Monday 19th May 2025
(1 day, 19 hours ago)
Lords ChamberData (Use and Access) Bill [HL] 2024-26 View all Data (Use and Access) Bill [HL] 2024-26 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 102-I Marshalled list for Consideration of Commons Reasons - (16 May 2025)
17:00 - Division on Motion C1 (as an amendment to Motion C) - Ayes: 289 / Noes: 118 - Motion C1 agreed.
Baroness Jones of Whitchurch
That this House do not insist on its disagreement with the Commons in their Amendment 32, on which the Commons have insisted for their Reason 32D, and do not insist on its Amendments 32B and 32C proposed to the words restored to the Bill by the Lords disagreement, to which the Commons have disagreed for the same Reason.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, I will also speak to Motions B and D. This first group is concerned with amendments relating to sex and gender in digital verification services, the data dictionary and scientific research. In relation to digital verification services and the data dictionary, I am grateful to the noble Viscount, Lord Camrose, for his continued engagement on the issue of sex data. Although we are not dealing with amendments in lieu today, I will take this opportunity to address some misunderstandings that I fear sit behind the concerns of noble Lords which were raised in previous debates.
This Bill does not create one digital identity app or system that lists attributes such as gender that those wanting to verify information about someone are required to accept. Instead, it creates a legislative structure of standards, governance and oversight for digital verification services. It is possible to create a reusable digital identity. However, when an organisation chooses to use a DVS, it will enter into a contract with that provider; that contract will specify which attributes the organisation needs to verify and how the DVS will do it. Reusable digital identities can therefore be reused only when an organisation accepts in writing that they meet its needs. If a reusable digital identity verified gender, it could not be used to verify biological sex in cases where that was needed instead.
Where a public authority is using a DVS, it remains the case that a contract will have to be entered into. This will again set out what types of information the DVS will be able to make checks against and for what purpose. This will ensure it is explicitly clear what information is being verified when a DVS relies on public authority data released through the information gateway. I hope this reassures noble Lords that gender data could not and would not be used to verify biological sex. Similarly, individuals would not be able to reuse a digital ID verifying gender to verify biological sex.
It is for these reasons that I have laid the Motions to agree with the elected House, which removed Lords Amendments 32B, 32C, 52B and 52C. I am grateful to the Opposition for accepting the assurances offered and not tabling a Motion to insist on the previous amendments.
In response to last week’s debate, I would like to respond to concerns raised by a few noble Lords around public data when sex and gender data appear in the same field. Existing legislation already requires those processing personal data to ensure that the data they process is accurate for the purpose for which it is being used. This means that personal data processed as part of a digital verification check must be appropriate for the specific requirements of that check.
The contracts I have mentioned are a way to ensure compliance with this principle. Any personal data passed through the information gateway to DVS providers is a new instance of data processing, and therefore the data accuracy principle is reapplied. That principle requires that the personal data must not be misleading, which is of particular relevance given that public authorities will be sharing data for verification purposes. As Minister Bryant set out in the other place, if the Government identify an instance where a public authority is sharing gender data in a way that is misleading as to the fact that it cannot be used to verify biological sex, they will of course respond appropriately. In light of these reassurances and noting the clearly expressed view of the other place on these issues, I hope noble Lords will agree with Motion A.
On scientific research and Amendment 43B, I am grateful to the noble Viscount, Lord Colville, for the time he has afforded the Government on this issue and for our productive meeting last week. I hope to reassure him and other noble Lords that there are, as we have argued throughout, sufficient protections against the potential misuse of the term “scientific research”. It is not the effect of the provisions to provide blanket approval of the reuse of personal data for AI training under the banner of scientific research.
The policy intention behind the clauses is not to enable the reuse of personal data for AI training unless it is for genuine scientific research, which is set out in the criteria in the ICO guidance. As part of its Bill implementation work, the ICO will prepare revised guidance around processing for research purposes. I expect this will cover information on compliance for data protection principles, including the fairness and purpose limitation principles. This will include the reasonable expectations of data subjects for AI model training when it constitutes genuine scientific research.
As with the previous topic, I have tabled Motion B to agree with the Commons on this issue. I am grateful to the noble Viscount for not tabling an amendment in lieu. On this basis, I hope noble Lords will also agree with Motion B and secure the continued success of the UK’s scientific research sector. I beg to move.
Lord Clement-Jones (LD)
My Lords, I too thank the Minister for her introduction to the three Motions in this group.
