not that the amendment will be ready in time necessarily for Third Reading, but that it will be ready and introduced during the passage of this Bill through Parliament. My understanding is that there is no question of this being kicked into the long grass. We have a commitment that the Government will propose legislation in the course of parliamentary consideration of this Bill. If I am right on that—again, I saw the Minister nodding—I very much hope that the noble Baroness, Lady Owen, will not feel it necessary to press her amendment this evening. She has made enormous progress on this, which is much welcomed around the House. It would be much better, would it not, to preserve and reserve her position for Third Reading, if she needs to bring the matter back then?
Baroness Kidron (CB)
My Lords, it is such a pleasure briefly to follow my noble friend Lord Pannick; not for the first time I thought that, if I ever get in trouble, I know who I will go to.
I record my admiration for the noble Baroness, Lady Owen. She has fought a just and forensic fight and she has mastered the gift of the House of Lords very rapidly. I also thank the Minister, Sarah Sackman, for the meeting on this subject and for agreeing to look again and again at the issue of intent and consent, which is something that those of us who have been in the world of sexual offences really must insist on, so I was delighted to hear from the noble Baroness and the Minister that that is somewhat resolved.
Lord Sandhurst (Con)
My Lords, I will be brief. I congratulate my noble friend Lady Owen on these three splendid amendments. She has done a tremendous service to the criminal law and the women of this country—and young men, who I understand are abused in this way too. It is really important. I shall not add anything to the speeches that have been made, other than to say that I endorse everything said by the noble Lords, Lord Browne of Ladyton and Lord Pannick, and the noble Baroness, Lady Kidron. We must act now, and we must have a Bill that is complete at Third Reading and which includes everything that the noble Baroness has asked for; there cannot be any excuse for quibbling about solicitation. We have to act now, it has got to be done and I am sure the criminal courts will endorse and adopt it. This is a terrible mischief that causes great harm, and we would be doing a great disservice if we did not act on it.
Baroness Morgan of Cotes (Non-Afl)
My Lords, I will speak briefly on this group. Like other noble Lords, I congratulate the noble Baroness, Lady Owen, on her tenacity. As the noble Baroness, Lady Kidron, said, she has learned the lessons of how to change the law in this House very early on—it takes the rest of us quite a while to catch up. I am very grateful that the Government Front Bench have listened, and it demonstrates the value of this House.
The noble Baroness has outlined why her version of the amendment is right: in victims not having to prove the intent of those who have created or solicited the creation of the image, and also the importance of that solicitation. She is in a difficult position tonight. It is a difficult choice to have to make. I fully appreciate that this is part of the Government’s overall commitment to halve violence against women and girls, I think in the course of this Parliament, and that is extremely noble. But we debated this on 13 December, when we debated the noble Baroness’s Private Member’s Bill; we are now at the end of January and, for everything that is welcome in what the Minister said, he also said that he is unable to give the assurance that the amendment will be tabled at Third Reading. He wants the noble Baroness, Lady Owen, to accept that, if she does not see the amendment then, it will appear in the Commons. I have no reason to think that that will not be the case, but, of course, if it does not appear at Third Reading, and if the noble Baroness does not put down her amendment at Third Reading and push it to a vote, then she is very reliant on it coming back in the Commons.
The broader point that I want to make is that, although we are all committed to ending violence against women and girls and next month we will see the Online Safety Act guidance on that very issue being published by Ofcom, the lesson from the Online Safety Act is that—and it was a Government of which I was a supporter and at the time I was taking the Whip—it took the Government an awfully long time to catch up to the fact that there was a group of Members of this House who just wanted the right thing to be done. The Government took far too long. If the Government had actually been engaging by drafting their own amendment to capture the points made by the noble Baroness between 13 December and today, we would have an amendment that we could all unite around and be even more congratulatory to both the noble Baroness and the Government Front Bench in having tackled these images. As it is, we are in a deeply unsatisfactory place. While I am sure that the noble Lord, Lord Pannick, is right that, perhaps, we should not have a vote tonight, the noble Baroness is taking that on an enormous amount of trust.
Therefore, I say to Government Ministers that, when we come to tackle these issues of violence against women and girls in the rest of this Parliament, it should not matter where the proposals come from; if they are right, if they reflect the reality of women’s and girls’ experiences online or offline, then I would hope that Ministers would listen and that the Opposition would obviously help support and secure those changes. As the online world develops, and as technology gets faster and faster, we need to be nimble in this Parliament in addressing those images. If the noble Baroness pushes Amendment 69 to a vote, I would support it tonight. We will all listen very carefully—no pressure—to what the Minister says, and we shall be guided by the noble Baroness and her decisions as we reach the conclusion of this debate.
Lord Stevenson of Balmacara (Lab)
My Lords, I am pleased to follow the noble Baroness, Lady Morgan, who did so much during the Online Safety Bill—now Act—to champion the issues that are now before us. She should get full credit for the first steps she made. I think I said it before, and I will say it again in her presence, that we thought we had achieved much of what we are talking about today in the final wind-up of that Bill, but we had to swap it for a slightly bigger prize and it fell down slightly on the list, so I feel very guilty about this and want to help to redress somehow the balance of the deficit that was created.
I do not want to get, in this House, any reputation for being a person who asks geeky questions about Third Reading issues, but the Minister will know that getting access to debates at Third Reading is tricky. It often requires the graven head of the clerk to nod very slowly at an appropriate moment, and I wonder if we could just rehearse that slightly so that we are quite clear exactly what the noble Baroness, Lady Morgan, was saying.
Am I right in saying that the intention—and good intentions are great—is that there will be a government amendment at Third Reading? Since it is being produced by the Government, there is not an issue for the clerk to nod at, because that is allowed. If there is a government amendment dealing with all the issues we raised today, then we are all in a good place. It is right that this House, which has done so much to come together to create it, gets the credit for this Bill going down to the Commons. That is appropriate and something that we should get right.
In the absence of the Bill—and I recognise that there are difficulties about drafting, and it may well be that we have a very short time between Report and Third Reading—would it not be appropriate for the Minister to say to the clerk that it is his intention that, if necessary, the noble Baroness, Lady Owen, may bring forward an amendment on these issues so that at least we get, if not all of the package, the parts that are relevant and most important to it in the Bill as it leaves this House? That would be helpful all round, and it would be in accordance with the sentiment of the House.
Lord Arbuthnot of Edrom (Con)
My Lords, I share in the congratulations of my noble friend Lady Owen. It has taken me about 10 years to begin to understand how this House works and it has taken her about 10 minutes.
I want to pursue something which bewilders me about this set of amendments, which is the amendment tabled by the noble Baroness, Lady Gohir. I do not understand why we are talking about a different Bill in relation to audio fakes. Audio has been with us for many years, yet video deepfakes are relatively new. Why are we talking about a different Bill in relation to audio deepfakes?
Lord Clement-Jones (LD)
My Lords, this has been a very interesting debate. I too congratulate the noble Baroness, Lady Owen, on having brought forward these very important amendments. It has been a privilege to be part of her support team and she has proved an extremely persuasive cross-party advocate, including in being able to bring out the team: the noble Baroness, Lady Kidron, the noble Lord, Lord Pannick, who has cross-examined the Minister, and the noble Lord, Lord Stevenson. There is very little to follow up on what noble Lords have said, because the Minister now knows exactly what he needs to reply to.
I was exercised by this rather vague issue of whether the elements that were required were going to come back at Third Reading or in the Commons. I did not think that the Minister was specific enough in his initial response. In his cross-examination, the noble Lord, Lord Pannick, really went through the key elements that were required, such as the no intent element, the question of reasonable excuse and how robust that was, the question of solicitation, which I know is very important in this context, and the question of whether it is really an international law matter. I have had the benefit of talking to the noble Lord, Lord Pannick, and surely the mischief is delivered and carried out here, so why is that an international law issue? There is also the question of deletion of data, which the noble Lord has explained pretty carefully, and the question of timing of knowledge of the offence having been committed.
The Minister needs to describe the stages at which those various elements are going to be contained in a government amendment. I understand that there may be a phasing, but there are a lot of assurances. As the noble Lord, Lord Stevenson, said, is it six or seven? How many assurances are we talking about? I very much hope that the Minister can see the sentiment and the importance we place on his assurances on these amendments, so I very much hope he is going to be able to give us the answers.
In conclusion, as the noble Baroness, Lady Morgan, said—and it is no bad thing to be able to wheel on a former Secretary of State at 9 o’clock in the evening—there is a clear link between gender-based violence and image-based abuse. This is something which motivates us hugely in favour of these amendments. I very much hope the Minister can give more assurance on the audio side of things as well, because we want future legislation to safeguard victims, improve prosecutions and deter potential perpetrators from committing image-based and audio-based abuse crimes.
Viscount Camrose (Con)
I thank the Minister and my noble friend Lady Owen for bringing these amendments to your Lordships’ House. Before I speak to the substance of the amendments, I join others in paying tribute to the tenacity, commitment and skill that my noble friend Lady Owen has shown throughout her campaign to ban these awful practices. She not only has argued her case powerfully and persuasively but, as others have remarked, seems to have figured out the machinery of this House in an uncanny way. Whatever else happens, she has the full support of these Benches.
I am pleased that the Government have engaged constructively with my noble friend and are seeking to bring this back at Third Reading. The Minister has been asked some questions and we all look forward with interest to his responses. I know from the speeches that we have heard that I am not alone in this House in believing that we have an opportunity here and now to create these offences, and we should not delay. For the sake of the many people who have been, and will otherwise be, victims of the creation of sexually explicit deepfakes, I urge the Government to continue to work with my noble friend Lady Owen to get this over the line as soon as possible.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all noble Lords who have spoken in this debate, including the noble Baronesses, Lady Owen and Lady Gohir. The Government of course share the concerns that have been expressed by noble Lords across the House. That is why we committed in our manifesto to criminalising the creation of sexually explicit deepfakes, and why we have been listening carefully to the issues and evidence that noble Lords and campaign groups have put forward on the best way to achieve our shared target of deterring people from creating these images and delivering justice to victims where this deterrent does not work.
As I made clear in my opening speech, the Government will not press Amendments 56A, 74A and 77. Instead, as I have set out, we intend to bring forward new amendments at Third Reading based on Amendment 69 tabled by the noble Baroness, Lady Owen, and drawing on aspects of Amendment 70. These will incorporate and address the issues raised during this debate. The new amendments will criminalise the intentional creation of an intimate image deepfake without consent or a reasonable belief of consent. This will not require any additional motivation. They will use the same definition of an “intimate state” as in the sharing intimate images offence. They will amend the Sentencing Code to ensure that the courts can deprive offenders of the relevant images if convicted of this offence, as well as any hardware on which they are stored.
