Digital Markets, Competition and Consumers Bill

Baroness Jones of Whitchurch Excerpts

Consideration of Commons amendments
Tuesday 14th May 2024 Lords Chamber

does not eliminate the concern about the two bleeding into each other, especially if the two streams take place together in the same case. All this means that we should revert to the judicial review standard for penalty appeals as well.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am pleased to support the Motions in the names of the noble Lords, Lord Faulks and Lord Clement-Jones. My Motion C2, which proposes Amendments 32B and 32C in lieu, is in this group.

Throughout the course of the Bill, we have been grateful to the Ministers for their engagement and willingness to reconsider its provisions. We are pleased with a number of concessions which have considerably strengthened the consumer protections within it.

However, the issues at the core of the Bill, which are the ones we are dealing with in this group, remain unresolved. This is the Bill that was meant to even out the balance of interests between the big tech companies and the challenger firms. We heard numerous examples of why this was necessary, why challenger firms were being squeezed out of the market and why the CMA needed to have new powers to create a fair and balanced regime. We originally had a Bill that did just that. This was before the big tech companies intervened and objected to the Government’s proposals. The new version we have in front of us now weighs the scales very much in their interests again.

In the Commons, Minister Kevin Hollinrake claimed that the Government had engaged significantly with both large tech companies and the challenger firms on these changes and that,

“all those cohorts are happy with where the Bill is today”.—[Official Report, Commons, 30/4/24; col. 178.]

I have to tell the noble Viscount the Minister that this simply is not the case. Many firms remain unhappy with the changes introduced to the original Bill and that they have not been matched by the necessary assurances on the practical and legal consequences that will follow, so our objective all along in framing our amendments was to make the Bill legally watertight, to take out ambiguity and to give the CMA the best chance of assessing and moderating the conduct of the tech companies deemed to have strategic market status.

We have been keen to use the wording that is already legally recognised and does not increase the scope for the lengthy, costly and often strategic legal cases which we sometimes see in this field, challenges which could be used delay or undermine the CMA’s attempts to level the playing field. Clarity has to be of the essence. We and the noble Lord, Lord Faulks, have amendments to Motion C, and he has eloquently raised the legal concerns which continue to concern us as well.

Our Amendments 32B and 32C address an area of ambiguity that may give lawyers an open door to revisit CMA decisions to impose a penalty when conduct requirements have been breached. This concern was also raised in the Commons debate. For example, Conservative MP John Penrose described the possible impact of the government changes, such that

“clever lawyers working for big tech firms may effectively be able to broaden the scope through clever use of legal techniques to prolong their attempts to walk backwards slowly and prevent justice from being done”.—[Official Report, Commons, 30/4/24; col. 188.]

I could not have put it any better myself. To address this concern, our amendment makes it clear that appeals on penalties in such cases cannot revisit the original decision, whether to impose conduct requirements or that such requirements have not been complied with. Rather than leaving it to ministerial assurances or non-binding additions to the Explanatory Notes, our amendments would make it absolutely clear that merits appeals on penalties are on only the amounts and other points of detail and not the CMA’s decision to act, something that colleagues have referred to as “bleed back” at previous stages. This amendment represents a compromise. We would have preferred a switch back to the use of judicial review on all aspects of appeals, as preferred by the CMA, but in the absence of such a concession I hope noble Lords will see the value of our proposals.

We are not convinced by the assurances offered in the Commons by Minister Hollinrake that the courts will understand how the rules should be applied; the noble Viscount the Minister repeated this today. As the noble Lord, Lord Faulks, ably demonstrated, there are conflicting legal views on this and few precedents on which we can rely. There is also a remaining concern that where a number of issues are dealt with by the CMA concurrently, the evidence may overlap, which would impact on a merits decision on appeals. Our amendments address these concerns. I hope the Minister sees the sense in our proposal. It merely reflects what the Government say they want to achieve, but which they are refusing to put in legislation. Challenger firms and other interested parties cannot grow and compete with warm words alone, so I give notice that I am minded to test the opinion of the House on this important issue.

The noble Lord, Lord Faulks, also made a compelling case on his Motion Al with regard to proportionality. We have debated this issue before; I do not need to repeat the arguments. We continue to believe that the original wording that the CMA’s conduct in regulating digital markets should be “appropriate” rather than “proportionate” sets the right standard. I hope the Minister will be able to confirm that the Explanatory Notes will be amended to make it clear that the use of “proportionate” is not intended to set a heightened standard for appeals grounds.

--- Later in debate ---

Motion C2 (as an amendment to Motion C)

[Baroness Jones of Whitchurch]

Moved by

At end insert “, and do propose Amendments 32B and 32C in lieu—

32B: Clause 89, page 55, line 20, at end insert— “(1A) Appeals (or parts of appeals) to a penalty imposed under section 85 (penalties for failure to comply with competition requirements) through the application of section 114 of the EA 2002 do not apply to— (a) the CMA’s original decision to impose the requirements as set out in section 85(2), or (b) the original finding that an undertaking has failed to comply with a conduct requirement as set out in section 85(3). (1B) Appeals (or parts of appeals) relating to the decisions listed in subsection (1A) must be determined in accordance with the requirement in section 103(4).”

32C: Clause 103, page 62, line 4, after “89(1)” insert “to (1B)””

[Baroness Jones of Whitchurch (Lab)]

My Lords, the Minister said more or less that he agreed with our position but did not see the need for the amendments to be on the face of the Bill. The argument he gave was that the courts would have no difficulty in distinguishing the penalties from the earlier elements of the case—but, as we have already heard this afternoon, some of those legal disputes are just beginning. It is not as clear-cut as we would like, legally, and therefore we do feel the need for that clarification to be in the Bill. I therefore wish to test the opinion of the House on Motion C2.

AI: Intellectual Property Rights

Baroness Jones of Whitchurch Excerpts

Thursday 9th May 2024 Lords Chamber

[Viscount Camrose (Con)]

I thank my noble friend and her committee for that important letter. First, we must not underestimate the difficulty and complexity of the issues involved in resolving this question; there are very problematic jurisdictional and technical issues. That said, the Government greatly welcome any arrangement between private sector organisations finding a way forward on this; we can all learn a great deal from the success of those arrangements. We believe that a collaborative way forward on both sides, in partnership, will be a very important part of the eventual solution.

[Baroness Jones of Whitchurch (Lab)]

My Lords, the Minister was right to say that we should recognise that AI can bring opportunities to the creative sector. For example, nearly a decade after a near-fatal stroke, the musician Randy Travis has released a new song featuring AI-generated vocals. This has been done with his consent and the involvement of his record label, but elsewhere, as we have heard, AI tools are being widely used to create music in the style of established artists, despite no permission having been given and a total lack of creative control on the part of those artists and their representatives. Can the Minister outline how the Government are actively involving musicians, artists and writers in determining how best to protect that very precious intellectual property, while allowing creativity to flourish? I echo the noble Baroness’s theme: this is an urgent matter and we would like to hear how the Government will address it.

[Viscount Camrose (Con)]

The issue raised by the noble Baroness is of deep concern to everybody. As I say, there are some very serious problems, not least regarding the jurisdiction where any alleged infringement may or may not have taken place. Of course, any jurisdiction that implements rules one way or the other will find that the AI work she sets out so compellingly is simply offshored elsewhere. The Government engage very closely with creative groups, including fair remuneration groups for musicians and many others, and will continue to do so, looking for a solution to this difficult problem.

Deepfakes: General Election

Baroness Jones of Whitchurch Excerpts

Wednesday 8th May 2024 Lords Chamber

Asked by

[Baroness Jones of Whitchurch]

To ask His Majesty’s Government what steps they are taking to ensure political deepfakes on social media are not used to undermine the outcome of the general election.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

My Lords, we are working to ensure we are ready to respond to the full range of threats to our democratic processes, including through the Defending Democracy Taskforce. It is already an election offence to make false statements of fact about the personal character or conduct of a candidate before or during an election. Additionally, under the Online Safety Act, where illegal political deepfakes are shared on social media, they must be removed.

[Baroness Jones of Whitchurch (Lab)]

My Lords, Google’s Kent Walker has talked of the “very serious” threat posed by AI-generated deepfakes and disinformation. The Prime Minister, the Leader of the Opposition and the Mayor of London have all been the subject of deepfakes, so it is not surprising that the Home Secretary has identified a critical window for collective action to preserve the integrity of the forthcoming election. Obviously, monitoring online content is important, but that will not prevent malign individuals or hostile foreign states trying to interfere in the forthcoming elections at home and abroad. Will the Minister finally take up our proposals to use the Data Protection Bill to fill the deepfake gap left by the Online Safety Act so that we can all have confidence in the outcome of the general election?