On these Benches, we welcome the Supreme Court’s judgment on the meaning of “sex” in the Equality Act 2010. However, as Ministers have stressed—and we agree—it is paramount that we work through the implications of this judgment carefully and sensitively. As we have previously discussed, the EHRC is currently updating its statutory guidance.
Ministers have previously given assurances that they are engaged in appropriate and balanced work on data standards and data accuracy, and we accept those assurances. They have given a further assurance today about how the digital verification services framework will operate. We rely on those ministerial assurances. In summary, we believe that the previously proposed amendments were premature in the light of the EHRC guidance and that they risk undermining existing data standards work. On that basis, we support the Minister in her Motions A and D.
Turning to Motion B, the noble Viscount, Lord Colville, will not press his Amendment 43B at this stage, as he intends to accept the assurances given by Ministers. We have consistently supported the noble Viscount’s efforts to ensure that scientific research benefiting from the Bill’s provisions for data reuse is conducted according to appropriate ethical, legal and professional frameworks. The Government have given significant assurances in this area. We understand that their position is that the Bill does not alter the existing legal definition or threshold for what constitutes scientific research under UK GDPR. The Bill does not grant any new or expanded permissions for the reuse of data for scientific research purposes, and, specifically, it does not provide blanket approval for using personal data for training AI models under the guise of scientific research. The use of personal data for scientific research remains subject to the comprehensive safeguards of UK GDPR, including the requirement for a lawful basis, the adherence to data protection principles and the application of the reasonableness test, which requires an objective assessment.
The collection of assurances given during several stages of the Bill provides reassurance against the risk that commercial activities, such as training AI models purely for private gain, could improperly benefit from exemptions intended for genuine scientific research serving the public good. I very much hope that the Minister can reaffirm these specific points and repeat those assurances.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank noble Lords for their contributions. I reassure your Lordships’ House that the Government are progressing workstreams focused on the accuracy and reliability of sex data in public authority datasets in a holistic and measured manner, as I have described in previous debates. We welcome the Supreme Court ruling, and are now working hard to consider those findings and the upcoming guidance from the equalities regulator, which will help.
I reiterate that the trust framework requires DVS providers to comply with data protection legislation, including the data accuracy principle, where they use and share personal data. That includes the creation of reusable digital identities, as well as one-off checks. If they fail to comply with these requirements, they could lose their certification. This means that the sex information listed on a passport—which, as we all know, could be a combination of biological sex, legal sex under the Gender Recognition Act and gender identity—cannot be used to verify biological sex.
The noble Lord, Lord Arbuthnot, asked whether a person can have different genders appearing on different documents. Yes, you could have both genders appearing on different documents, but they could not be used to prove biological sex.
I should say to noble Lords that there is a requirement for all this information to be recreated, reused and rechecked each time. In response to noble Lords who asked about historic data, the data will be renewed and checked under the new information that is now available.
In the majority of cases where DVS are used, there will not be a need to verify biological sex, as we have noted before, because many DVS requirements do not ask that question. Data sharing under the power created in Clause 45 will involve new processing of data, which must be in compliance with the data accuracy principle: that is, it must be accurate for the purpose for which the information will be used. Of particular relevance, given that public authorities will be sharing data for verification purposes, is the fact that data accuracy principles require that the personal data must not be misleading.
With regard to the question from the noble Baroness, Lady Ludford, about supplementary codes of practice, I can confirm that the trust framework already includes requirements on data accuracy for DVS providers. That framework will, of course, be updated from time to time.
On scientific research, let me repeat my thanks to the noble Viscount, Lord Colville, for his contribution on this issue. I am glad that he was reassured by my remarks that we have been able to come to an agreeable resolution. I very much concur with the comments of the noble Lord Clement-Jones, that there has to be an ethical basis to those standards, and that point is absolutely well made.
On that basis, I hope I have reassured noble Lords. I commend the Motion to the House.
Lord Winston (Lab)
My Lords, I wonder, with regard to sexuality, whether the Minister has considered those children who are, unfortunately, born with perhaps an ovary and a testis, or with genitalia which are difficult to identify. How do those become categorised under this regulation?
The second thing is that the definition of science proposed in the Bill is not science; it is technology, and there is a big difference, as I explained in the last speech. Science involves knowledge, and we do not know that knowledge until we have the knowledge. We cannot act on that knowledge until we know what the knowledge is. That is hugely important and, as the noble Lord, Lord Vallance, who is not now in his place, said, this has the risk of holding up research which is really necessary.