We have agreed that we want to make it criminal to ask someone to create a sexual deepfake on your behalf, regardless of where they are in the world and regardless of whether the image is created. I remind the House that the Government are making a firm commitment that this will be done quickly. However, this is a complex area of law and any responsible Government should want to ensure that criminal law will function as intended.
I repeat my earlier commitment to provide an update on the specific issue of solicitation at Third Reading. The Government have not only heard the case put forward by noble Lords; they are acting to respond to those concerns and deliver these important changes. We must do this in a way that works alongside existing offences and will be effective in securing convictions, to make sure that victims will be protected and perpetrators brought to justice. I hope that the noble Baroness will bear this in mind as she considers whether to work with the Government ahead of Third Reading or press her amendments later this evening.
I will pick up some of the points made by noble Lords, starting with one made by the noble Baroness, Lady Morgan. I agree wholeheartedly with her point that it does not matter where the good ideas come from; we need to work across this House to try to implement the measures that the noble Baroness, Lady Owen, has inspired this House to support, if I can put it like that.
The noble Baroness, Lady Gohir, asked about audio. I am advised that this is a very novel and difficult aspect of law. While I will do absolutely everything I can in my current role as a Minister to move this forward, I am not in a position to give a more fulsome commitment to the amendment she seeks at this stage. However, I absolutely undertake that we will pursue this matter.
As I said, we commit to addressing solicitation at Third Reading, but the amendments will come back at whatever necessary stage in the House of Commons—so within this Bill. Of course, if any amendment is made there, this House can consider the matter again.
In summary, I hear the concerns that have been raised in this debate and it is my intention to act on those concerns, as far as possible. I hope the noble Baroness will not feel it is necessary to press her amendment, but, whether she presses it or not, I look forward to working with her on these issues in the weeks to come.
Lord Pannick (CB)
I just ask the Minister, before he sits down, whether he will address the point that the noble Lord, Lord Stevenson, raised. The Minister said that he will address matters at Third Reading, but of course he can address matters only if an amendment is brought forward. Is he accepting, as I hope he is, that if the Government do not bring forward some form of amendment for debate purposes at Third Reading, it would be entirely appropriate, and the Government would support the idea, that the noble Baroness, Lady Owen, could bring forward her own amendment at Third Reading for the purposes of further of further debate? Is he accepting that?
Lord Ponsonby of Shulbrede (Lab)
My Lords, the opening amendment in this group is a government amendment that we are withdrawing, so we are setting up the debate. There could be a similar mechanism at Third Reading. I do not know how it will actually be worked out, but there is an undertaking on behalf of the Government to say how far we have got on the solicitation issue, with a view to moving amendments in the other place.
Lord Stevenson of Balmacara (Lab)
Before the Minister sits down, that was exactly the point I was trying to make, and I am very grateful to the noble Lord, Lord Pannick, for raising it again. It does need the Minister to say to the clerk that it is possible for the noble Baroness, Lady Owen, to bring an amendment, if necessary, at Third Reading. If the Minister could repeat that at the Dispatch Box, I think we would both be happy.
Lord Ponsonby of Shulbrede (Lab)
Yes. If the noble Baroness wants to bring back a similar amendment on this issue, that indeed can be debated at Third Reading.
Baroness Owen of Alderley Edge (Con)
Before the noble Lord sits down, may I get his assurance that deletion will include cloud-based systems and physical copies? He mentioned hardware, but I would like the assurance on the additional physical copies, those held on any device, cloud-based system, digital, messaging or social media platform that a person controls, because you can post something to a personal account without actually having shared it with other people. I would like clarification around that.
Lord Ponsonby of Shulbrede (Lab)
That is certainly the intention of the legislation, but I am aware that it is extremely complex.
Baroness Owen of Alderley Edge (Con)
Before the noble Lord sits down again—forgive me—I am concerned about women being inadvertently timed out by the six-month limitation. Could the noble Lord address this point with a little more clarity please?
Lord Ponsonby of Shulbrede (Lab)
Yes, I understand the point the noble Baroness makes. but that is also something which we are willing to look at. The noble Baroness’s amendment was on the point at which a woman knows that has been such an intimate image abuse. I would point out to her that there may be many cases where the woman never knows that there has been such a type of abuse. I am thinking of previous legislation on upskirting. There have been successful convictions of people for upskirting where the woman never knew she was a victim and the images were of no particular determinate time. I understand the point the noble Baroness is making and I agree in general terms, but there may be a way of addressing the point, capturing the wider point I am making of women who may not know they are victims.
I beg leave to withdraw Amendment 56A.
Lord Bassam of Brighton
“Private copy levy on digital access(1) The Secretary of State may by regulations make provision for the establishment of an annual private copy levy, to be levied when online digital content is accessed or stored.(2) Before making regulations under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate.(3) The provisions made under subsection (1) must include but are not limited to—(a) establishing governance arrangements to calculate the rate and application of the levy,(b) permitting relevant copyright collecting societies to collect and distribute monies raised by the levy to rightsholder funds, and(c) distributing any surplus funds raised by the levy for the purposes of funding arts and cultural initiatives in the United Kingdom.(4) The Secretary of State must lay before Parliament a draft of the statutory instrument containing regulations under subsection (1) within six months of the day on which this Act is passed and the regulations are subject to the affirmative resolution procedure.(5) The Secretary of State must commission an annual transparency report on the operation of the levy.(6) The Secretary of State must lay the report made under subsection (5) before Parliament.”Member’s explanatory statement
This amendment seeks to allow the Secretary of State to establish a private copy levy for digital content, with revenue distributed to rightsholder funds and cultural initiatives.
Lord Bassam of Brighton (Lab)
My Lords, I beg to move the amendment in my name and those of the noble Lord, Lord Freyberg, and the noble Earl, Lord Clancarty. When this Bill was introduced, I rightly praised the vision of the Minister, the noble Baroness, Lady Jones, and the noble Lord, Lord Vallance, who has since taken it forward, in setting it in the context of driving economic growth, supporting modern digital government and improving citizens’ lives. Technological adoption has had a profound impact on creators and performers’ remuneration. This amendment seeks to ensure that tech and creative sectors can flourish together. While 81% of people consider accessing culture through digital devices important, UK creators face unprecedented challenges in making a living.
Research shows that median earnings for visual artists have decreased by some 47% to just £12,000 per annum since 2010, with over half forced to find second and other jobs. The last Labour Government left a legacy when they introduced the Artist’s Resale Right Regulations in 2006, which has, thankfully, stood the test of time in protecting over 130 million royalty payments for UK artists since its introduction.
It is my contention that we must help creators and artists flourish in this new digital environment without curtailing the use of digital technology. We would not expect other professions to work without payment. My amendment seeks to create what is described as the “smart fund” solution, inspired by private copying levies in 45 other jurisdictions. It requires manufacturers of electronic devices to make a one-off contribution when a new device is sold. This contribution is typically a small fraction of the device price. In Spain, the 2022 levy on a €909 smartphone was just over £1, or 0.12% of the sale price.
In France, €285.5 million was collected in 2022, with €212.3 million redistributed to artists and creators and over €70 million allocated to cultural projects. The Commons Culture, Media and Sport Select Committee has endorsed such proposals, estimating that this could generate between £250 million and £300 million a year in the UK, at no cost to the Government, taxpayer or consumers. If we release 25% of the total funds for arts and culture initiatives, as they do in France, that would generate an extra £75 million a year, which would more than double the £60 million that the Government announced in just the last week as a boost for creative industries.
It is my belief that we can learn from established smart funds in France, Germany and Spain on how to put in place the necessary governance to administer the smart fund, bringing together stakeholders and collecting societies to distribute to artists and use the funds to support arts and cultural purposes in high-need areas. This was particularly important post pandemic, when European countries made income from private copy levy available as part of their cultural recovery funds. Making funding available to our national arts and culture sector, as well as individuals, could help them get off their feet and turbocharge growth.
Evidence from similar smart funds shows no impact on retail device prices. Introducing a smart fund here would help align us with other European countries, addressing the challenge of artists accessing royalties from abroad. It is my contention that we must seize this opportunity to protect and reward creators in an increasingly digital environment. Creative industries contributed some £124 billion to the UK economy in the 12 months to June 2024; it is one of the fastest-growing sectors in the UK economy.
The Government agree with this; they have identified the creative industries as a growth-driving sector and want to encourage it. The smart fund can be a catalyst for further growth, due to both the potential of higher personal earnings and the multiplier effect of new arts and culture funding. We must avoid too many creators being locked out of this new potential prosperity.
In bringing forward this Bill, the Minister plays an integral role in bringing together different government departments, including DCMS, the Treasury and DSIT, to help and ensure that the digital and creative sectors flourish together. I commend the Minister for meeting me and other colleagues recently to discuss this. I realise that the amendment is not perfection in itself but if we want to do more for the creative and cultural sector, this is one way of doing it.
The Earl of Clancarty (CB)
My Lords, I added my name to the amendment in the name of the noble Lord, Lord Bassam, and I, too, thank the Minister for the constructive meeting we had about the smart fund. While the creative industries are hugely important to this country, as was made clear in an earlier debate, artists’ earnings have suffered a real battering. As the noble Lord, Lord Bassam, said, the Authors’ Licensing and Collecting Society reported that authors earning all their income from writing decreased from 40% in 2006 to 19% in 2022, and performers and visual artists have comparable concerns about their earnings. The smart fund would provide a useful additional—I emphasise “additional”—means of funding in terms of fair recompense for creators.
The smart fund would be managed by established copyright societies, which have a track record of fair payment to creators, regulated by the Collective Management of Copyright (EU Directive) Regulations 2016. So that infrastructure, to a great extent, already exists. European schemes successfully provide royalties to UK rights holders. However, as acknowledged by the Government, this is under threat due to Brexit and alignment with such schemes would be extremely helpful.
I understand that discussions between DACS, the IPO and the Government have now opened up, and these discussions need to include DCMS. I say to the Minister that it would be helpful if Chris Bryant were made aware of what is said in this debate. This scheme could be introduced at little or no cost, which would be a win-win for everybody. Finally, I thank DACS and the ALCS for their briefings for this debate.
Lord Freyberg (CB)
I support the amendment, to which I have attached my name, along with the noble Lord, Lord Bassam, and the noble Earl, Lord Clancarty. I declare my interest as a member of DACS, the Design and Artists Copyright Society, and I, too, thank the Minister for meeting us prior to this debate.