[Viscount Camrose (Con)]

I start by saying that I very much share the view of the importance of protecting the forthcoming general election—and indeed every election—from online deepfakes, whether generated by AI or any other means. I think it is worth reminding the House that a range of existing criminal offences, such as the foreign interference offence, the false communications offence and offences under the Representation of the People Act, already address the use of deepfakes to malignly influence elections. While these Acts will go some way to deterring, I also think it is important to remind the House of the crucial non-legislative measures that we can take, continue to take and will take up to the completion of the election.

Universities: Sensitive Research

Baroness Jones of Whitchurch Excerpts

Tuesday 30th April 2024 Lords Chamber

[Viscount Camrose (Con)]

I certainly recognise the concern that overseas undergraduates tend to come very largely from a small number of countries, and the value of diversifying from that. I am afraid I am not familiar with the case the noble Lord mentions. I am very happy to write to him about it. It sounds extremely concerning.

[Baroness Jones of Whitchurch (Lab)]

My Lords, upholding national security is the first duty of any Government. To that end, we welcome the Government’s recent briefing for vice-chancellors and the intention to consult on how better to protect UK research from academic espionage. Given the importance of and the likely increase in these threats, does the Minister think it would be reasonable for the Deputy Prime Minister and the Secretary of State to offer similar briefings to their shadow counterparts?

[Viscount Camrose (Con)]

I would be very happy to raise that with them and ask them to do so. I take the noble Baroness’s point. There is nothing more important for us to do than look after our security, and research security is a very serious component of that.

Data Protection and Digital Information Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Wednesday 24th April 2024 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, has not that demonstrated the disproportionality of these measures?

[Baroness Jones of Whitchurch (Lab)]

The noble Viscount explained in response to the noble Lord, Lord Anderson, that at every stage where the powers are going to be expanded, it would come back as an affirmative regulation. I might have been a bit slow about this, but I have been having a look and I cannot see where it says that. Perhaps he could point that out to me, because that would provide some reassurance that each stage of this is coming back to us.

[Viscount Younger of Leckie (Con)]

I understand, very quickly, that it is in paragraph 1(1), but again, in the interests of time, maybe we could talk about that outside the Room.

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

239: Clause 133, page 169, line 10, at end insert—
“(2A) After section 25, insert—“25A Review of form in which registers are to be kept(1) The Secretary of State must commission a review of the provisions of this Act and of related legislation, with a view to the creation of a single digital register of births and deaths.(2) The review must consider and make recommendations on the effect of the creation of a single digital register on—(a) fraud,(b) data collection, and(c) ease of registration.(3) The Secretary of State must lay the conclusions of their review before Parliament within six months of this section coming into force.””Member’s explanatory statement
This amendment would insert a new section into the Births and Deaths Registration Act 1953 requiring a review of relevant legislation, with consideration of creating a single digital register for registered births and registered deaths and recommendations on the effects of such a change on reducing fraud, improving data collection and streamlining digital registration.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I rise to move Amendment 239 and to speak to Amendment 250 in my name. I am grateful to the right reverend Prelate the Bishop of London and the noble Lord, Lord Clement-Jones, for their support for Amendment 250.

These amendments tackle the sensitive but vital process of registering births and deaths. We are pleased that, in Clauses 133 to 137, the Government have set about modernising the Births and Deaths Registration Act 1953. The legislation created a huge paper trail of registrations, with local registrars being required to hold paper copies of every live birth, stillbirth and death, as well as providing certified paper copies of the register entries. Since 2009, registrars have also recorded this information electronically, so there is a huge duplication of effort. The clauses now proposed allow registrars to decide the best form in which to record this information, with an expectation that we will largely move to an online database.

These proposals make sense and will be widely welcomed. They make the functioning of the registrar more efficient. More importantly, they will make it easier for families, particularly those that have been bereaved, to inform authorities at what is often a difficult and distressing time. However, we believe that the Bill could go even further to simplify the process, tackle fraud and support bereaved families.

Our Amendment 239 would move away from individual registrars deciding how to record the information and would instead take the first steps to creating a single digital register of births and deaths. Our proposal is that the Secretary of State should commission a review to consider the viability of such a proposal and its potential impact on tackling fraud, the protection of personal data and whether such a scheme would simplify registration procedures on a national level. It would require the conclusions of the review to be laid before Parliament within six months of the section coming into law.

We believe that this standardisation would make it easier for law enforcement agencies to check whether identities are being stolen and whether patterns of identity theft are emerging. It would also enable regulators to set national standards as to how this information should be protected and accessed by, for example, those with commercial interests. It should also make it easier for individuals living in one part of the country to register a death in another part of the country. I hope that the Minister sees the sense of these modest proposals.

Amendment 250 addresses the further potential for the Tell Us Once service. This has been a welcome initiative, which enables bereaved families to inform a large number of government and public sector bodies that a death has occurred without repeating the details over and over again. This considerably reduces the administrative burden at a time of distress and complexity while dealing with the consequences of a bereavement. However, private organisations are not included and loved ones are still tasked with contacting organisations such as employers, banks, energy and telephone companies and so on. Inevitably, the response from these organisations is variable and can be unwittingly insensitive.

A number of charities, including Marie Curie, came together to establish the UK Commission on Bereavement, which was chaired by the right reverend Prelate the Bishop of London. Its 2022 report found that 61% of adult respondents had experienced practical challenges when notifying an organisation of the death of a loved one. The report made a number of recommendations, with the extension of Tell Us Once being a key issue raised. The report recommended a review of the scheme.

We believe that the time has come to roll out the benefits of the Tell Us Once scheme more widely, so we propose a review of the effectiveness of the current legislation, including any gaps in its provision. Recommendations should then be drawn up to assess whether the scheme could be expanded to include non-public sector, voluntary and private sector holders of personal data. Our proposal is that the Secretary of State should lay a report before Parliament within six months.

This is a common-sense set of proposals, which could bring positive benefits to bereaved families, making best use of digital services to ease the distress and pain of trying to manage a complex web of administrative tasks. I hope that noble Lords and the Minister will see the sense of these proposals and agree to take them forward. I beg to move.

--- Later in debate ---

[Lord Harlech (Con)]

My Lords, I declare an interest as someone who has been through the paper death registration process and grant of probate, which has something to do with why I am in your Lordships’ House, so I absolutely understand where the noble Baroness, Lady Jones of Whitchurch, is coming from. I thank her for tabling these amendments to Clauses 133 and 142. They would require the Secretary of State to commission a review with a view to creating a single digital register for the registration of births and deaths and to conduct a review of the Government’s Tell Us Once scheme.

Clause 133 reforms how births and deaths are registered in England and Wales by enabling a move from a paper-based system of birth and death registration to registration in a single electronic register. An electronic register is already in use alongside the paper registers and has been since 2009. Well-established safety and security measures and processes are already in place with regard to the electronic infrastructure, which have proven extremely secure in practice. I assure noble Lords that an impact assessment has been completed to consider all the impacts relating to the move to an electronic register, although it should be noted that marriages and civil partnerships are already registered electronically.

The strategic direction is to progressively reduce the reliance on paper and the amount of paper in use, as it is insecure and capable of being tampered with or forged. The creation of a single electronic register will remove the risk of registrars having to transmit loose-leaf register pages back to the register office when they are registering births and deaths at service points across the district. It will also minimise the risk of open paper registers being stolen from register offices.

The Covid-19 pandemic had unprecedented impacts on the delivery of registration services across England and Wales, and it highlighted the need to offer more choice in how births and deaths are registered in the future. The provisions in the Bill will allow for more flexibility in how births and deaths are registered—for example, registering deaths by telephone, as was the case during the pandemic. Over 1 million deaths were successfully registered under provisions in the Coronavirus Act 2020. This service was well received by the public, registrars and funeral services.

Measures will be put in place to ensure that the identity of an informant is established in line with Cabinet Office good practice guidance. This will ensure that information provided by informants can be verified or validated for the purposes of registering by telephone. For example, a medical certificate of cause of death issued by a registered medical practitioner would need to have been received by the registrar before an informant could register a death by telephone. Having to conduct a review, as was proposed by the noble Baroness, Lady Jones, would delay moving to digital ways of working and the benefits this would introduce.