Before I close, I mention just one example of this to the noble Lord, Lord Clement-Jones. He made a rather derogatory point about my comment on infection. I did not point out to him that, when I was seven, my father came home with a mild bronchial infection, which went on to be pneumonia. After six months with various inadequate antibiotics—because they did not understand the dosage—penicillin did not work and he died of a brain abscess when I was just eight. That is an example of where research is needed continuously, even when we do not know what we are doing. It is very important to understand that. This Bill and its wording do not fully define science satisfactorily, certainly to scientists.
Baroness Jones of Whitchurch (Lab)
My Lords, the first thing I would say about categorisation, as I hope I have stressed all along, is that data verification services will be required to provide accurate information. Normally, biological sex is not one of the things that most people need for their identity most of the time, but there are provisions under DVS for categorising to take account of those variations. I talked about biological sex, legal sex under the Gender Recognition Act and gender identity, for example. I hope that my noble friend has taken on board that point.
We have a fantastic scientific research community in this country, and it is our intention that it will thrive and grow. We absolutely intend to provide the proper underpinning of that, so that the scientific community does not feel that it is being undermined. I can reassure my noble friend that the provision in this Bill does not undermine the scientific research community, and it can remain confident that it will be protected going forward.
Baroness Jones of Whitchurch
That this House do not insist on its Amendment 43B, to which the Commons have disagreed for their Reason 43C.
Baroness Jones of Whitchurch
That this House do not insist on its Amendment 49B, to which the Commons have disagreed for their Reason 49C.
Baroness Jones of Whitchurch (Lab)
My Lords, I will also speak to Motion C1.
I am conscious of the words of my noble friend the Chief Whip at the start of our proceedings, so I will try not to add unnecessarily to our ongoing discussion on the issue of AI and copyright. As both Minister Bryant and the Secretary of State have said, we share the ambition of your Lordships’ House to foster vibrant, sustainable and secure creative industries in the UK. We all want to get our response to this complicated issue right.
The noble Baroness, Lady Kidron, has twice introduced measures into this Bill that would commit the Government to prematurely implementing transparency obligations on AI developers, without consideration of the broader supporting measures that are required, nor how measures would work in practice. Twice the elected House has removed these measures, with the Government and elected Members sending a clear message that although we will take action in this area, this Bill is not the right vehicle to tackle this important problem.
Today we are debating a third iteration of the noble Baroness’s amendment. Although I am glad that the noble Baroness now agrees that the Government’s reports are the right mechanism to come to a clear view on transparency, this amendment does not consider the relevant issues together as a complete package.
I will not repeat Minister Bryant’s extensive remarks in full, but it remains the Government’s view that transparency cannot be considered in isolation. Regardless of whether an amendment says “must” or “may” in relation to enforcement, it remains the case that careful thought must be given to how transparency obligations would be enforced and by whom.
Alongside transparency, we must also consider licensing, the remuneration of rights holders, the role of technical solutions, and any other number of issues relating to copyright and AI. This is why we consulted on all these topics.
We must also keep in mind that any solution adopted by the UK must reflect the global nature of copyright, the creative sector and AI development. We cannot ring-fence the UK away from the rest of the world. This is why the reports and impact assessment that the Government have committed to publishing in their own amendments to this Bill will give proper consideration to the full range of issues in light of all available evidence.
I share the view expressed by noble Lords and Minister Bryant that this is an urgent issue which needs to be addressed. But jumping straight from reporting on four things to regulating one thing is clearly not the right approach. Piecemeal regulation such as this is not the way to prioritise the protection of 2.4 million creatives. The fact remains that we must develop this policy properly, using the evidence we are gathering from each of the 11,500 consultation responses.
We must devise a way forward that addresses these issues coherently and which works for all sectors involved. I look forward to making progress on that soon. We will bring our reports forward as quickly as we are able to, but this is too important a topic to rush. A real example of acting quickly is, as Minister Bryant announced in the other place, convening technical working groups as soon as the Bill is passed. We will get the best minds from the creative industries and the AI sector together to help us to pin down solutions that will work.
Our working groups will look in detail at how measures on transparency can be delivered and technical standards promoted and disseminated to support approaches such as watermarking, which is a focus of the noble Viscount, Lord Camrose. We are ready and enthusiastic to get on with those discussions and to get workable solutions in place. Our creative industries will be best served by this approach, rather than a process that deals with only one, albeit very important, strand of a complex issue.
I understand the desire of the noble Baroness, Lady Kidron, for these issues to be properly addressed. I accept the wish expressed by this House to send a signal to the creative industries that they are cherished and supported. We share that sentiment, and we will, through the process outlined, legislate properly on the basis of evidence and workability. There will be many opportunities for the House to be updated throughout that process.