Today’s digital landscape presents unique and pressing challenges for visual artists that we can no longer ignore. A 2022 YouGov survey commissioned by DACS uncovered a revealing paradox in our digital culture. While 75% of people regularly access cultural content at least three times a week, with 63% downloading it for free, an overwhelming 72% of the same respondents actively support compensating artists for digital sharing of their work. These figures paint a stark picture of the disconnect between the public’s consumption habits and their ethical convictions about fair compensation.
The Netherlands offers a compelling blueprint for change through DACS’ partner organisation Pictoright. Its innovative private copying scheme has successfully adapted to modern consumption habits while protecting artists’ interests. Consider a common scenario in museums: visitors now routinely photograph artworks instead of purchasing traditional postcards. Under Pictoright’s system, artists receive fair compensation for these digital captures, demonstrating that we can embrace the convenience of digital access without sacrificing creators’ right to earn from their work. This proven model shows that the tension between accessibility and fair compensation is not insurmountable.
The smart fund offers a similar balanced solution for the UK. This approach would protect our cultural ecosystem while serving the interests of creators, platforms and the public alike. I hope the Government will look favourably upon this scheme.
Lord Clement-Jones (LD)
My Lords, I thank the noble Lord, Lord Bassam, for retabling his Committee amendment, which we did not manage to discuss. Sadly, it always appears to be discussed rather late in the evening, but I think that the time has come for this concept and I am glad that the Government are willing to explore it.
I will make two points. Many countries worldwide, including in the EU, have their own version of the smart fund to reward creators and performers for the private copy and use of their works and performances. Our own CMS Select Committee found that, despite the creative industries’ economic contribution—about which many noble Lords have talked—many skilled and successful professional creators are struggling to make a living from their work. The committee recommended that
“the Government work with the UK’s creative industries to introduce a statutory private copying scheme”.
This has a respectable provenance and is very much wanted by the collecting societies ALCS, BECS, Directors UK and DACS. Their letter said that the scheme could generate £250 million to £300 million a year for creatives, at no cost to the Government or to the taxpayer. What is not to like? They say that similar schemes are already in place in 45 countries globally, including most of Europe, and many of them include an additional contribution to public cultural funding. That could be totally game-changing. I very much hope that there is a fair wind behind this proposal.
Viscount Camrose (Con)
My Lords, I thank the noble Lord, Lord Bassam of Brighton, for laying this amendment and introducing the debate on it.
As I understand it, a private copying levy is a surcharge on the price of digital content. The idea is that the money raised from the surcharge is either redistributed directly to rights holders to compensate them for any loss suffered because of copies made under the private copying exceptions or contributed straight to other cultural events. I recognise what the noble Lord is seeking to achieve and very much support his intent.
I have two concerns. First—it may be that I have misunderstood it; if so, I would be grateful if the noble Lord would set me straight—it sounds very much like a new tax of some kind is being raised, albeit a very small one. Secondly, those who legitimately pay for digital content end up paying twice. Does this not incentivise more illegal copying?
We all agree how vital it is for those who create products of the mind to be fairly rewarded and incentivised for doing so. We are all concerned by the erosion of copyright or IP caused by both a global internet and increasingly sophisticated AI. Perhaps I could modestly refer the noble Lord to my Amendment 75 on digital watermarking, which I suggest may be a more proportionate means of achieving the same end or at least paving the way towards it. For now, we are unable to support Amendment 57 as drafted.
The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)
I thank my noble friend Lord Bassam for his Amendment 57 on the subject of private copying levies. It reinforces a point we discussed earlier about copying being covered by copyright.
The smart fund campaign seeks the introduction of a private copy levy. Such a levy would aim to indirectly compensate copyright owners for the unauthorised private copying of their works—for example, when a person takes a photo of an artwork or makes a copy of a CD—by paying copyright owners when devices capable of making private copies are sold.
Noble Lords may be aware that, in April 2024, the Culture, Media and Sport Committee recommended that the Government introduce a private copying levy similar to that proposed by this amendment. The Government’s response to that recommendation, published on 1 November, committed the Intellectual Property Office to meet with representatives from the creative industries to discuss how to strengthen the evidence base on this issue. That process is under way. I know that a meeting with the smart fund group is planned for next week, and I can confirm that DCMS is included and invited. I know that the IPO would be glad to meet my noble friend, as well as the noble Lord, Lord Freyberg, and the noble Earl, Lord Clancarty, to discuss this further. I also absolutely assure him that Chris Bryant is aware of this important issue and will be following this.
I am sure my noble friend will agree that it is essential that we properly engage and consider the case for intervention before legislating. Therefore, I hope he will be content to withdraw his amendment, to allow the Government the opportunity to properly explore these issues with creative and tech industry stakeholders.
Lord Bassam of Brighton (Lab)
My Lords, I will happily withdraw my amendment. I am delighted to hear of the progress that the Minister has set out. I view his comments as a positive endorsement of the progress made so far.
It is essential that we get more money into the hands of creators, who are an important driving force and part of our economy. It is essential too that we make more funds available for arts generally across the country. This is one way of doing it. The approach was endorsed in a recent Fabian Society publication, Arts For Us All. It identified a number of other potential sources for generating income that could be distributed to the arts and arts organisations.
I commend the Government for taking up the challenge posed by the smart fund and I look forward to playing my part, along with my colleagues on the Cross Benches and others who support this initiative. It could do much to strengthen the funding base for the arts as a cultural sector, which was sadly eroded by the previous Government over the last decade and a half. I beg leave to withdraw my amendment.
Baroness Kidron
“Sovereign data assets(1) The Secretary of State may by regulations define data sets held by public bodies and arm’s length institutions and other data sets that are held in the public interest as sovereign data assets (defined in subsection (6)).(2) In selecting data sets which may be designated as sovereign data assets, the Secretary of State must—(a) have regard to—(i) the security and privacy of United Kingdom data subjects;(ii) the ongoing value of the data assets;(iii) the rights of United Kingdom intellectual property holders;(iv) ongoing adherence to the values, laws and international obligations of the United Kingdom;(v) the requirement for public sector employees, researchers, companies and organisations headquartered in the United Kingdom to have preferential terms of access;(vi) the need for data to be stored in the United Kingdom, preferably in data centres in the United Kingdom;(vii) the need to design Application Programming Interfaces (APIs) as bridges between each sovereign data asset and the client software of the authorized licence holders;(b) consult with— (i) academics with expertise in the field;(ii) the AI Safety Institute;(iii) those with responsibility for large public data sets;(iv) data subjects;(v) the Information Commissioner.(3) The Secretary of State must establish a transparent licensing system, fully reflecting the security and privacy of data held on United Kingdom subjects, for use in providing access to sovereign data assets.(4) The Secretary of State must report annually to Parliament on the ongoing value of the sovereign data assets, in terms of—(a) their value to future users of the data;(b) the financial return expected when payment is made for the use of such data in such products and services as may be expected to be developed.(5) The National Audit Office must review the licensing system established by the Secretary of State under subsection (3) and report annually to Parliament as to its effectiveness in securing the ongoing security of the sovereign data assets.(6) In this section—“sovereign data asset” means—(a) data held by public bodies and arm’s length institutions of government;(b) data sets held by third parties that volunteer data to form, or contribute to, a public asset.(7) Regulations under this section are to be made by statutory instrument.(8) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
The UK has a number of unique publicly-held data assets, from NHS data to geospatial data and the BBC’s multimedia data. This amendment would create a special status for data held in the public interest, and a licensing scheme for providing access to them, which upholds UK laws and values, and ensure a fair return of financial benefits to the UK.
Baroness Kidron (CB)
My Lords, I will speak to both amendments in this group. Amendment 58, which is in my name and those of my noble friend Lord Tarassenko, and the noble Lords, Lord Stevenson and Lord Clement-Jones, seeks to ensure that the value of our publicly held large datasets is realised for the benefit of UK citizens. A full explanation of the amendment can be found at col. 162GC of Hansard. Amendment 71 is new and has a different approach to many of the same ends.
The speed at which the Government are giving access to our data is outpacing their plans to protect its financial or societal value. As we have seen over the last 24 hours, in which $1 trillion was wiped off the US AI sector and China provided a next gen proposal for AI—at least for the moment—technology moves at pace, but data is still the gold dust on which it rests.
Amendment 58 would require the Government to act as custodian of that vital asset. For example, they would need to decide the criteria for assigning publicly held data sets as a sovereign data asset, secure a valuation for that asset, and then be accountable for the decisions they took to protect that value and generate a return, both financial and societal, on behalf of the British public.
When that idea was proposed at Second Reading, the Minister said the Government’s proposal for a national data library would address those concerns. However, despite requests for further information from noble Lords in Committee, the Minister did not elaborate. That is a source of considerable frustration, given that in the same period no fewer than seven recommendations for the national data library in Matt Clifford’s AI action plan were fully accepted and widely trumpeted by the Government—including giving away BBC assets for free without asking the BBC.
Lord Tarassenko (CB)
My Lords, I speak in support of the noble Baroness, Lady Kidron, on Amendment 58, to which I have also put my name. Given the time, I will speak only about NHS datasets.
There have been three important developments since the Committee stage of this Bill in mid-December: the 43rd annual J P Morgan healthcare conference in San Francisco in mid-January, the launch of the AI Opportunities Action Plan by the Prime Minister on Monday 13 January and the announcement of the Stargate project in the White House the day after President Trump’s inauguration.
Taking these in reverse chronological order, it is not clear exactly how the Stargate project will be funded, but several US big tech companies and SoftBank has pledged tens of billions of dollars. At least $100 billion will be available to build the infrastructure for next-generation AI, and it may even rise to $500 billion in the next four years.
The UK cannot match these sums. The AI Opportunities Action Plan instead lays out how the UK can compete by using its own advantages: a long track record of world-leading AI research in our universities and some unique, hugely valuable datasets.
At the JP Morgan conference in San Francisco, senior NHS management had more than 40 meetings with AI companies. These companies all wanted to know one thing: how and when they could access NHS datasets.
It is not surprising, therefore, that it was reported in November that the national federated data platform would soon be used to train different types of AI models. The two models mentioned were Open AI’s proprietary ChatGPT and Google’s medical AI, Med-Gemini, based on Google’s proprietary large language model, Gemini. Presumably, these models will be fine-tuned using the data stored in the federated data platform.
Amendment 58 is not about restricting access to UK datasets by Open AI, Google or any other US big tech company. Instead, it seeks to maximise their long- term value, driven by strategic goals rather than short-term, opportunistic gains. By classifying valuable public sector datasets as sovereign data assets, we can ensure that the data is made available under controlled conditions, not only to public sector employees and researchers but to industry, including US big tech companies.
We should expect a financial return when industry is given access to a sovereign dataset. A first condition is a business model such that income is generated for the relevant public body, in this case the NHS, from the access fees paid by the companies that will be the authorised licence holders.