[Baroness Jones of Whitchurch (Lab)]

Can I just be clear? The noble Lord was quite rightly saying that there is going to be a move to digital, rather than paper, and we all support that. However, our amendment went one stage further and said that there should be one national digital scheme. In the impact assessment and the strategic direction, to which the noble Lord referred, is one national scheme intended so that registrars do not have the flexibility to do their own thing, with their own computer? Is that now being proposed?

[Lord Harlech (Con)]

The noble Baroness asks a fair question. A major thing is being proposed, so it is best that we work with our DWP colleagues, and I commit to writing to the noble Baroness and the Committee on that point.

On the amendment to Clause 142, while we agree with the aim of improving the Tell Us Once service, our view is that the only way to achieve this is by upgrading its technology. This work is under way and expected to take up to two years to complete. It will ensure that Tell Us Once continues to operate into the future, providing us with the ability to build on opportunities to improve its speed and efficiency.

Going back to what I said earlier, it would not be right to commit to undertake a review of the service while this upgrading work is ongoing, especially as any extension of the service would require a fundamental change in how it operates, placing additional burdens on registrars and citizens, and undermining that simplicity-of-service principle. For those who still wish to use a paper process, that option will remain. For the reasons that I have set out, I am not able to accept these amendments and I hope that the noble Baroness is happy not to press them.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to hear that there is some work ongoing on the registrar process and that the noble Lord will write with further details. Obviously, if this work is already happening and we have the same intent, we would accept that our amendment is superfluous, but I need to be a little more assured that that is the case.

I was a bit more disappointed with what the Minister was saying on Tell Us Once. I suspect that the technology upgrade to which he referred is only for the current scheme, which refers only to the public sector. However, our proposal and the Marie Curie proposal, which was very well argued, is that there is now a need to extend that to the private sector—to banks, telephone companies and so on.

I did not really hear the Minister saying that that was going to be the case but, if he is going to write, maybe he could embrace that as well. As I said, Tell Us Once is a hugely popular scheme and if we can extend it further to a wider group of organisations, that would be a very popular thing for the Government to do.

In the meantime, I beg leave to withdraw the amendment.

Amendment 239 withdrawn.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I am afraid that I will speak to every single one of the amendments in this group but one, which is in the name of the noble Baroness, Lady Jones, and I have signed it. We have already debated the Secretary of State’s powers in relation to what will be the commission, in setting strategic priorities for the commissioner under Clause 32 and recommending the adoption of the ICAO code of practice before it is submitted to Parliament for consideration under Clause 33:

“Codes of practice for processing personal data”.


We have also debated Clause 34:

“Codes of practice: panels and impact assessments”.


And we have debated Clause 35:

“Codes of Practice: Secretary of States recommendations”.


The Secretary of State has considerable power in relation to the new commission, and then on top of that Clause 143 and Schedule 15 to the Bill provide significant other powers for the Secretary of State to interfere with the objective and impartial functioning of the information commission by the appointment of non-executive members of the newly formed commission. The guarantee of the independence of the ICO is intended to ensure the effectiveness and reliability of its regulatory function and that the monitoring and enforcement of data protection laws are carried out objectively and free from partisan or extra-legal considerations.

These amendments would limit the Secretary of State’s powers and leeway to interfere with the objective and impartial functioning of the new information commission, in particular by modifying Schedule 15 to the Bill to transfer budget responsibility and the appointment process of the non-executive members of the information commission to the relevant Select Committee. If so amended, the Bill would ensure that the new information commission has sufficient arm’s-length distance from the Government to oversee public and private bodies’ uses of personal data with impartiality and objectivity. DSIT’s delegated powers memorandum to the DPRRC barely mentions any of these powers, yet they are of considerable importance. Therefore, I am not surprised that there was no mention of them, but they are very significant.

We have discussed data adequacy before; of course, in his letter to us, the Minister tried to rebut some of the points we made about it. In fact, he quoted somebody who has briefed me extensively on it and has taken a very different view to the one he alleges she took in a rather partial quotation from evidence taken by the European Affairs Committee, which is now conducting an inquiry into data adequacy and its implications for the UK-EU relationship. We were told by Open Rights Group attendees at a recent meeting with the European Commission that it expressed concern to those present about the risk that the Bill poses to the EU adequacy agreement; this was not under Chatham House rules. It expressed this risk in a meeting at which a number of UK groups were present, which is highly significant in itself.

I mentioned the European Affairs Committee’s inquiry. I understand that the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs has also given written evidence on its concerns about this Bill, its impact on adequacy and how it could impact the agreement. It put its arguments rather strongly. Has the Minister seen this? Is he aware of the written evidence that it has given to the European Affairs Select Committee? I suggest that he becomes aware of it and takes a view on whether we need to postpone Report until we have seen the European Affairs Select Committee’s report. If it comes to the conclusion that data adequacy is at risk, the Government will have to go back to the drawing board in a number of respects on this Bill. If the Select Committee report comes out and says that the impact of the Bill will not be data adequate, it would be rather foolish if we had already gone through Report by that time. Far be it from me not to want the Government to have egg on their face but it would be peculiar if they did not carefully observe the evidence being put to the European Affairs Select Committee and the progress that it is making in its inquiry. I beg to move.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for introducing his amendments so ably. When I read them, I had a strong sense of déjà vu as attempts by the Government to control the appointments and functioning of new regulators have been a common theme in other pieces of legislation that we have debated in the House and which we have always resisted. In my experience, this occurred most recently in the Government’s proposals for the Office for Environmental Protection, which was dealing with EU legislation being taken into by the UK and is effectively the environment regulator. We were able to get those proposals modified to limit the Secretary of State’s involvement; we should do so again here.

I very much welcome the noble Lord’s amendments, which give us a chance to assess what level of independence would be appropriate in this case. Schedule 15 covers the transition from the Information Commissioner’s Office to the appointment of the chair and non-executive members of the new information commission. We support this development in principle but it is crucial that the new arrangements strengthen rather than weaken the independence of the new commission.

The noble Lord’s amendments would rightly remove the rights of the Secretary of State to decide the number of non-executive members and to appoint them. Instead, his amendments propose that the chair of the relevant parliamentary committee should oversee appointments. Similarly, the amendments would remove the right of the Secretary of State to recommend the appointment and removal of the chair; again, this should be passed to the relevant parliamentary committee. We agree with these proposals, which would build in an additional tier of parliamentary oversight and help remove any suspicion that the Secretary of State is exercising unwarranted political pressure on the new commission.

The noble Lord’s amendments beg the question of what the relevant parliamentary committee might be. Although we are supportive of the wording as it stands, it is regrettable that we have not been able to make more progress on establishing a strong bicameral parliamentary committee to oversee the work of the information commission. However, in the absence of such a committee, we welcome the suggestion made in the noble Lord’s Amendment 256 that the Commons Science, Innovation and Technology Committee could fulfil that role.

Finally, we have tabled Amendment 259, which addresses what is commonly known as the “revolving door” whereby public sector staff switch to jobs in the private sector and end up working for industries that they were supposedly investigating and regulating previously. This leads to accusations of cronyism and corruption; whether or not there is any evidence of this, it brings the reputation of the whole sector into disrepute. Perhaps I should have declared an interest at the outset: I am a member of the Advisory Committee on Business Appointments and therefore have a ringside view of the scale of the revolving door taking place, particularly at the moment. We believe that it is time to put standards in public life back at the heart of public service; setting new standards on switching sides should be part of that. Our amendment would put a two-year ban on members of the information commission accepting employment from a business that was subject to enforcement action or acting for persons who are being investigated by the agency.

I hope that noble Lords will see the sense and importance of these amendments. I look forward to the Minister’s response.

[Lord Harlech (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones of Whitchurch, for their amendments to Schedule 15 to the Bill, which sets out the governance structure of the new information commission.

The ICO governance reforms ensure its accountability to Parliament. Before I go any further, let me stress that the Government are committed to the ICO’s ongoing independence. We have worked closely with the Information Commissioner, who is supportive of the reforms, which they state allow the ICO

“to continue to operate as a trusted, fair and independent regulator”.

The Government’s view, therefore, is that this Bill is compatible with maintaining the free flow of personal data from Europe. These reforms have been designed carefully with appropriate safeguards in place to protect the information commission’s independence and ensure accountability before Parliament on important issues such as public appointments, money and accounts.

The Bill requires the Secretary of State to give the member a written statement of reasons for the removal and make public the decision to do so, ensuring accountability and transparency. This process is in line with standard practice for other UK regulators, such as Ofcom, which do not require parliamentary oversight for the removal of non-executives.