Noting the clearly expressed view of the other place and our commitment to bring forward our proposals as quickly as we can, I urge the noble Baroness, Lady Kidron, not to push Motion C1 at the end of this debate. I beg to move Motion C.
Motion C1 (as an amendment to Motion C)
Viscount Camrose (Con)
My Lords, it is probably redundant to pay tribute to the noble Baroness, Lady Kidron, for her tenacity and determination to get to a workable solution on this, because it speaks for itself. It has been equally compelling to hear such strong arguments from all sides of the House and all Benches—including the Government Benches—that we need to find a solution to this complex but critical issue.
Noble Lords will recall that, on these Benches, we have consistently argued for a pragmatic, technology-based solution to this complex problem, having made the case for digital watermarking both in Committee and on Report. When we considered the Commons amendments last week, we worked closely with the noble Baroness, Lady Kidron, to find a wording for her amendment which we could support, and were pleased to be able to do so and to vote with her.
It is important that the Government listen and take action to protect the rights of creatives in the UK. We will not stop making the case for our flourishing and important creative sector. We have put that case to Ministers, both in your Lordships’ House and at meetings throughout the passage of the Bill. As a responsible Opposition, though, it is our view that we must be careful about our approach to amendments made by the elected House. We have, I hope, made a clear case to the Government here in your Lordships’ House and the Government have, I deeply regret to say, intransigently refused to act. I am afraid that they will regret their failure to take this opportunity to protect our creative industries. Sadly, there comes a point where we have to accept that His Majesty’s Government must be carried on and the Government will get their Bill.
Before concluding, I make two final pleas to the Minister. First, as others have asked, can she listen with great care to the many artists, musicians, news organisations, publishers and performers who have called on the Government to help them more to protect their intellectual property?
Secondly, can she find ways to create regulatory clarity faster? The process that the Government envisage to resolve this issue is long—too long. Actors on all sides of the debate will be challenged by such a long period of uncertainty. I understand that the Minister is working at pace to find a solution, but not necessarily with agility. I echo the brilliant point made by my noble friend Lady Harding that agility and delivering parts of the solution are so important to pick up the pace of this, because perfect is the enemy of good in this instance. When she gets up to speak, I hope that the Minister will tell us more about the timeline that she envisages, particularly for the collaboration of DSIT and DCMS.
This is a serious problem. It continues to grow and is not going away. Ministers must grip it with urgency and agility.
Baroness Jones of Whitchurch (Lab)
My Lords, once again, I acknowledge the passion and depth of feeling from those noble Lords who have spoken and, again, I emphasise that we are all on the same side here. We all want to see a way forward that protects our creative industries, while supporting everyone in the UK to develop and benefit from AI.
Of course, we have listened, and are continuing to listen, to the views that have been expressed. We are still going through the 11,500 responses to our consultation, and I have to tell noble Lords that people have proposed some incredibly creative solutions to this debate which also have a right to be heard.
This is not about Silicon Valley; it is about finding a solution for the UK creative and AI tech sectors that protects both. I am pleased that the noble Baroness, Lady Kidron, now endorses the Government’s reports as the right way to identify the right solutions; however, I will address some of her other points directly.
First, she talked about her amendment providing certainty to the creative industries. I can provide that certainty now, as Minister Bryant did in the other place last week. Copyright law in the UK is unchanged by this Bill. Works are protected unless one of the exemptions, which have existed for some time, such as those for teaching and research, applies, or the rights holders have guaranteed permission for their work to be used. That is the law now and it will be the law tomorrow.
I also want to reassure my noble friend Lord Cashman and the noble Baroness, Lady Benjamin, who talked about us stripping away rights today. I want to be clear that the Government have proposed no legislation on this issue; the Bill does no such thing. The amendment from the noble Baroness, Lady Kidron, would provide no certainty other than that of more uncertainty—of continuous regulations, stacked one upon another in a pile of instruments. This cannot be what anyone desires, and it is why the Government do not agree to it.
The noble Baronesses, Lady Kidron and Lady Harding, suggested that her amendment, requiring regulations on only one issue ahead of all others and via a different process, would somehow leave Parliament free to consider all the other issues independently. I am afraid that this is not the case; this is a policy decision with many moving parts. Jumping the gun on one issue will hamstring us in reaching the best outcome on all the others, especially because, as I said earlier, this is a global issue, and we cannot ring-fence the UK from the rest of the world.
We refute the suggestion that we are being complacent on this. I say to my noble friend Lord Brennan that I of course agree that the UK should be a global leader, but we need to make sure that we have the right approach before we plant our flag on that. There is a reason that no other territory has cracked this either. The EU, for example, is still struggling to find a workable solution. It is not easy, but we are working quickly.