A second condition is signposted in the AI Opportunities Action Plan, whose recommendations have all been accepted by the Government. In the third section of the action plan, “Secure our future with homegrown AI”, Matt Clifford, the author of the plan, writes that
“we must be an AI maker, not just an AI taker: we need companies … that will be our UK national champions … Generating national champions will require a more activist approach”.
Part of this activist approach should be to give companies and organisations headquartered in the UK preferential terms of access to our sovereign data assets.
These datasets already exist in the NHS as minimum viable products, so we cannot afford to delay. AI companies are keen to access data in the federated data platform, which is NHS England’s responsibility, or in the secure data environments set up by the National Institute for Health and Care Research, NIHR.
I urge the Government to accept the principles of this amendment as they will provide the framework needed now to support NHS England and NIHR in their negotiations with AI companies.
Lord Stevenson of Balmacara (Lab)
I have signed Amendment 58. I also support the other amendment spoken to by the noble Baroness, although I did not get around to signing it. They both speak to the same questions, some of which have been touched on by both previous speakers.
My route into this was perhaps a little less analytic. I used to worry about the comment lots of people used to make, wittily, that data was the new oil, without really thinking about what that meant or what it could mean. It began to settle in my mind that, if indeed data is an asset, why is it not carried on people’s balance sheets? Why does data held by companies or even the Government not feature in some sort of valuation? Just like oil held in a company or privately, it will eventually be used in some way. That releases revenue that would otherwise have to be accounted for and there will be an accounting treatment. But as an accountant I have never seen any company’s assets that ever put a value on data. That is where I came from.
A sovereign data approach, which labels assets of value to the economy held by the country rather than a company, seems to be a way of trying to get into language what is more of an accounting approach than perhaps we need to spend time on in this debate. The noble Baroness, Lady Kidron, has gone through the amendment in a way that explains the process, the protection and the idea that it should be valued regularly and able to account for any returns it makes. We have also heard about the way it features in other publications.
I want to take a slightly different part of the AI Opportunities Action Plan, which talks about data and states:
“We should seek to responsibly unlock both public and private data sets to enable innovation by UK startups and researchers and to attract international talent and capital. As part of this, government needs to develop a more sophisticated understanding of the value of the data it holds, how this value can be responsibly realised, and how to ensure the preservation of public trust across all its work to unlock its data assets”.
These are very wise words.
I end by saying that I was very struck by the figures released recently about the number of people who opted out of the NHS’s data collection. I think there are Members present who may well be guilty of such a process. I of course am happy to have my data used in a way that will provide benefit, but I do recognise the risks if it is not properly documented and if people are not aware of what they are giving up or offering in return for the value that will be extracted from it.
I am sure we all want more research and better research. We want research that will yield results. We also want value and to be sure that the data we have given up, which is held on our behalf by various agencies, is properly managed. These amendments seem to provide a way forward and I recommend them.
Lord Freyberg (CB)
My Lords, I support Amendments 58 and 71, which address what I consider to be a fundamental oversight in our nation’s stewardship of public data assets.
While these amendments embrace intentionally broad definitions of sovereign data assets and a national data library, their purpose is precise: to recognise, protect and optimise the public value of these critical national resources for generations to come. The amendments’ dual emphasis on robust consent mechanisms and a transparent licensing framework—one that provides preferential access to UK entities—strikes a careful balance between fostering public trust and safeguarding our national interests.
Central to these amendments is the requirement for the Secretary of State to provide comprehensive reporting on both the current value and projected returns from these assets. This addresses a striking accountability gap in our governance framework. While the National Audit Office maintains rigorous oversight of our physical infrastructure, previous Administrations have failed to adequately account for the taxpayers’ substantial investment in public data infrastructure and intangible or knowledge assets.
Consider this striking disparity: Ernst & Young’s 2019 analysis projected that a curated NHS dataset could generate £5 billion annually for the UK, while delivering £4.6 billion in patient benefits through enhanced infrastructure. Yet we lack robust mechanisms to track whether these substantial benefits materialise or are captured and flow back into our healthcare system. This speaks directly to the Tony Blair Institute’s prescient call last year, endorsed by none other than the Minister, the noble Lord, Lord Vallance, for the establishment of an NHS data trust or comparable stewardship vehicle.
As we navigate an AI revolution, we must shift our focus from simply managing risks to proactively harnessing opportunities for social impact and economic growth. This raises two fundamental questions. How can we leverage this technological transformation to maximise public benefit, and how will Parliament effectively scrutinise future trade agreements, particularly with nations like the United States, without established evaluation methodologies or transparent licencing systems of our valuable data assets?
The British public, already bearing a significant tax burden to fund public services, deserves assurance that our valuable digital assets will not be transferred today, only to be transformed into expensive treatments tomorrow, benefiting companies that pay tax overseas. Amendments 58 and 71 provide essential safeguards against the inadvertent undervaluation or transfer of these critical national assets. They ensure proper stewardship of our digital resources for the public good, and I therefore support the intentions behind these amendments.
Lord Lucas (Con)
My Lords, I very much encourage the Government to go down this road. Everyone talks about the NHS just because the data is there and organised. If we establish a structure like this, there are other sources of data that we could develop to equivalent value. Education is the obvious one. What works in education? We have huge amounts of data, but we do nothing with it—both in schools and in higher education. What is happening to biodiversity? We do not presently collect the data or use it in the way we could, but if we had that, and if we took advantage of all the people who would be willing to help with that, we would end up with a hugely valuable national resource.
HMRC has a lot of information about employment and career patterns, none of which we use. We worry about what is happening and how we can improve seaside communities, but we do not collect the data which would enable us to do it. We could become a data-based society. This data needs guarding because it is not for general use—it is for our use, and this sort of structure seems a really good way of doing it. It is not just the NHS—there is a whole range of areas in which we could greatly benefit the UK.
Lord Clement-Jones (LD)
My Lords, all our speakers have made it clear that this is a here-and-now issue. The context has been set out by noble Lords, whether it is Stargate, the AI Opportunities Action Plan or, indeed, the Palantir contract with the NHS. This has been coming down the track for some years. There are Members on the Government Benches, such as the noble Lords, Lord Mitchell and Lord Hunt of Kings Heath, who have been telling us that we need to work out a fair way of deriving a proper financial return for the benefits of public data assets, and Future Care Capital has done likewise. The noble Lord, Lord Freyberg, has form in this area as well.
The Government’s plan for the national data library and the concept of sovereign data assets raises crucial questions about how to balance the potential benefits of data sharing with the need to protect individual rights, maintain public trust and make sure that we achieve proper value for our public digital assets. I know that the Minister has a particular interest in this area, and I hope he will carry forward the work, even if this amendment does not go through.
Viscount Camrose (Con)
I thank the noble Baroness, Lady Kidron, for moving her amendment. The amendments in this group seek to establish a new status for data held in the public interest, and to establish statutory oversight rules for a national data library. I was pleased during Committee to hear confirmation from the noble Baroness, Lady Jones of Whitchurch, that the Government are actively developing their policy on data held in the public interest and developing plans to use our data assets in a trustworthy and ethical way.
We of course agree that we need to get this policy right, and I understand the Government’s desire to continue their policy development. Given that this is an ongoing process, it would be helpful if the Government could give the House an indication of timescales. Can the Minister say when the Government will be in a position to update the House on any plans to introduce a new approach to data held in the public interest? Will the Government bring a statement to this House when plans for a national data library proceed to the next stage?
I suggest that a great deal of public concern about nationally held datasets is a result of uncertainty. The Minister was kind enough to arrange a briefing from his officials yesterday, and this emerged very strongly. There is a great deal of uncertainty about what is being proposed. What are the mechanics? What are the risks? What are the costs? What are the eventual benefits to UK plc? I urge the Minister, as and when he makes such a statement, to bring a maximum of clarity about these fundamental questions, because I suspect that many people in the public will find this deeply reassuring.
Given the stage the Government are at with these plans, we do not think it would be appropriate to legislate at this stage, but we of course reserve the right to revisit this issue in the future.
Lord Vallance of Balham (Lab)
I am grateful to the noble Baroness, Lady Kidron, and the noble Lord, Lord Tarassenko, for Amendments 58 and 71, one of which we also considered in Committee. I suspect that we are about to enter an area of broad agreement here. This is a very active policy area, and noble Lords are of course asking exactly the right questions of us. They are right to emphasise the need for speed.
I agree that it is essential that we ensure that legal and policy frameworks are fit for purpose for the modern demands and uses of data. This Government have been clear that they want to maximise the societal benefits from public sector data assets. I said in the House very recently that we need to ensure good data collection, high-quality curation and security, interoperability and ways of valuing data that secure appropriate value returns to the public sector.
On Amendment 58, my officials are considering how we approach the increased demand and opportunity of data, not just public sector data but data across our economy. This is so that we can benefit from the productivity and growth gains of improvements to access to data, and harness the opportunities, which are often greater when different datasets are combined. As part of this, we sought public views on this area as part of the industrial strategy consultation last year. We are examining our current approach to data licensing, data valuation and the legal framework that governs data sharing in the public sector.
Given the complexity, we need to do this in a considered manner, but we of course need to move quickly. Crucially, we must not betray the trust of people or the trust of those responsible for managing and safeguarding these precious data assets. From my time as chair of the Natural History Museum, I am aware that museums and galleries are considering approaches to this very carefully. The noble Lord, Lord Lucas, may well be interested to see some of the work going on on biodiversity datasets there, where there are huge collections of great value that we actually did put value against.
Of course, this issue cuts across the public sector, including colleagues from the Geospatial Commission, NHS, DHSC, National Archives, Department for Education, Ordnance Survey and Met Office, for example. My officials and I are very open to discussing the policy issues with noble Lords. I recently introduced the noble Lord, Lord Tarassenko, to officials from NHSE dealing with the data side of things there and linked him with the national data library to seek his input. As was referred to, yesterday, the noble Baroness, Lady Kidron, the noble Lords, Lord Clement-Jones, Lord Tarassenko and Lord Stevenson, and the noble Viscount, Lord Camrose, all met officials, and we remain open to continuing such in-depth conversations. I hope the noble Baroness appreciates that this is an area with active policy development and a key priority for the Government.