The chair can be removed only by His Majesty on an Address by both Houses, provided that the Secretary of State presents a report in Parliament stating that they are satisfied that there are serious grounds for removal, as set out in the Bill. This follows the process for the removal of the current Information Commissioner.

Greater performance measurement will help the ICO achieve its objectives and enable it to adjust its resources to prioritise key areas of work. This will also increase accountability to Parliament—a point raised by both noble Lords—organisations and the public, who have an interest in its effectiveness.

The Government are satisfied that these processes safeguard the integrity of the regulator, are in line with best practices for other regulators and, crucially, balance the importance of the information commission’s independence with appropriate oversight by the Government and Parliament as necessary. The regulator is, and remains, accountable to Parliament, not the Government, in its delivery of data protection regulation.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, as ever, the noble Baroness, Lady Kidron, has nailed this issue. She has campaigned tirelessly in the field of child sexual abuse and has identified a major loophole.

What has been so important is learning from experience and seeing how these new generative AI models, which we have all been having to come to terms with them for the past 18 months, are so powerful in the hands of ordinary people who want to cause harm and sexual abuse. The important thing is that, under existing legislation, there are of course a number of provisions relating to creating deepfake child pornography, the circulation of pornographic deepfakes and so on. However, as the noble Baroness said, what the legislation does not do is go upstream to the AI system—the AI model itself—to make sure that those who develop those models are caught as well. That is what a lot of the discussion around deepfakes is about at the moment—it is, I would say, the most pressing issue—but it is also about trying to nail those AI system owners and users at the very outset, not waiting until something is circulated or, indeed, created in the first place. We need to get right up there at the outset.

I very much support what the noble Baroness said; I will reserve any other remarks for the next group of amendments.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am pleased that we were able to sign this amendment. Once again, the noble Baroness, Lady Kidron, has demonstrated her acute ability to dissect and to make a brilliant argument about why an amendment is so important.

As the noble Lord, Lord Clement-Jones, and others have said previously, what is the point of this Bill? Passing this amendment and putting these new offences on the statute book would give the Bill the purpose and clout that it has so far lacked. As the noble Baroness, Lady Kidron, has made clear, although it is currently an offence to possess or distribute child sex abuse material, it is not an offence to create these images artificially using AI techniques. So, quite innocent images of a child—or even an adult—can be manipulated to create child sex abuse imagery, pornography and degrading or violent scenarios. As the noble Baroness pointed out, this could be your child or a neighbour’s child being depicted for sexual gratification by the increasingly sophisticated AI creators of these digital models or files.

Yesterday’s report from the Internet Watch Foundation said that a manual found on the dark web encourages “nudifying” tools to remove clothes from child images, which can then be used to blackmail them into sending more graphic content. The IWF reports that the scale of this abuse is increasing year on year, with 275,000 web pages containing child sex abuse being found last year; I suspect that this is the tip of the iceberg as much of this activity is occurring on the dark web, which is very difficult to track. The noble Baroness, Lady Kidron, made a powerful point: there is a danger that access to such materials will also encourage offenders who then want to participate in real-world child sex abuse, so the scale of the horror could be multiplied. There are many reasons why these trends are shocking and abhorrent. It seems that, as ever, the offenders are one step ahead of the legislation needed for police enforcers to close down this trade.

As the noble Baroness, Lady Kidron, made clear, this amendment is “laser focused” on criminalising those who are developing and using AI to create these images. I am pleased to say that Labour is already working on a ban on creating so-called nudification tools. The prevalence of deepfakes and child abuse on the internet is increasing the public’s fear of the overall safety of AI, so we need to win their trust back if we are to harness the undoubted benefits that it can deliver to our public services and economy. Tackling this area is one step towards that.

Action to regulate AI by requiring transparency and safety reports from all those at the forefront of AI development should be a key part of that strategy, but we have a particular task to do here. In the meantime, this amendment is an opportunity for the Government to take a lead on these very specific proposals to help clean up the web and rid us of these vile crimes. I hope the Minister can confirm that this amendment, or a government amendment along the same lines, will be included in the Bill. I look forward to his response.

[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for tabling Amendment 291, which would create several new criminal offences relating to the use of AI to collect, collate and distribute child abuse images or to possess such images after they have been created. Nobody can dispute the intention behind this amendment.

We recognise the importance of this area. We will continue to assess whether and what new offences are needed to further bolster the legislation relating to child sexual abuse and AI, as part of our wider ongoing review of how our laws need to adapt to AI risks and opportunities. We need to get the answers to these complex questions right, and we need to ensure that we are equipping law enforcement with the capabilities and the powers needed to combat child sexual abuse. Perhaps, when I meet the noble Baroness, Lady Kidron, on the previous group, we can also discuss this important matter.

However, for now, I reassure noble Lords that any child sex abuse material, whether AI generated or not, is already illegal in the UK, as has been said. The criminal law is comprehensive with regard to the production and distribution of this material. For example, it is already an offence to produce, store or share any material that contains or depicts child sexual abuse, regardless of whether the material depicts a real child or not. This prohibition includes AI-generated child sexual abuse material and other pseudo imagery that may have been AI or computer generated.

We are committed to bringing to justice offenders who deliberately misuse AI to generate child sexual abuse material. We demonstrated this as part of the road to the AI Safety Summit, where we secured agreement from NGO, industry and international partners to take action to tackle AI-enabled child sexual abuse. The strongest protections in the Online Safety Act are for children, and all companies in scope of the legislation will need to tackle child sexual abuse material as a priority. Applications that use artificial intelligence will not be exempt and must incorporate robust guard-rails and safety measures to ensure that AI models and technology cannot be manipulated for child sexual abuse purposes.

Furthermore, I reassure noble Lords that the offence of taking, making, distributing and possessing with a view to distribution any indecent photograph or pseudophotograph of a child under the age of 18 carries a maximum sentence of 10 years’ imprisonment. Possession alone of indecent photographs or pseudophotographs of children can carry a maximum sentence of up to five years’ imprisonment.

However, I am not able to accept the amendment, as the current drafting would capture legitimate AI models that have been deliberately misused by offenders without the knowledge or intent of their creators to produce child sexual abuse material. It would also inadvertently criminalise individual users who possess perfectly legal digital files with no criminal intent, due to the fact that they could, when combined, enable the creation of child sexual abuse material.

I therefore ask the noble Baroness to withdraw the amendment, while recognising the strength of feeling and the strong arguments made on this issue and reiterating my offer to meet with her to discuss this ahead of Report.

Data Protection and Digital Information Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Wednesday 17th April 2024 Grand Committee

The noble Lord, Lord Clement-Jones, made an excellent case and, for the reasons given, I support his amendment.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I listened carefully to the explanation given by the noble Lord, Lord Clement-Jones, for his stand part notice on Clause 44. I will have to read Hansard, as I may have missed something, but I am not sure I am convinced by his arguments against Clause 44 standing part. He described his stand part notice as “innocuous”, but I am concerned that if the clause were removed it would have a slightly wider implication than that.

We feel that there are some advantages to how Clause 44 is currently worded. As it stands, it simply makes it clear that data subjects have to use the internal processes to make complaints to controllers first, and then the controller has the obligation to respond without undue delay. Although this could place an extra burden on businesses to manage and reply to complaints in a timely manner, I would have thought that this was a positive step to be welcomed. It would require controllers to have clear processes in place for handling complaints; I hope that that in itself would be an incentive against their conducting the kind of unlawful processing that prompts complaints in the first place. This seems the best practice, which would apply anyway in most organisations and complaint and arbitration systems, including, perhaps, ombudsmen, which I know the noble Lord knows more about than I do these days. There should be a requirement to use the internal processes first.

The clause makes it clear that the data subject has a right to complain directly to the controller and it makes clear that the controller has an obligation to respond. Clause 45 then goes on to make a different point, which is that the commissioner has a right to refuse to act on certain complaints. We touched on this in an earlier debate. Clearly, to be in line with Clause 44, the controller would have to have finished handling the case within the allotted time. We agree with that process. However, an alternative reason for the commissioner to refuse is when the complaint is “vexatious or excessive”. We have rehearsed our arguments about the interpretation of those words in previous debates on the application of subject access requests. I do not intend to repeat them here, but our concern about that wording rightly remains. What is important here is that the ICO should not be able to reject complaints simply because the complainant is distressed or angry. It is helpful that the clause states that in these circumstances,

“the Commissioner must inform the complainant”

of the reasons it is considered vexatious or excessive. It is also helpful that the clause states that this

“does not prevent the complainant from making it a complaint again”,

presumably in a way more compliant with the rules. Unlike the noble Lord, Lord Clement Jones—as I said, I will look at what he said in more detail—on balance, we are content with the wording as it stands.