The noble Baroness once again raised enforcement, and she has left the mechanism to the discretion of the Government in her new amendment. While we are pleased that the noble Baroness has changed her approach on enforcement in light of the Commons reasons, we all agree that for new transparency requirements to work, enforcement mechanisms will be needed and must be effective.
The noble Baroness said she has tried everything to persuade the Government, and I would have welcomed a further meeting with her to discuss this and other aspects of her revised proposals. Unfortunately, however, that invitation was not accepted. To reiterate, in spite of all our different positions on this Bill, we are all working towards the same goal.
Following proper consideration of consultation responses and publication of our technical reports, we will bring forward comprehensive and workable proposals that will give certainty to all sides. If the House has strong views when the proposals come forward, there will of course be the opportunity for us to debate them. We have made it clear that our reports will be delivered within 12 months and earlier if we can. I remind noble Lords that the amendments in the name of the noble Baroness, Lady Kidron, will not take effect for 18 months. There is not an instant solution, as many noble Lords want to hear today. Neither the noble Baroness’s nor our amendment is an instant solution; it will take time, and we have to recognise that.
We do not believe, in the meantime, that protracted ping-pong on this one remaining issue in the Bill is in anyone’s interest. The elected House has spoken twice and through legislative and non-legislative commitments, the Government have shown they are committed to regulating quickly and effectively. Therefore, I hope the noble Baroness and your Lordships’ House will accept these assurances and continue working with the Government to make progress on this important issue.
A lot has been said in this debate about the importance of transparency. To my noble friend Lord Brennan, I say that the Government have said from the very beginning that we will prioritise the issue of transparency in all the work we do. Transparency is essential to licensing; licensing is essential to the question of remuneration; and remuneration is essential to AI being high quality, effective and able to be deployed in the UK. These are the challenges we are facing, but all these things have to be addressed in the round and together, not in a piecemeal fashion. However, noble Lords are absolutely right to say that, without transparency, it is, of course, worth nothing.
On enforcement, the Government are sympathetic to the argument that it is a different matter for individuals to enforce their rights via the courts as opposed to large creative agencies. This is the kind of the thing that the working groups I have mentioned will explore. As Minister Bryant said last week, we want to make the new regime effective for everybody, large and small.
I will finish with some things I am sure we can all agree on: the urgency of the problem; the need to be evidence-based; that solutions will require collaboration between the creative and the AI sectors; and the solutions must work for everyone. I assure the noble Baroness, Lady Kidron, that everybody will have a seat at the table in the discussions. I hope noble Lords will agree with me and truly support the innovators and creators in the UK by voting with the Government on this Motion, which will deliver a full, comprehensive package that will make a difference to the creative sector for years to come in this country.
Baroness Kidron (CB)
My Lords, I thank everybody who has spoken on this issue in the House and outside of the House. I particularly thank the Members on the Government Benches; I know it comes hard to disagree with your party, and I really appreciate it, as do all those outside the House.
I am going to try to take the high road from the Minister’s passionate defence. If the Government had spent as much time talking to me as they did to their own Back Bench to say, “Please do not rebel”, we would be in a different place. I did say that I was not able to be there at a particular time, but there were quite a lot of other occasions on which other Ministers, including the Secretary of State, knew where I was.
To go to the crux of the matter, the noble Baroness the Minister said at the Dispatch Box that this is UK law and the Government have done nothing to change it. This is precisely the problem: it is UK law, but it is unenforceable because what you cannot see you cannot enforce—period. That is the problem we are trying to solve, and it is a separate and different problem from the enormity of all the other issues she rightly raises. While I accepted the report as the mechanism and the idea that the Government could have their enforcement procedure in their own timeline, nothing that any Minister has said in either the other place or your Lordships’ House has put a timeline on it. It will take years and, by that time, there will be no creative industry left, or it will be in tatters.
I was interested in the contribution that said that AI companies have transparency and renumeration; that is the fundamental principle. I will not detain the House any longer. I am so grateful for everybody’s contributions to all our debates. This was a Lords starter; this does not challenge the primacy of the Commons. I would like to test the opinion of the House.
Baroness Jones of Whitchurch
That this House do not insist on its disagreement with the Commons in their Amendment 52, on which the Commons have insisted for their Reason 52D, and do not insist on its Amendments 52B and 52C proposed to the words restored to the Bill by the Lords disagreement, to which the Commons have disagreed for the same Reason.