Turning to Amendment 71, also from the noble Baroness, I agree that the national data library represents an enormous opportunity for the United Kingdom to unlock the full value of our public data. I agree that the protection and care of our national data is essential. The scope of the national data library is not yet finalised, so it is not possible to confirm whether a new statutory body or specific statutory functions are the right way to do this. Our approach to the national data library will be guided by the principles of public law and the requirements of the UK’s data protection legislation, including the data protection principles and data subject rights. This will ensure that data sharing is fair, secure and preserves privacy. It will also ensure that we have clear mechanisms for both valuation and value capture. We have already sought, and continue to seek, advice from experts on these issues, including work from the independent Prime Minister’s Council for Science and Technology. The noble Lord, Lord Freyberg, also referred to the work that I was involved with previously at the Tony Blair Institute.
The NDL is still in the early stages of development. Establishing it on a statutory footing at this point would be inappropriate, as work on its design is currently under way. We will engage and consult with a broad range of stakeholders on the national data library in due course, including Members of both Houses.
The Government recognise that our data and its underpinning infrastructure is a strategic national asset. Indeed, it is for that reason that we started by designating the data centres as critical national infrastructure. As the subjects of these amendments remain an active area of policy development, I ask the noble Baroness to withdraw her amendment.
Baroness Kidron (CB)
I am grateful for a breakout of agreement at this time of night; that is delightful. I agree with everything that the Minister said, but one thing we have not mentioned is the incredible cost of managing the data and the investment required. I support the Government investing to get the value out, as I believe other noble Lords do, and I would just like to put that point on record.
We had a meeting yesterday and thought it was going to be about data assets, but it turned out to be about data communities, which we had debated the week before. Officials said that it was incredibly useful, and it might have been a lot quicker if they had had it earlier. In echoing what was said in the amendment of the noble Baroness, Lady Owen, there is considerable interest and expertise, and I would love to see the Government move faster, possibly with the help of noble Lords. With that, I beg leave to withdraw the amendment.
Lord Holmes of Richmond
“Data use: review of large language models(1) On the day on which this Act is passed, the Secretary of State must launch a review to consider the introduction of standards for the input and output of data of large language models which operate and generate revenue in the United Kingdom.(2) The review must consider—(a) the applicability of similar standards, such as those that already exist in industries such as pharmaceuticals, food and drinks,(b) whether there is a need for legislative clarity under section 27 of the Copyright, Designs and Patents Act 1988 about whether the input and output of large language models constitute an “article”, and(c) whether a minimum standard should be a condition for market access.”
Lord Holmes of Richmond (Con)
My Lords, in moving Amendment 59, I shall also speak to Amendments 60 and 66 in my name.
AI has been a recurrent theme running through most, if not all, our discussions on the Bill, because it is utterly absent from the Bill. It seems extraordinary: what is AI without data, and what is a data Bill without AI being considered? It is difficult to see how we will have the clarity, consistency and coherence of approach to address the opportunities and challenges of all these new technologies, not least artificial intelligence, when it has remained absent from the Bill by government design.
Amendment 59 asks about the categorisation and classification of large language models in the UK in terms of the data input and the output from those models. Will the Minister specifically address his comments on this amendment to the issues around Section 27 of the copyright Act of 1988 and how that interacts with the needs of LLMs, whether there should be issues around market access for these large tech companies and whether LLMs in themselves constitute an article under the 1988 Act?
If AI is absent from the Bill by government design, perhaps even more curiously, data centres are largely absent. If AI is nothing without data, what is data without data centres? They are the factories and the boundaries fuelling this new fourth industrial revolution. Data has often been described as the new oil; I suggest that it is nothing of the sort, but we need so much actual new oil—that is, the renewables and SMRs—if we are to power this fourth industrial revolution, not least the data centres therein.
Amendment 60 looks at the current supply of data centres. Is the Minister satisfied not just with how quickly the Government plan to have data centres coming onstream but how possible it is for them to be in places where they can be hooked up to the grid, not just for existing fuels but, crucially, for renewables and potentially SMR technologies, which will absolutely be required if this fourth industrial revolution is to be not only efficient and effective but sustainable?
Lord Clement-Jones (LD)
My Lords, we have had some discussion already this week on data centres. The noble Lord, Lord Holmes, is absolutely right to raise this broad issue, but I was reassured to hear from the noble Lord, Lord Hunt of Kings Heath, earlier in the week that the building of data centres, their energy requirements and their need may well be included in NESO’s strategic spatial energy plan and the centralised strategic network plan. Clearly, in one part of the forest there is a great deal of discussion about energy use and the energy needs of data centres. What is less clear and, in a sense, reflected in the opportunities plan is exactly how the Government will decide the location of these data centres, which clearly—at least on current thinking about the needs of large language models, AI and so on—will be needed. It is about where they will be and how that will be decided. If the Minister can cast any light on that, we would all be grateful.
Viscount Camrose (Con)
I thank my noble friend Lord Holmes of Richmond for moving this amendment. Amendment 59 is an important amendment that addresses some of the key issues relating to large language models. We know that large language models have huge potential, and I agree with him that the Government should keep this under review. Perhaps the noble Baroness, Lady Jones of Whitchurch, would be willing to update the House on the Government’s policy on large language model regulation on her return.
Data centre availability is another emerging issue as we see growth in this sector. My noble friend is absolutely right to bring this to the attention of the House. We firmly agree that we will have a growing need for additional data centres. In Committee, the noble Baroness, Lady Jones, did not respond substantively to Amendments 60 and 66 from my noble friend on data centres, which I believe was—not wholly unreasonably—to speed the Committee to its conclusion just before Christmas. I hope the Minister can give the House a fuller response on this today, as it would be very helpful to hear what the Government’s plans are on the need for additional data centres.
Lord Vallance of Balham (Lab)
My Lords, I thank the noble Lord, Lord Holmes, for his amendments on reviews of and consultations on large language models and data centres. First, on Amendment 59, as we have discussed in some detail, the Government are conducting their consultation on copyright and AI. This will consider issues relating to transparency of creative content in both input and output of AI. This would apply not just to large language models but to other forms of AI. Questions on the wider copyright framework are also included in the consultation, including the issue of models trained in other jurisdictions, importation and enforcement provisions.
A review of large language models, as required by this amendment, as well as the consideration of the specific provisions of copyright law, would prejudge the outcome of that consultation. I might even go so far as to say to noble Lords that the consultation and the process around it is, in a sense, the very review that this amendment seeks—or at least a range of ways may be suggested through that consultation to address these issues, which are important and might be more effective than a further review. I also remind noble Lords about the AI Safety Institute, which, of course, has a duty to look at some of the safety issues around these models.
I reassure noble Lords that we welcome those suggestions and will carefully consider which parts of the copyright framework would benefit from amendment. I reiterate that the proposals the Government have put forward on copyright and AI training will not affect the wider application of copyright law. If a model were to output a creator’s work without their permission, rights holders would be able to take action, as they are at present.
On Amendment 60, as the Prime Minister laid out as part of the AI opportunities action plan, this Government intend to secure more data centre capacity and ensure that it is delivered as sustainably as possible. Noble Lords will have also noted the investment that followed the investment summit targeted towards data centres. The Government are committed to ensuring that any negative impact of data centres is, where possible, minimised and that sustainability is considered. The noble Lord may well be aware of the creation of the AI energy council, which will be led by Secretaries of State for DSIT and DESNZ. That will consider the energy requirements and, of course, the need for future energy requirements, including things such as SMRs. The Government recognise the aim of this amendment, but we do not feel this Bill is the place to address this issue. The accompanying notes to the Bill will detail its environmental impacts.
Amendment 66 calls for a consultation on data centre power usage. The UK has committed to decarbonising the electricity system by 2030, subject to security of supply, and data centres will increasingly be powered by renewable energy resources. The first data centre site has been identified as Culham. Why is it there? It is because the UK Atomic Energy Authority has a very large power supply, with some 100 megawatts of electricity supply available. That will need to increase to something closer to 500 megawatts. How we will select other data centre sites will depend on where there is power and an appropriate ability to put those sites. Noble Lords can expect them to be distributed around the UK. The sector operates under a climate change agreement, to encourage greater uptake of energy-efficiency measures among operators.
Data centres themselves, of course, play a major part in powering the high-tech solutions to environmental challenges, whether that is new tech that increases the efficiency of energy use across towns and cities or development and application of innovative materials and new technologies that take carbon out of the atmosphere. The energy efficiency of data centres themselves is improving with new technologies and will continue to do so. Perhaps that was one of the features of the announcement of DeepSeek—exactly how that might advance rather rapidly. Closed-loop cooling, energy-efficient hardware, heat reuse and hot/cold aisle containment are already having an effect on the energy consumption and output of data centres.
The Government continue to monitor the data centre industry and are aware of the environmental impacts of data centres. I hope that, in the light of the points I raised, the noble Lord will be content not to press his amendments.
Lord Holmes of Richmond (Con)
I thank everyone who took part in this short debate, in particular the Minister for that full, clear and helpful answer. In a spirit of throwing roses at this stage of the evening, I congratulate him and the Government on the quick identification and implementation of Culham as the first site for one of these centres. It makes complete sense—as he says, the power already exists there. I urge the Government to move with such speed for the remaining five of the first six sites. It makes complete sense to move at speed to identify these resources and the wider benefits they can bring to the communities where they will be located. For now, I am content to withdraw the amendment.
Baroness Kidron
“Compliance with UK copyright law by operators of web crawlers and general-purpose AI models(1) The Secretary of State must by regulations make provision (including any such provision as might be made by Act of Parliament), requiring the operators of web crawlers and general-purpose artificial intelligence (AI) models whose services have links with the United Kingdom within the meaning of section 4(5) of the Online Safety Act 2023 to comply with United Kingdom copyright law, including the Copyright, Designs and Patents Act 1988, regardless of the jurisdiction in which the copyright-relevant acts relating to the pre-training, development and operation of those web crawlers and general-purpose AI models take place.(2) Provision made under subsection (1) must apply to the entire lifecycle of a general-purpose AI model, including but not limited to—(a) pre-training and training, (b) fine tuning,(c) grounding and retrieval-augmented generation, and(d) the collection of data for the said purposes.(4) The Secretary of State must lay before Parliament a draft of the statutory instrument containing regulations under subsection (1) within six months of the day on which this Act is passed and the regulations are subject to the affirmative procedure.”Member’s explanatory statement
This amendment is part of a group of amendments that would clarify the requirement for web-crawlers and other “data gatherers” to observe UK copyright law. This is to counter the wide spread theft of IP by AI companies who use it as raw material for their products.