On a slightly different tack, we have added our name to Amendment 154, in the name of the noble Lord, Lord Clement-Jones, and we support Amendment 287 on a similar subject. This touches on a similar principle to our previous debate on the right of data communities to raise data-breach complaints on behalf of individuals. In these amendments, we are proposing that there should be a collective right for organisations to raise data-breach complaints for individuals or groups of individuals who do not necessarily feel sufficiently empowered or confident to raise the complaints on their own behalf. There are many reasons why this reticence might occur, not least that the individuals may feel that making a complaint would put their employment on the line or that they would suffer discrimination at work in the future. We therefore believe that these amendments are important to widen people’s access to work with others to raise these complaints.

Since these amendments were tabled, we have received the letter from the Minister that addresses our earlier debate on data communities. I am pleased to see the general support for data intermediaries that he set out in his letter. We argue that a data community is a separate distinct collective body, which is different from the wider concept of data intermediaries. This seems to be an area in which the ICO could take a lead in clarifying rights and set standards. Our Amendment 154 would therefore set a deadline for the ICO to do that work and for those rights to be enacted.

The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, made a good case for broadening these rights in the Bill and, on that basis, I hope the Minister will agree to follow this up, and follow up his letter so that we can make further progress on this issue.

The noble Lord, Lord Clement-Jones, has tabled a number of amendments that modify the courts and tribunals functions. I was hoping that when I stood here and listened to him, I would understand a bit more about the issues. I hope he will forgive me for not responding in detail to these arguments. I do not feel that I know enough about the legal background to the concerns but he seems to have made a clear case in clarifying whether the courts or tribunals should have jurisdiction in data protection issues.

On that basis, I hope that the Minister will also provide some clarification on these issues and I look forward to his response.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for tabling these amendments to Clauses 44 and 45, which would reform the framework for data protection complaints to the Information Commissioner.

The noble Lord, Lord Clement-Jones, has given notice of his intention to oppose Clause 44 standing part of the Bill. That would remove new provisions from the Bill that have been carefully designed to provide a more direct route to resolution for data subjects’ complaints. I should stress that these measures do not limit rights for data subjects to bring complaints forward, but instead provide a more direct route to resolution with the relevant data controller. The measures formalise current best practice, requiring the complainant to approach the relevant data controller, where appropriate, to attempt to resolve the issue prior to regulatory involvement.

The Bill creates a requirement for data controllers to facilitate the making of complaints and look into what may have gone wrong. This should, in most cases, result in a much quicker resolution of data protection-related complaints. The provisions will also have the impact of enabling the Information Commissioner to redeploy resources away from handling premature complaints where such complaints may be dealt with more effectively, in the first instance, by controllers and towards value-added regulatory activity, supporting businesses to use data lawfully and in innovative ways.

The noble Lord’s Amendment 153 seeks, in effect, to expand the scope of the Information Commissioner’s duty to investigate complaints under Section 165 of the Data Protection Act. However, that Section of the Act already provides robust redress routes, requiring the commissioner to take appropriate steps to respond to complaints and offer an outcome or conclude an investigation within a specified period.

The noble Lord raised the enforcement of the UK’s data protection framework. I can provide more context on the ICO’s approach, although noble Lords will be aware that it is enforced independently of government by the ICO; it would of course be inappropriate for me to comment on how the ICO exercises its enforcement powers. The ICO aims to be fair, proportionate and effective, focusing on areas with the highest risk and most harm, but this does not mean that it will enforce every case that crosses its books.

The Government have introduced a new requirement on the ICO—Clause 43—to publish an annual report on how it has exercised its enforcement powers, the number and nature of investigations, the enforcement powers used, how long investigations took and the outcome of the investigations that ended in that period. This will provide greater transparency and accountability in the ICO’s exercise of its enforcement powers. For these reasons, I am not able to accept these amendments.

I also thank the noble Baroness and the noble Lord for their Amendments 154 and 287 concerning Section 190 of the Data Protection Act. These amendments would require the Secretary of State to legislate to give effect to Article 80(2) of the UK GDPR to enable relevant non-profit organisations to make claims against data controllers for alleged data breaches on behalf of data subjects, without those data subjects having requested or agreeing to the claim being brought. Currently, such non-profit organisations can already pursue such actions on behalf of individuals who have granted them specific authorisation, as outlined in Article 80(1).

In 2021, following consultation, the Government concluded that there was insufficient evidence to justify implementing Article 80(2) to allow non-profit organisations to bring data protection claims without the authorisation of the people affected. The Government’s response to the consultation noted that the regulator can and does investigate complaints raised by civil society groups, even when they are not made on behalf of named individuals. The ICO’s investigations into the use of live facial recognition technology at King’s Cross station and in some supermarkets in southern England are examples of this.

I also thank the noble Baroness, Lady Kidron, for raising her concerns about the protection of children throughout the debate—indeed, throughout all the days in Committee. The existing regime already allows civil society groups to make complaints to the ICO about data-processing activities that affect children and vulnerable people. The ICO has a range of powers to investigate systemic data breaches under the current framework and is already capable of forcing data controllers to take decisive action to address non-compliance. We are strengthening its powers in this Bill. I note that only a few member states of the EU have allowed non-governmental organisations to launch actions without a mandate, in line with the possibility provided by the GDPR.

I turn now to Amendments 154A, 154B—

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

177: Clause 53, page 88, line 16, at end insert—
“(13) The DVS trust framework and any revision to it must be made by regulations subject to the affirmative resolution procedure.”Member’s explanatory statement
This amendment would require the document setting rules for providers of digital verification services (or any revisions to it) to be laid before, and approved by, both Houses of Parliament. It is intended to implement a recommendation of the Delegated Powers and Regulatory Reform Committee.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we now move on to Part 2 of the Bill, which concerns the provision of digital verification services. In moving Amendment 177, I will also speak to the amendments through to Amendment 195; apart from one, all of them are in my name and have the support of the noble Lord, Lord Clement-Jones, for which I am grateful.

--- Later in debate ---

[Viscount Camrose (Con)]

I have no doubt that its contribution to the letter will be equally enjoyable. However, for all the reasons I set out above, I am not able to accept these amendments and respectfully encourage the noble Baroness and noble Lords not to press them.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I suppose I am meant to say that I thank the Minister for his response, but I cannot say that it was particularly optimistic or satisfying. On my amendments, the Minister said he would be responding to the DPRRC in due course, and obviously I am interested to see that response, but as the noble Lord, Lord Clement-Jones, said, the committee could not have been clearer and I thought made a very compelling case for why there should be some parliamentary oversight of this main code and, indeed, the fees arrangements.

I understand that it is a fast-moving sector, but the sort of things that the Delegated Powers Committee was talking about was that the main code should have some fundamental principles, some user rights and so on. We are not trying to spell out every sort of service that is going to be provided—as the Minister said, it is a fast-moving sector—but people need to have some trust in it and they need to know what this verification service is going to be about. Just saying that there is going to be a code, on such an important area, and that the Secretary of State will write it, is simply not acceptable in terms of basic parliamentary democracy. If it cannot be done through an affirmative procedure, the Government need to come up with another way to make sure that there is appropriate parliamentary input into what is being proposed here.

On the subject of the fees, the Delegated Powers Committee and our amendment was saying only that there should be a negative SI. I thought that was perfectly reasonable on its part and I am sorry that the Minister is not even prepared to accept that perfectly suggestion. All in all, I thought that the response on that element was very disappointing.

The response was equally disappointing on the whole issue that the noble Lords, Lord Kamall and Lord Vaux, raised about the right not to have to use the digital verification schemes but to do things on a non-digital basis. The arguments are well made about the numbers of people who are digitally excluded. I was in the debate that the noble Lord referred to, and I cannot remember the statistics now, but something like 17% of the population do not have proper digital access, so we are excluding a large number of people from a whole range of services. It could be applying for jobs, accessing bank accounts or applying to pay the rent for your son’s flat or whatever. We are creating a two-tier system here, for those who are involved and those who are on the margins who cannot use a lot of the services. I would have hoped that the Government would have been much more engaged in trying to find ways through that and providing some guarantees to people.