“Transparency of crawler identity, purpose, and segmentation(1) The Secretary of State must by regulations make provision requiring operators of web crawlers and general-purpose artificial intelligence (AI) models whose services have links with the United Kingdom within the meaning of section 4(5) of the Online Safety Act 2023 to disclose information regarding the identity of crawlers used by them or by third parties on their behalf, including but not limited to—(a) the name of the crawler,(b) the legal entity responsible for the crawler,(c) the specific purposes for which each crawler is used,(d) the legal entities to which operators provide data scraped by the crawlers they operate, and(e) a single point of contact to enable copyright owners to communicate with them and to lodge complaints about the use of their copyrighted works.(2) The information disclosed under subsection (1) must be available on an easily accessible platform and updated at the same time as any change.(3) The Secretary of State must by regulations make provision requiring operators of web crawlers and general-purpose AI models to deploy distinct crawlers for different purposes, including but not limited to—(a) web indexing for search engine results pages,(b) general-purpose AI model pre-training, and(c) retrieval-augmented generation.(4) The Secretary of State must by regulations make provision requiring operators of web crawlers and general-purpose AI models to ensure that the exclusion of a crawler by a copyright owner does not negatively impact the findability of the copyright owner’s content in a search engine.(5) The Secretary of State must lay before Parliament a draft of the statutory instrument containing regulations under this section within six months of the day on which this Act is passed and the regulations are subject to the affirmative procedure.”Member’s explanatory statement
This amendment is part of a group of amendments that would clarify the requirement for web-crawlers and other “data gatherers” to observe UK copyright law. This amendment requires the SoS to set out strict transparency requirements for web crawlers so that it is possible for IP holders to identify the owners of webcrawlers.
“Transparency of copyrighted works scraped(1) The Secretary of State must by regulations make provision requiring operators of web crawlers and general-purpose artificial intelligence (AI) models whose services have links with the United Kingdom within the meaning of section 4(5) of the Online Safety Act 2023 to disclose information regarding text and data used in the pre-training, training and fine-tuning of general-purpose AI models, including but not limited to— (a) the URLs accessed by crawlers deployed by them or by third parties on their behalf or from whom they have obtained text or data,(b) the text and data used for the pre-training, training and fine-tuning, including the type and provenance of the text and data and the means by which it was obtained,(c) information that can be used to identify individual works, and(d) the timeframe of data collection.(2) The disclosure of information under subsection (1) must be updated on a monthly basis in such form as the regulations may prescribe and be published in such manner as the regulations may prescribe so as to ensure that it is accessible to copyright owners upon request.(3) The Secretary of State must lay before Parliament a draft of the statutory instrument containing regulations under subsection (1) within six months of the day on which this Act is passed and the regulations are subject to the affirmative procedure.”Member’s explanatory statement
This amendment is part of a group of amendments that would clarify the requirement for web-crawlers and other “data gatherers” to observe UK copyright law. This amendment requires the SoS to set out transparency requirements that would allow copyright holders to identify when and from where their work has been taken.
“Enforcement(1) The Secretary of State must by regulations make provision requiring the Information Commission (under section 114 of the Data Protection Act 2018) (“the Commissioner”) to monitor and secure compliance with the duties under sections (Transparency of crawler identity, purpose, and segmentation) and (Transparency of copyrighted works scraped) (“the duties”) by an operator of a web crawler or general-purpose artificial intelligence (AI) model whose service has links with the United Kingdom within the meaning of section 4(5) of the Online Safety Act 2023 (“a relevant operator”), including but not limited to the following—(a) the regulations must provide for the Commissioner to have the power by written notice (an "information notice”) to require a relevant operator to provide the Commissioner with information that the Commissioner reasonably requires for the purposes of investigating a suspected failure to comply with the duties;(b) the regulations must provide for the Commissioner to have the power by written notice (an "assessment notice") to require and to permit the Commissioner to carry out an assessment of whether a relevant operator has complied or is complying with the duties and to require a relevant operator to do any of the acts set out in section 146(2) of the Data Protection Act 2018;(c) the regulations must provide that where the Commissioner is satisfied that a relevant operator has failed, or is failing to comply with the duties, the Commissioner may give the relevant operator a written notice (an "enforcement notice") which requires it—(i) to take steps specified in the notice, or(ii) to refrain from taking steps specified in the notice;(d) the regulations must provide that where the Commissioner is satisfied that a relevant operator has failed or is failing to comply with the duties or has failed to comply with an information notice, an assessment notice or an enforcement notice, the Commissioner may, by written notice (a "penalty notice"), require the person to pay to the Commissioner an amount in sterling specified in the notice, the maximum amount of the penalty that may be imposed by a penalty notice being the "higher maximum amount" as defined in section 157 of the Data Protection Act 2018; (e) the regulations may provide for the procedure and rights of appeal in relation to the giving of an information notice, an assessment notice, an enforcement notice or a penalty notice.(2) The regulations must provide that any failure to comply with the duties by a relevant operator shall be directly actionable by any copyright owner who is adversely affected by such failure, and that such copyright owner will be entitled to recover damages for any loss suffered and to injunctive relief.(3) The regulations must provide that the powers of the Commissioner and the rights of a copyright owner will apply in relation to a relevant operator providing a service from outside the United Kingdom (as well as such one provided from within the United Kingdom).(4) The Secretary of State must lay before Parliament a draft of the statutory instrument containing the regulations under this section within six months of the day on which this Act is passed and the regulations are subject to the affirmative procedure.”Member’s explanatory statement
This amendment is part of a group of amendments that would clarify the requirement for web-crawlers and other “data gatherers” to observe UK copyright law. This amendment creates an enforcement procedure in line with the Data Protection Act 2018.
“Technical solutions(1) The Secretary of State must conduct a review of the technical solutions that may be adopted by copyright owners and by the operators of web crawlers and general-purpose artificial intelligence (AI) models whose services have links with the United Kingdom within the meaning of section 4(5) of the Online Safety Act 2023 to prevent and to identify the unauthorised scraping or other unauthorised use of copyright owners’ text and data.(2) Within 18 months of the day on which this Act is passed, the Secretary of State must report on such technical solutions and must issue guidance as to the technical solutions to be adopted and other recommendations for the protection of the interests of copyright owners.”
Lord Lucas
“Data dictionary(1) The Secretary of State may make regulations establishing the definitions and associated metadata for core personal data attributes, and may require that these definitions are used in relation to—(a) Part 2 of this Act (digital verification services);(b) Part 4 of this Act (registers of births and deaths);(c) Part 7 of this Act (other provision about use of, or access to, data);(d) personal data recorded by public authorities in general.(2) Regulations under this section are subject to the negative resolution procedure.”Member’s explanatory statement
This amendment is to ensure consistency of definition of key personal attributes across government and over time, e.g. definition of “sex”.
Lord Lucas (Con)
My Lords, if we are to live in a data-rich world, we really need a set of well-understood, good definitions for the basic information we are collecting. At the moment, age is about the only stable personal characteristic, in that we generally know where it comes from, where it is recorded and can trust it. Name has become unstable: people are using name changing to hide previous criminal convictions, because we do not have a system of linking one name with another. Residence is widely abused by people who want to get their kids into the school of their preference.
Disability, ethnicity, sexuality and religion are all self-identified. We really need to understand why we are basing policy on something that is self-identified and whether we are collecting the right information for the policy uses we are making of it, particularly when, in areas such as employment, we are encouraging people to make particular choices because they are favoured in the employment advertisements. There is a collection of information there which we really ought to make an effort to be clear about if we are to make proper use of it and understand data going down the decades.
The definition we ought to do something about now is the protected characteristic of sex, because the misuse of sex and its conflation with gender has caused a whole suite of disadvantages and corruptions in the system. Basically, sex is simple: there are only two sexes. For the huge majority of humans, you can easily determine which sex they are. There are some for whom it is harder, but there are still only two sexes. We are in a situation where we record sex and use it to provide safe spaces for women, to have female sports, to know which prison to put someone in, to know how to record crime and, presumably, to know what action to take as a result of it.
Sex and knowing how women are doing is a really important thing to collect accurately, because there is a whole suite of areas in which women have been historically disadvantaged, such as in employment. It is well known that the standards in medical care have been set on men, not women, which has led to a series of disadvantages. We need accurate data. To my mind, rules based on reality and truth that are then adapted to people are much better than rules based on the way we wished things were, then trying to reconcile that with the truth.
We would do better for everybody—women in particular, but also people who identify as trans—if we based our description of them, when it comes to sex, on the truth. We would provide better healthcare, better protection, a much easier attitude to integration into society and proper provision for them. We should seek to do this. Truth should be the base of how we collect data; we should really insist on that. We should not corrupt our data but adapt our practice. I beg to move.
Lord Arbuthnot of Edrom (Con)
My Lords, this one should be easy. Last week, we passed amendments that said that the public authorities, in recording data on matters including sex, should do so accurately. Some might think that that should not be particularly controversial. This amendment says that the Government “may make regulations” about definitions of that sort of thing—that is “may”, not must. It is a negative resolution, not a positive one. It is not difficult, so let us do it.
The Earl of Erroll (CB)
My Lords, I spoke on this before, and I will repeat what I said previously. The only way out of this one is to have two fields against someone: one that we will call “sex” and another that we will call “gender”. I will use the terminology of the noble Lord, Lord Lucas, for this. “Sex” is what you are biologically and were born, and that you cannot change. There are instances where we need to use that field, particularly when it comes to delivering medicine to people—knowing how you treat them medically—and, possibly, in other things such as sports. There are one or two areas where we need to know what they are biologically.
Then we have another field which is called “gender”. In society, in many cases, we wish that people did not have to go around saying that they are not what they were born but what they want to be—but I do not have a problem with that. We could use that field where society decides that people can use it, such as on passports, other documents and identity cards—all sorts of things like that. It does not matter; I am not worried about what someone wants to call themselves or how they want to present themselves to society.
Researchers will have the “sex” field, and they can carry out medical research— they can find out about all the different things related to that—and, societally, we can use the other field for how people wish to project themselves in public. That way we can play around with what you are allowed to use in what scenarios; it allows you to do both. What we need is two fields; it will solve a lot of problems.
Lord Clement-Jones (LD)
My Lords, it is clear that Amendment 67 in the name of the noble Lord, Lord Lucas, is very much of a piece with the amendments that were debated and passed last week. On these Benches, our approach will be exactly the same. Indeed, we can rely on what the Minister said last week, when he gave a considerable assurance:
“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”.—[Official Report, 21/1/25; col. 1620.]
That is, the work of the Central Digital and Data Office. We are content to rely on his assurance.
Viscount Camrose (Con)
I thank my noble friend Lord Lucas for bringing his Amendment 67, which builds on his previous work to ensure accuracy of data. On these Benches, we agree wholeheartedly with him that the information we have access to—for example, to verify documents—must be accurate. His amendment would allow the Secretary of State to make regulations establishing definitions under the Bill for the purposes of digital verification services, registers of births and deaths, and other provisions. Crucially, this would enable the Government to put measures in place to ensure the consistency of the definitions of key personal attributes, including sex. We agree that consistency and accuracy of data is vital. We supported him on the first day at Report, and, if he pushes his amendment to a Division, we will support him today.