We know that we are taking a big leap, with so many different services going online. There is a lot of suspicion about how these services are going to work and people do not trust that computers are always as accurate as we would like them to be, so they would like to feel that there is another way of doing it if it all goes wrong. It worries me that the Minister is not able to give that commitment.

I have to say that I am rather concerned by what the Minister said about the private sector—in effect, that it can already have a requirement to have digital only. Surely, in this brave new world we are going towards, we do not want a digital-only service; this goes back to the point about a whole range of people being excluded. What is wrong with saying, even to people who collect people’s bank account details to pay their son’s rent, “There is an alternative way of doing this as well as you providing all the information digitally”? I am very worried about where all this is going, including who will be part of it and who will not. If the noble Lords, Lord Kamall and Lord Vaux, wish to pursue this at a later point, I would be sympathetic to their arguments.

On identity theft, the noble Lord, Lord Clement-Jones, made a compelling case. The briefing that he read out from the Metropolitan Police said that your data is one of your most valuable assets, which is absolutely right. He also rightly made the point that this is linked to organised crime. It does not happen by accident; some major people are farming our details and using them for all sorts of nefarious activities. There is a need to tighten up the regulation and laws on this. The Minister read out where he thinks this is already dealt with under existing legislation but we will all want to scrutinise that and see whether that really is the case. There are lots of examples of where the police have not been able to help people and do not know what their rights are, so we just need to know exactly what advice has been given to the police.

I feel that the Minister could have done more on this whole group to assure us that we are not moving towards a two-tier world. I will withdraw my amendment, obviously, but I have a feeling that we will come back to this issue; it may be something that we can talk to the Minister about before we get to Report.

Amendment 177 withdrawn.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, it has been a pleasure to listen to noble Lords’ speeches in this debate. We are all very much on the same page and have very much the same considerations in mind. Both the protection of biometric data itself and also the means by which we regulate its use and have oversight over how it is used have been mentioned by everyone. We may have slightly different paths to making sure we have that protection and oversight, but we all have the same intentions.

The noble Lord, Lord Holmes, pointed to the considerable attractions of, in a sense, starting afresh, but I have chosen a rather different path. I think it was the noble Lord, Lord Vaux, who mentioned Fraser Sampson, the former Biometrics and Surveillance Camera Commissioner. I must admit that I have very high regard for the work he did, and also for the work of such people as Professor Peter Fussey of Essex University. Of course, a number of noble Lords have mentioned the work of CRISP in all this, which kept us very well briefed on the consequence of these clauses.

No one has yet spoken to the stand part notices on Clauses 130 to 132; I will come on to those on Clauses 147 to 149 shortly. The Bill would drastically change the way UK law enforcement agencies can handle biometric personal data. Clauses 130 to 132 would allow for data received from overseas law enforcement agencies to be stored in a pseudonymised, traceable format indefinitely.

For instance, Clause 130 would allow UK law enforcement agencies to hold biometric data received from overseas law enforcement agencies in a pseudonymised format. In cases where the authority ceases to hold the material pseudonymously and the individual has no previous convictions or only one exempt conviction, the data may be retained in a non-pseudonymous format for up to three years. Therefore, the general rule is indefinite retention with continuous pseudonymisation, except for a specific circumstance where non-pseudonymised retention is permitted for a fixed period. I forgive noble Lords if they have to read Hansard to make total sense of that.

This is a major change in the way personal data can be handled. Permitting storage of pseudonymised or non-pseudonymised data will facilitate a vast biometric database that can be traced back to individuals. Although this does not apply to data linked to offences committed in the UK, it sets a concerning precedent for reshaping how law enforcement agencies hold data in a traceable and identifiable way. It seems that there is nothing to stop a law enforcement agency pseudonymising data just to reattach the identifying information, which they would be permitted to hold for three years.

The clauses do not explicitly define the steps that must be taken to achieve pseudonymisation. This leaves a broad scope for interpretation and variation in practice. The only requirement is that the data be pseudonymised

“as soon as reasonably practicable”,

which is a totally subjective threshold. The collective impact of these clauses, which were a late addition to the Bill on Report in the Commons, is deeply concerning. We believe that these powers should be withdrawn to prevent a dangerous precedent being set for police retention of vast amounts of traceable biometric data.

The stand part notices on Clauses 147 to 149 have been spoken to extremely cogently by the noble Lord, Lord Vaux, the noble Viscount, Lord Stansgate, and the noble Baroness, Lady Harding. I will not repeat a great deal of what they said but what the noble Baroness, Lady Harding, said about the Human Fertilisation and Embryology Authority really struck a chord with me. When we had our Select Committee on Artificial Intelligence, we looked at models for regulation and how to gain public trust for new technologies and concepts. The report that Baroness Warnock did into fertilisation and embryology was an absolute classic and an example of how to gain public trust. As the noble Baroness, Lady Harding, said, it has stood the test of time. As far as I am concerned, gaining that kind of trust is the goal for all of us.

What we are doing here risks precisely the reverse by abolishing the office of the Biometrics and Surveillance Camera Commissioner. This was set up under the Protection of Freedoms Act 2012, which required a surveillance camera commissioner to be appointed and a surveillance camera code of practice to be published. Other functions of the Biometrics and Surveillance Camera Commissioner are in essence both judicial and non-judicial. They include developing and encouraging compliance with the surveillance camera code of practice; raising standards for surveillance camera developers, suppliers and users; public engagement; building legitimacy; reporting annually to Parliament via the Home Secretary; convening expertise to support these functions; and reviewing all national security determinations and other powers by which the police can retain biometric data. The Bill proposes to erase all but one—I stress that—of these activities.

The noble Lord, Lord Vaux, quoted CRISP. I will not repeat the quotes he gave but its report, which the noble Viscount, Lord Stansgate, also cited, warns that

“plans to abolish and not replace existing safeguards in this crucial area will leave the UK without proper oversight just when advances in artificial intelligence (AI) and other technologies mean they are needed more than ever”.

The Bill’s reduction of surveillance-related considerations to data protection compares unfavourably to regulatory approaches in other jurisdictions. Many have started from data protection and extended it to cover the wider rights-based implications of surveillance. Here, the Bill proposes a move in precisely the opposite direction. I am afraid this is yet another example of the Bill going entirely in the wrong direction.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have contributed to what has been an excellent debate on this issue. We have all been united in raising our concerns about whether the offices of the biometrics commissioner and the surveillance camera commissioner should be abolished. We all feel the need for more independent oversight, not less, as is being proposed here.

As we know, the original plan was for the work of the biometrics commissioner to be transferred to the Information Commissioner, but when he raised concerns that this would result in the work receiving less attention, it was decided to transfer it to the Investigatory Powers Commissioner instead. Meanwhile, the office of the surveillance camera commissioner is abolished on the basis that these responsibilities are already covered elsewhere. However, like other noble Lords, we remain concerned that the transfer of this increasingly important work from both commissioners will mean that it does not retain the same level of expertise and resources as it enjoys under the current regime.

These changes have caused some alarm among civic society groups such as the Ada Lovelace Institute and the Centre for Research into Information Surveillance and Privacy, to which noble Lords have referred. They argue that we are experiencing a huge expansion in the reach of surveillance and biometric technology. The data being captured, whether faces, fingerprints, walking style, voice or the shape of the human body, are uniquely personal and part of our individual identity. The data being captured can enhance public safety but can also raise critical ethical concerns around privacy, free expression, bias and discrimination. As the noble Lord, Lord Vaux, said, we need a careful balance of those issues between protection and privacy.

The noble Baroness, Lady Harding, quite rightly said that there is increasing public mistrust in the use of these techniques, and that is why there is an urgent need to take people on the journey. The example the noble Baroness gave was vivid. We need a robust legal framework to underpin the use of these techniques, whether it is by the police, the wider public sector or private institutions. As it stands, the changes in the Bill do not achieve that reassurance, and we have a lot of lessons to learn.

Rather than strengthening the current powers to respond to the huge growth and reach of surveillance techniques, the Bill essentially waters down the protections. Transferring the powers from the BSCC to the new Information Commissioner brings the issue down to data protection when the issues of intrusion and the misuse of biometrics and surveillance are much wider than that. Meanwhile, the impact of Al will herald a growth of new techniques such as facial emotional appraisal and video manipulation, leading to such things as deep fakes. All these techniques threaten to undermine our sense of self and our control of our own personal privacy.