Lord Vallance of Balham (Lab)
Amendment 67, tabled by the noble Lord, Lord Lucas, would require terms relating to personal attributes to be defined consistently across government data. The Government believe that public sector data should continue to be collected based on user needs for data and any applicable legislation, but I fully recognise the need for standards and consistency in data required for research and evaluation. Harmonisation creates more meaningful statistics that allow users to better understand a topic. It is also an important part of the code of practice for statistics; the code recommends using harmonised standards unless there is a good reason not to.
As I set out in last week’s debate, the Government believe that data accuracy is essential to deliver services that meet citizens’ needs and ensure accurate evaluation and research as a result of that. I will set out to the noble Lord some work that is ongoing in this space. The Office for Statistics Regulation published guidance on collecting and reporting data about sex and gender identity in February 2024, and the Government Statistical Service published a work plan for updated harmonised standards and guidance on sex and gender identity in December 2024 and will take into account the needs for accurate metadata. The Sullivan review explores these issues in detail and should be published shortly; it will be taken into account as the work progresses. In addition, the Government Digital Service has 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 between public authorities.
This work has been commenced via the domain expert group on the “person” entity, which has representation from organisations including the Home Office, HMRC, the Office for National Statistics, 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 ensure consistency across organisations.
As I said last week, it is the Government’s belief that these matters are crucial and need to be considered carefully, but are more appropriately considered holistically outside this Bill. The intention of this Bill is not to define or remark on the specific definitions of sex or gender, or other aspects of data definition. It is, of course, to make sure that the data that is collected can be made available, and I have reiterated my point that the data needs to be both based in truth and consistent and clear. There is work going on to make these new regulations and approaches to this absolutely clear. As such, I urge the noble Lord to consider withdrawing his amendment.
Lord Lucas (Con)
My Lords, I am very grateful to the Minister for that explanation. I am particularly glad to know that the Sullivan review will be published soon—I look forward very much to reading that—and I am pleased by the direction the Government are moving in. None the less, we only get a Bill every now and again. I do think we need to give the Government the powers that this amendment offers. I would hate noble Lords opposite to feel that they had stayed here this late to no purpose, so I beg leave to test the opinion of the House.
Baroness Kidron
“Reliability of computer-based evidence(1) Electronic evidence produced by or derived from a computer, device or computer system (separately or together “system”) may be relied on as evidence in any proceedings —(a) where that electronic evidence is not challenged;(b) where the court is satisfied that the electronic evidence is derived from a reliable system or otherwise the court is satisfied that the evidence is reliable.(2) Rules of Court must provide that electronic evidence sought to be relied upon by a party in any proceedings may be challenged by another party as to its correctness.(3) For the purposes of subsection (1)(a), Rules of Court must provide for the circumstances in which the Court may be satisfied that the admissibility of electronic evidence cannot reasonably be challenged. (4) For the purposes of subsection (1)(b), the matters that may be taken into account by the court in determining if a system is to be considered reliable include—(a) whether the evidence is wholly obtained from a regulated system (such as a speed camera and DVLA database);(b) the errors that have been reported in the system, the actions taken to correct them, and any errors that remain uncorrected (these may include the Known Error Log and Release Notices);(c) the measures taken to ensure that the electronic evidence accurately records the facts that are being claimed (including measures to block, record and manage cyberattacks);(d) the forensic measures taken to ensure that the electronic evidence has not been affected by accidental, privileged or unauthorised access;(e) the route that the electronic evidence has taken from the originating system to the court and the measures taken to ensure its integrity;(f) external independent audit of the system.(5) If the materials under subsection (4) are not available or if the materials produced for the purposes of subsection (4) are considered by the court to be insufficient for the court to conclude that the system is reliable for the purposes of subsection (1)(b), the party seeking to rely upon the electronic evidence must otherwise satisfy the court that that evidence is reliable.(6) For the purposes of this section—“computer” means any device capable of performing mathematical or logical instructions;“device” means any apparatus or tool operating alone or connected to other apparatus or tools, that processes information or data in electronic form;“electronic evidence” means evidence derived from data contained in or produced by any device or computer the functioning of which depends on a software program or from data stored on a computer, device or computer system or communicated over a networked computer system.”
Baroness Kidron (CB)
My Lords, I move Amendment 68 in my name and those of the noble Lords, Lord Arbuthnot, Lord Holmes and Lord Clement-Jones. This amendment has been debated several times within this Bill and its predecessor; however, this version differs slightly in approach. The objective remains the same: to overturn the common-law assumption in both civil and criminal law that computers are infallible.
This assumption has led to untold injustice. Innocent people have lost their lives, freedom and livelihoods because the law wrongly assumed that computers are never wrong. This of course is nonsense, as explained in detail in our last debate, at column GC 153 of Hansard. In summary, computer systems are very susceptible to both human and technological error. Indeed, the presence of bugs is normal, anticipated and routine in all contexts other than the court.
As with previous iterations of this amendment, Amendment 68 overturns that common-law assumption, but the drafting now closely mirrors provisions under the Electronic Trade Documents Act 2023, which was enacted in recognition that the majority of trade documents are now electronic.
The ETDA ensures and assures the integrity of electronic trade documents. It was put in place to protect those on both sides of the trade, so I am curious, at the very least, as to why we will be able to consider the efficacy of computer evidence in relation to trade but not in our legal system. I am also concerned that the MoJ, under several Governments, has been so slow to recognise the scale of the problem of this assumption, which one of my most experienced computer science colleagues described as “wicked nonsense”.
In brief, the amendment provides that the electronic evidence produced by or derived from a computer may be relied upon as evidence where that evidence is not challenged and where the court is satisfied that the evidence can be relied upon. The rest of the amendment is carefully drafted by legal experts and computer scientists with legal expertise to support the court in coming to a meaningful assessment of whether to be satisfied, or not, that the evidence can be relied upon.
This proposal has been tried and tested within our legal system. We know that it works, and I therefore see no reason why the Government should not simply accept it. However, rather than discuss it, the Government chose to announce, last week, a consultation on computer evidence. The call for evidence is a source of significant frustration for those of us who have championed this issue, as is the fact that the promised meeting with the MoJ did not happen before that announcement, in spite of repeated requests.
In her introductory remarks to the consultation, the Minister for Justice, Sarah Sackman, says that the purpose of the consultation is to help her department
“better understand how the current presumption concerning the admissibility of computer evidence is working in practice, and whether it is fit for purpose in the modern world”.
This is a backward step. The evidence that presumption is not working and is not fit for purpose is overwhelming and decades long; what are needed now are solutions, one of which is before us tonight.
Moreover, the Government’s preference for doing everything behind doors has sunk their own consultation. Had experts been consulted, the first thing they would have pointed out is that the scope is insufficient because it does not address civil proceedings but only criminal proceedings, even though the presumption is the same for both. This means that, at best, the Government’s consultation can lead only to a partial solution.
We in this House have discussed this issue in the case of the postmasters; it is a case that is front of mind. This approach may have spared those postmasters who were subject to criminal prosecutions, but not those such as Lee Castleton who was subject to civil proceedings by the Post Office, which chased him to bankruptcy. He was also branded a thief, spat at and verbally abused in the street. He developed post-traumatic stress disorder. His wife developed epilepsy from stress, his daughter developed an eating disorder and his son remains so traumatised that he cannot be in a room where someone says the words “Post Office”. A solution that does not prevent the injustice done to Lee and his family from happening to others is not fit for purpose. If the MoJ had done us the courtesy of a meeting, this could have been avoided.
I am sure the Minister will assure us that the Government are acting, but for those whose lives have been ruined, those who have fought for too many years on this issue, the consultation creates the spectre of yet another battle and further delay when the solutions are here and at hand. I want nothing more than to be wrong on this, and for the Government to prove me wrong. But for past victims, for lawyers and experts who have given their time so generously, and for those whose lives will be ruined because the computer got it wrong, half a consultation on a matter so well-established and urgent is a pretty poor result. I beg to move.
Lord Arbuthnot of Edrom (Con)
My Lords, as so often, I listened with awe to the noble Baroness. Apart from saying that I agree with her wholeheartedly, which I do, there is really no need for me for me to add anything, so I will not.
Lord Clement-Jones (LD)
My Lords, I too am lost in admiration for the noble Baroness, Lady Kidron—still firing on all cylinders at this time of night. Current law is clearly out of touch with the reality of computer systems. It assumes an untruth about computer reliability that has led to significant injustice. We know that that assumption has contributed to miscarriages of justice, such as the Horizon scandal.
Unlike the amendment in Committee, Amendment 68 does not address the reliability of computers themselves but focuses rather on the computer evidence presented in court. That is a crucial distinction as it seeks to establish a framework for evaluating the validity of the evidence presented, rather than questioning the inherent reliability of computers. We believe that the amendment would be a crucial step towards ensuring fairness and accuracy in legal proceedings by enabling courts to evaluate computer evidence effectively. It offers a balanced approach that would protect the interests of both the prosecution and the defence, ensuring that justice is served. The Government really must move on this.
Viscount Camrose (Con)
I thank the noble Baroness, Lady Kidron, for her amendments. The reliability of computer-based evidence, needless to say, has come into powerful public focus following the Post Office Horizon scandal and the postmasters’ subsequent fight for justice. As the noble Baroness has said previously and indeed tonight, this goes far beyond the Horizon scandal. We accept that there is an issue with the way in which the presumption that computer evidence is reliable is applied in legal proceedings.
The Government accepted in Committee that this is an issue. While we have concerns about the way that the noble Baroness’s amendment is drafted, we hope the Minister will take the opportunity today to set out clearly the work that the Government are doing in this area. In particular, we welcome the Government’s recently opened call for evidence, and we hope Ministers will work quickly to address this issue.
Lord Vallance of Balham (Lab)
Amendment 68 from the noble Baroness, Lady Kidron, aims to prevent future miscarriages of justice, such as the appalling Horizon scandal. I thank the noble Baroness and, of course, the noble Lord, Lord Arbuthnot, for the commitment to ensuring that this important issue is debated. The Government absolutely recognise that the law in this area needs to be reviewed. Noble Lords will of course be aware that any changes to the legal position would have significant ramifications for the whole justice system and are well beyond the scope of this Bill.
I am glad to be able to update the noble Baroness on this topic since Committee. On 21 January the Ministry of Justice launched a call for evidence on this subject. That will close on 15 April, and next steps will be set out immediately afterwards. That will ensure that any changes to the law are informed by expert evidence. I take the point that there is a lot of evidence already available, but input is also needed to address the concerns of the Serious Fraud Office and the Crown Prosecution Service, and I am sure they will consider the important issues raised in this amendment.