The amendment in the name of the noble Lord, Lord Holmes, takes up the suggestion, also made by the Ada Lovelace Institute, to establish a biometrics office within the ICO, overseen by three experienced commissioners. The functions would provide general oversight of biometric techniques, keep a register of biometric users and set up a process for considering complaints. Importantly, it would require all entities processing biometric data to register with the ICO prior to any use.

We believe that these amendments are a really helpful contribution to the discussion. They would place the oversight of biometric techniques in a more effective setting where the full impacts of these techniques can be properly monitored, measured and reported on. We would need more details of the types of work to be undertaken by these commissioners, and the cost implications but, in principle, we support these amendments because they seem to be an answer to our concerns. We thank the noble Lord for tabling them and very much hope the Minister will give the proposals serious consideration.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

I am sorry, but I am wondering whether the Minister is going to say any more on the amendment in the name of the noble Lord, Lord Holmes. Can I be clear? The Minister said that the ICO is the best place to oversee these issues, but the noble Lord’s amendment recognises that; it just says that there should be a dedicated biometrics unit with specialists, et cetera, underneath it. I am looking towards the noble Lord—yes, he is nodding in agreement. I do not know that the Minister dismissed that idea, but I think that this would be a good compromise in terms of assuaging our concerns on this issue.

[Viscount Camrose (Con)]

I apologise if I have misunderstood. It sounds like it would be a unit within the ICO responsible for that matter. Let me take that away if I have misunderstood—I understood it to be a separate organisation altogether.

The Government deem Amendment 238 unnecessary, as using biometric data to categorise or make inferences about people, whether using algorithms or otherwise, is already subject to the general data protection principles and the high data protection standards of the UK’s data protection framework as personal data. In line with ICO guidance, where the processing of biometric data is intended to make an inference linked to one of the special categories of data—for example, race or ethnic origin—or the biometric data is processed for the intention of treating someone differently on the basis of inferred information linked to one of the special categories of data, organisations should treat this as special category data. These protections ensure that this data, which is not used for identification purposes, is sufficiently protected.

Similarly, Amendment 286 intends to widen the scope of the Forensic Information Databases Service—FINDS—strategy board beyond oversight of biometrics databases for the purpose of identification to include “classification” purposes as well. The FINDS strategy board currently provides oversight of the national DNA database and the national fingerprint database. The Bill puts oversight of the fingerprint database on the same statutory footing as that of the DNA database and provides the flexibility to add oversight of new biometric databases, where appropriate, to provide more consistent oversight in future. The delegated power could be used in the medium term to expand the scope of the board to include a national custody image database, but no decisions have yet been taken. Of course, this will be kept under review, and other biometric databases could be added to the board’s remit in future should these be created and should this be appropriate. For the reasons I have set out, I hope that the noble Baroness, Lady Jones of Whitchurch, will therefore agree not to move Amendments 238 and 286.

Responses to the data reform public consultation in 2021 supported the simplification of the complex oversight framework for police use of biometrics and surveillance cameras. Clauses 147 and 148 of the Bill reflect that by abolishing the Biometrics and Surveillance Camera Commissioner’s roles while transferring the commissioner’s casework functions to the Investigatory Powers Commissioner’s Office.

Noble Lords referred to the CRISP report, which was commissioned by Fraser Sampson—the previous commissioner—and directly contradicts the outcome of the public consultation on data reform in 2021, including on the simplification of the oversight of biometrics and surveillance cameras. The Government took account of all the responses, including from the former commissioner, in developing the policies set out in the DPDI Bill.

There will not be a gap in the oversight of surveillance as it will remain within the statutory regulatory remit of other organisations, such as the Information Commissioner’s Office, the Equality and Human Rights Commission, the Forensic Science Regulator and the Forensic Information Databases Service strategy board.

Data Protection and Digital Information Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Monday 15th April 2024 Grand Committee

[Lord Bethell (Con)]

My Lords, I will speak to Amendment 115 in my name. I start by saying a huge thanks to the noble Lord, Lord Clement-Jones, and my noble friend Lord Kirkhope, who have put everything so well and persuasively that I have almost nothing else to say in support. I am looking forward to the Minister throwing in the towel and accepting all the measures as suggested. Noble Lords have really landed it well.

I shall not go through the principle behind my amendment because, frankly, its benefit is so self-evident and clear that it does not need to be rehearsed in great detail. What I want to get across is the absolute and paramount urgency of the Government adopting this measure or a similar one. This is a terrific Bill; I thank the Minister for all the work that he and his team have done on it. I sat through Second Reading, although I did not speak on that day, when the Minister gave a persuasive account of the Bill; we are grateful for that.

However, this is a massive gap. It is a huge lacuna in the provisions of a Bill called a data protection Bill. It is a well-known gap in British legislation—and, by the way, in the legislation of lots of other countries. We could try to wait for an international settlement—some kind of Bretton Woods of data—where all the countries of the world put their heads together and try to hammer out an international agreement on data. That would be a wonderful thing but there is no prospect whatever of it in sight, so the time has come for countries to start looking at their own unilateral arrangements on the international transfer of data.

We have sought to duck this commitment by stringing together a Heath Robinson set of arrangements around transfer risk arrestments and bilateral agreements with countries. This has worked to some extent—at least to the extent that there is a booming industry around data. We should not diminish that achievement but there are massive gaps and huge liabilities in that arrangement, as my noble friend Lord Kirkhope rightly described, particularly now that we are living in a new, polarised world where countries of concern deliberately seek to harvest our data for their own security needs.

There are three reasons why this has become not just a chronic issue that could perhaps be kicked down the road a bit but an acute issue that should be dealt with immediately in the Bill’s provisions. The first, which my noble friend hinted at, is the massive flood of new data coming our way. I had the privilege of having a look at a BYD car. It was absolutely awesome and, by the way, phenomenally cheap; if the Chinese taxpayer is okay with subsidising our cars, I would highly recommend them to everyone here. One feature of the car is a camera on the dashboard that looks straight at the driver’s face, including their emotional resonance; for instance, if you look weary, it will prompt you to stop and have a coffee. That is a lovely feature but it is also mapping your face for hours and hours every year and, potentially, conveying that information to the algorithmic artificial intelligence run by the CCP in China—something that causes me huge personal concern. Lady Kirkhope may be worried about her fridge but I am very worried about my potential car. I embrace the huge global growth of data exchanges and technology’s benefits for citizens, taxpayers and voters, but this must be done in a well-curated field. The internet of things, which, as many noble Lords will know, was invented by Charlie Parsons, is another aspect of this.

Secondly, the kind of data being exchanged is becoming increasingly sensitive. I have mentioned the video in the BYD car; genomics data is another area of grave concern. I have an associate fellowship at King’s College London’s Department of War Studies, looking specifically at bioweapons and the transfer of genomic data. Some of this is on the horizon; it is not of immediate use from a strategic and national security point of view today but the idea that there could be, as in a James Bond film, some way of targeting individuals with poisons based on their genomic make-up is not beyond imagination.

The idea that you could create generalised bioweapons around genomics or seek to influence people based in part on insight derived from their genomic information is definitely on the horizon. We know that because China is doing some of this already; in the west of China, it is able to identify members of the Uighur tribes. In fact, China can say to someone, “We’re calling you up because we know that you’re the cousin of someone who is in prison today”, and this has happened. How does China know that? It has done it through the genomic tracking in its databases. China’s domestic use of data, through the social checking of genomic data and financial transactions, is a very clear precedent for the kinds of things that could be applied to the data that we are sharing with such countries.

Thirdly, there is the sensitivity of what uses the data is being put to. The geopolitics of the world are changing considerably. We now have what the Americans call countries of concern that are going out of their way to harvest and collect data on our populations. It is a stated element of their national mission to acquire data that could be used for national security purposes. These are today’s rivals but, potentially, tomorrow’s enemies.

For those three reasons, I very much urge the Minister to think about ways in which provisions on the international transfer of data could be added to the Bill. Other countries are certainly looking at the same; on 28 February this year, President Biden issued executive order 14117, which in many ways echoes the themes of our Amendment 115. It says clearly that there is an “unacceptable risk” to US national security from the large sharing of data across borders and asks the DoJ to publish a “countries of concern” list. That list has already been published and the countries on it are as the Committee would expect. It also seeks to define priority data. In other words, it is a proportionate, thoughtful and sensible set of measures to try to bring some kind of guard-rail to an industry where data transfer is clearly of grave concern to Americans. It looks particularly at genomic and financial transaction data but it has the capacity to be a little broader.