I hope the noble Baroness appreciates the steps that the Ministry of Justice has taken on this issue. The MoJ will certainly be willing to meet any noble Lords that wish to do so. As such, I hope she feels content to withdraw the amendment.
Baroness Kidron (CB)
The Minister did not quite address my point that the consultation is not broad enough in scope, but I will accept the offer of a meeting. Although the noble Lord, Lord Arbuthnot, spoke very briefly, he is my partner in crime on this issue; indeed, he is a great campaigner for the postmasters and has done very much. So I say to the Minister: yes, I will have the meeting, but could it happen this time? With that, I beg leave to withdraw the amendment.
“Digitally created sexually explicit photographs or filmsIn the Sexual Offences Act 2003, after section 66D, insert—“66E Creating or soliciting a non-consensual digitally produced sexually explicit photograph or film(1) A person (A) commits an offence if—(a) A creates or solicits the creation of a digitally produced sexually explicit photograph or film of another person (B),(b) B does not consent to the creation or solicitation of the photograph or film, and(c) A does not reasonably believe that B consents.(2) Subsection (1) applies when the solicitation of the creation of digitally produced sexually explicit photograph or film has taken place in the United Kingdom, irrespective of the location of the person or persons who have been solicited for the creation of such a photograph or film.(3) A person (A) may commit an offence under this section whether or not creation occurs.(4) It is a defence for a person charged with an offence under subsection (1) to prove that the person had a reasonable excuse for creating, or soliciting the creation of, the photograph or film.(5) A person who commits an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both).(6) In relation to section 127(1) of the Magistrates’ Court Act 1980 (limitation of time) the date on which the “matter of complaint” arose will be taken as the date on which B becomes aware that an offence under this section may have been committed. (7) In this section, “soliciting” means encouraging or facilitating the creation of a digitally produced sexually explicit photograph or film.(8) In this section, “sexually explicit photograph or film” means a photograph or film, as defined in section 66A(3) to (5), which appears to be a photograph or film of anyone in an “intimate state” as defined in section 66D(5), (6) or (7).””
Baroness Owen of Alderley Edge (Con)
I thank the Minister and all noble Lords who spoke. The Minister stopped short of saying that he will bring forward an amendment at Third Reading. It is clearly the will of the House to address and debate this issue at Third Reading. I therefore give notice that in the absence of a government amendment I will be bringing back an amendment next week at Third Reading. I accept the noble Lord’s kind offer to continue to engage.
Viscount Camrose
“Data risks from systemic competitors and hostile actors(1) The Secretary of State, in consultation with the Information Commissioner, must conduct a risk assessment on the data privacy risks associated with genomics and DNA companies that are headquartered in countries the Government determines to be systemic competitors and hostile actors.(2) Within 12 months of the day on which this Act is passed, the Secretary of State must present a report on the risk assessment in subsection (1) to Parliament and consult the intelligence and security agencies on the findings, taking into account the need not to make public information critical to national defence or ongoing operations.(3) This risk assessment must evaluate—(a) the degree of access granted to foreign entities, particularly those linked to systemic competitors and hostile actors, to genomic and DNA data collected within the United Kingdom;(b) the potential for genomic and DNA data to be exfiltrated outside of the United Kingdom;(c) the potential misuse of United Kingdom genomic and DNA data for dual-use or nefarious purposes;(d) the potential for such data to be used in a manner that could compromise the privacy or security of United Kingdom citizens or undermine national security and strategic advantage.(4) The risk assessment must consider and include, but is not limited to—(a) an analysis of the data handling and storage practices of genomics companies that are based in countries designated as systemic competitors and hostile actors,(b) an independent audit, including digital and physical forensic examination, at any company site that could have access to United Kingdom genomics data, and(c) evidence of clear disclosure statements to consumers of products and services from genomics companies subject to data sharing requirements in the countries where they are headquartered. (5) This risk assessment must be conducted as frequently as deemed necessary by the Secretary of State or the Information Commissioner to address evolving threats and ensure continued protection of the genomics sector from entities controlled, directly or indirectly, by countries designated as systemic competitors and hostile actors.(6) The Secretary of State may issue directives or guidelines based on the findings of the risk assessment to ensure compliance by companies or personnel operating within the genomics sector in the United Kingdom, safeguarding against identified risks and vulnerabilities to data privacy.”Member's explanatory statement
This amendment seeks to ensure sufficient scrutiny of national security and data privacy risks related to advanced technology and areas of strategic interest for systemic competitors and hostile actors, inform the development of regulations or guidelines to mitigate those risks, and ensure security experts can scrutinise malign entities and guide researchers, consumers, businesses, and public bodies.
Viscount Camrose (Con)
My Lords, I move Amendment 73 standing in my name which would require the Secretary of State to undertake a risk assessment on the data privacy risks associated with genomics and DNA companies that are headquartered in countries which the Government determine to be systemic competitors and hostile actors. The UK is a world leader in genomics research, and this a growing sector that makes an important contribution. The opportunities in genomics are enormous and we should take the steps needed to protect the UK’s leading role here.
I was pleased to hear from the noble Baroness, Lady Jones of Whitchurch, in Committee that:
“the Government have continued the important work of the UK Biological Security Strategy of 2023, including by conducting a full risk assessment and providing updated guidance to reduce the risks from the misuse of sensitive data”.
The Minister also gave the undertaking that the Government would
“brief the Joint Committee on the National Security Strategy on the findings of the risk assessment in the new year”.—[Official Report, 18/12/24; col. GC 124.]
I would be very grateful if the Minister could confirm whether the Joint Committee has been briefed and, if not, when that will happen.
I look forward to continuing to engage with Ministers on the issue of data security in the face of growing threats from international competitors and hostile actors.
Lord Vallance of Balham (Lab)
I thank the noble Viscount, Lord Camrose, for giving me an opportunity to speak for 45 minutes on genomics, which I know everyone will be very grateful for. I shall resist that temptation and thank him for the amendment on security in genomic data.
As he is aware, the UK is a world leader in genomics, and its various datasets and studies have contributed to health globally. I also note that the UK Biological Security Strategy of 2023 has been endorsed by this Government and a variety of measures are under active consideration. I recognise the noble Viscount’s desire for quick movement on the issue and agree with him that this is of great importance. I reassure him that my officials are working at speed across government on this very issue. I would be very happy to brief him and other noble Lords present today on the findings of the risk assessment in due course. We have not yet engaged with the Joint Committee on National Security Strategy but will do shortly as per standard practice.
I hope that the noble Viscount will appreciate that this work is live and will grant a little patience on this issue. I look forward to engaging with him soon on this but, in the meantime, I would be grateful if he would withdraw his amendment.
Viscount Camrose (Con)
I thank the Minister for his clear response and for taking pity on the House and not giving us the full benefit of his knowledge of genomics. Meanwhile, I recognise that we have to move with deliberateness here and not rush into the wrong solution. I gratefully accept his offer of further briefings and beg leave to withdraw my amendment.
Lord Clement-Jones
“Retrospective applicationWithin one month of the day on which this Act is passed, the Secretary of State must publish a statement clarifying whether the changes enacted by its commencement will apply to controllers and processors retrospectively, or only to data first processed following its commencement.”
Lord Clement-Jones (LD)
My Lords, I have the very dubious privilege of moving the final amendment on Report to this Bill. This is a probing amendment and the question is: what does retrospectivity mean? The noble Lord, Lord Cameron of Lochiel, asked a question of the noble Baroness, Lady Jones, in Committee in December:
“Will the forthcoming changes to data protection law apply to such data that controllers and processors already hold?”
She replied that
“the new lawful ground of recognised legitimate interest will apply from the date of commencement and will not apply retrospectively”.—[Official Report, 10/12/24; cols. GC 435-437.]
But the question is not really whether the lawfulness is retrospective, but whether the changes made in the new law can be applied to any personal data previously collected and already held on the commencement date of the Act—so that is the exam question.
Viscount Camrose (Con)
It is indeed getting late. I thank the noble Lord, Lord Clement-Jones, for moving his amendment, and I really will be brief.
We do not oppose the government amendment in the name of the noble Lord, Lord Vallance. I think the Minister should be able to address the concerns raised by the noble Lord, Lord Clement-Jones, given that the noble Lord’s amendment merely seeks clarification on the retrospective application of the provisions of the Bill within a month of the coming into force of the Act. It seems that the Government could make this change unnecessary by clarifying the position today. I hope the Minister will be able to address this in his remarks.
Lord Vallance of Balham (Lab)
I will speak first to Amendment 76. I reassure noble Lords that the Government do not believe that this amendment has a material policy effect. Instead, it simply corrects the drafting of the Bill and ensures that an interpretation provision in Clause 66 commences on Royal Assent.
Amendment 74, in the name of the noble Lord, Lord Clement Jones, would require the Secretary of State to publish a statement setting out whether any provisions in the Bill apply to controllers and processers retrospectively. Generally, provisions in Bills apply from the date of commencement unless there are strong policy or legal reasons for applying them retrospectively. The provisions in this Bill follow that general rule. For instance, data controllers will only be able to rely on the new lawful ground of recognised legitimate interests introduced by Clause 70 in respect of new processing activities in relation to personal data that take place after the date of commencement.
I recognise that noble Lords might have questions as to whether any of the Bill’s clauses can apply to personal data that is already held. That is the natural intent in some areas and, where appropriate, commencement regulations will provide further clarity. The Government intend to publish their plans for commencement on GOV.UK in due course and the ICO will also be updating its regulatory guidance in several key areas to help organisations prepare. We recognise that there can be complex lifecycles around the use of personal data and we will aim to ensure that how and when any new provisions can be relied on is made clear as part of the implementation process.
I hope that explanation goes some way to reassuring the noble Lord and that he will agree to withdraw his amendment.
Lord Clement-Jones (LD)
My Lords, I thank the Minister. There is clearly no easy answer. I think we were part-expecting a rather binary answer, but clearly there is not one, so we look forward to the guidance.
But that is a bit worrying for those who have to tackle these issues. I am thinking of the data protection officers who are going to grapple with the Bill in its new form and I suspect that that is going to be quite a task. In the meantime, I withdraw the amendment.
Lord Vallance of Balham
“(za) section 66 (meaning of “the 2018 Act” and “the UK GDPR”);”Member’s explanatory statement
This amendment provides that the clause defining “the 2018 Act” and “the UK GDPR” for the purposes of Chapter 1 of Part 5 of the Bill comes into force on Royal Assent.