I urge the Minister to consider that this is now the time for unilateral action by the British Government. As my noble friend Lord Kirkhope said, if we do not do that, we may find ourselves being left behind by the EU, including the Irish, by the Americans and so on. There is an important spill-over effect from Britain acting sensibly that will do something to inspire and prod others into action. It is totally inappropriate to continue this pretence that British citizens are having their data suitably protected by the kind of commercial contracts that they are signing, which have no kind of redress or legal standing in the country of destination.

Lastly, the commercial point is very important. For those of us who seek to champion an open, global internet and a free flow of data while facilitating investment in that important trade, we must curate and care for it in a way that instils trust and responsibility, otherwise the whole thing will be blown up and people will start pulling wires out of the back of machines.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am very grateful to the noble Lords, Lord Clement-Jones, Lord Bethell and Lord Kirkhope, for tabling these amendments and for enabling us to have a good debate on the robustness of the proposed international data rules, which are set out in Schedules 5 and 7. Incidentally, I do not share the enthusiasm expressed by the noble Lord, Lord Bethell, for the rest of the Bill, but on this issue we are in agreement—and perhaps the other issues are for debate some other time.

--- Later in debate ---

[Viscount Camrose (Con)]

I am not sure I accept that it is “quite something”, in the noble Lord’s words. As and when the appropriate solution emerges, we will bring it forward—no doubt between Committee and Report.

On Amendment 115, we share the noble Lords’ feelings on the importance of redress for data subjects. That is why the Secretary of State must already consider the arrangements for redress for data subjects when making a data bridge. There is already an obligation for the Secretary of State to consult the ICO on these regulations. Similarly, when considering whether the data protection test is met before making a transfer subject to appropriate safeguards using Article 46, the Government expect that data exporters will also give consideration to relevant enforceable data subject rights and effective legal remedies for data subjects.

Our rules mean that companies that transfer UK personal data must uphold the high data protection standards we expect in this country. Otherwise, they face action from the ICO, which has powers to conduct investigations, issue fines and compel companies to take corrective action if they fail to comply. We will continue to monitor and mitigate a wide range of data security risks, regardless of provenance. If there is evidence of threats to our data, we will not hesitate to take the necessary action to protect our national security.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we heard from the two noble Lords some concrete examples of where those data breaches are already occurring, and it does not appear to me that appropriate action has been taken. There seems to be a mismatch between what the Minister is saying about the processes and the day-to-day reality of what is happening now. That is our concern, and it is not clear how the Government are going to address it.

[Lord Clement-Jones (LD)]

My Lords, in a way the Minister is acknowledging that there is a watering down taking place, yet the Government seem fairly relaxed about seeing these issues. If something happens, the Government will do something or other, or the commissioner will. But the Government are proposing to water down Article 45, and that is the essence of what we are all talking about here. We are not satisfied with the current position, and watering down Article 45 will make it even worse; there will be more Yandexes.

--- Later in debate ---

This is an extremely well-crafted amendment, and I hope that the Minister will be positive about it. I cannot understand what barriers the Government are seeing that prevent this provision being introduced—and I hope that he has some good answers to the noble Baroness’s questions, because that was a good set of questions and they raised some fundamental issues.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Lord, Lord Bethell, and his cosignatories for bringing this comprehensive amendment before us this afternoon. As we have heard, this is an issue that was debated at length in the Online Safety Act. It is, in effect, unfinished business. I pay tribute to the noble Lords who shepherded that Bill through the House so effectively. It is important that we tie up the ends of all the issues. The noble Lord made significant progress, but those issues that remain unresolved come, quite rightly, before us now, and this Bill is an appropriate vehicle for resolving those outstanding issues.

As has been said, the heart of the problem is that tech companies are hugely protective of the data they hold. They are reluctant to share it or to give any insight on how their data is farmed and stored. They get to decide what access is given, even when there are potentially illegal consequences, and they get to judge the risk levels of their actions without any independent oversight.

During the course of the Online Safety Bill, the issue was raised not only by noble Lords but by a range of respected academics and organisations representing civil society. They supported the cross-party initiative from Peers calling for more independent research, democratic oversight and accountability into online safety issues. In particular, as we have heard, colleagues identified a real need for approved researchers to check the risks of non-compliance in the regulated sectors of UK law by large tech companies—particularly those with large numbers of children accessing the services. This arose because of the increasing anecdotal evidence that children’s rights were being ignored or exploited. The noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, have given an excellent exposition of the potential and real harms that continue to be identified by the lack of regulatory action on these issues.

Like other noble Lords, I welcome this amendment. It is well-crafted, takes a holistic approach to the problem, makes the responsibilities of the large tech companies clear and establishes a systematic research base of vetted researchers to check compliance. It also creates important criteria for the authorisation of those vetted researchers: the research must be in the public interest, must be transparent, must be carried out by respected researchers, and must be free from commercial interests so that companies cannot mark their own homework. As has been said, it mirrors the provisions in the EU Digital Services Act and ensures comparable research opportunities. That is an opportunity for the UK to maintain its status as one of the top places in the world for expertise on the impact of online harms.

Since the Online Safety Act was passed, the Information Commissioner has been carrying out further work on the children’s code of practice. The latest update report says:

“There has been significant progress and many organisations have started to assess and mitigate the potential privacy risks to children on their platforms”.


That is all well and good but the ICO and other regulators are still reliant on the information provided by the tech companies on how their data is used and stored and how they mitigate risk. Their responsibilities would be made much easier if they had access to properly approved and vetted independent research information that could inform their decisions.

I am grateful to noble Lords for tabling this amendment. I hope that the Minister hears its urgency and necessity and that he can assure us that the Government intend to table a similar amendment on Report—as the noble Baroness, Lady Kidron, said, no more “wait and see”. The time has come to stop talking about this issue and take action. Like the noble Lord, Lord Clement-Jones, I was in awe of the questions that the noble Baroness came up with and do not envy the Minister in trying to answer them all. She asked whether, if necessary, it could be done via a letter but I think that the time has come on this and some other issues to roll up our sleeves, get round the table and thrash it out. We have waited too long for a solution and I am not sure that exchanges of letters will progress this in the way we would hope. I hope that the Minister will agree to convene some meetings of interested parties—maybe then we will make some real progress.

[Viscount Camrose (Con)]

My Lords, as ever, many thanks to all noble Lords who spoke in the debate.

Amendment 135, tabled by my noble friend Lord Bethell, would enable researchers to access data from data controllers and processors in relation to systemic risks to the UK and non-compliance with regulatory law. The regime would be overseen by the ICO. Let me take this opportunity to thank both my noble friend for the ongoing discussions we have had and the honourable Members in the other place who are also interested in this measure.

Following debates during the passage of the Online Safety Act, the Government have been undertaking further work in relation to access to data for online safety researchers. This work is ongoing and, as my noble friend Lord Bethell will be aware, the Government are having ongoing conversations on this issue. As he knows, the online safety regime is very broad and covers issues that have an impact on national security and fraud. I intend to write to the Committee with an update on this matter, setting out our progress ahead of Report, which should move us forward.

While we recognise the benefits of improving researchers’ access to data—for example, using data to better understand the impact of social media on users—this is a highly complex issue with several risks that are not currently well understood. Further analysis has reiterated the complexities of the issue. My noble friend will agree that it is vital that we get this right and that any policy interventions are grounded in the evidence base. For example, there are risks in relation to personal data protection, user consent and the disclosure of commercially sensitive information. Introducing a framework to give researchers access to data without better understanding these risks could have significant consequences for data security and commercially sensitive information, and could potentially destabilise any data access regime as it is implemented.

In the meantime, the Online Safety Act will improve the information available to researchers by empowering Ofcom to require major providers to publish a broad range of online safety information through annual transparency reports. Ofcom will also be able to appoint a skilled person to undertake a report to assess compliance or to develop its understanding of the risk of non-compliance and how to mitigate it. This may include the appointment of independent researchers as skilled persons. Further, Ofcom is required to conduct research into online harms and has the power to require companies to provide information to support this research activity.

Moving on to the amendment specifically, it is significantly broader than online safety and the EU’s parallel Digital Services Act regime. Any data controllers and processors would be in scope if they have more than 1 million UK users or customers, if there is a large concentration of child users or if the service is high-risk. This would include not just social media platforms but any organisation, including those in financial services, broadcasting and telecoms as well as any other large businesses. Although we are carefully considering international approaches to this issue, it is worth noting that much of the detail about how the data access provisions in the Digital Services Act will work in practice is yet to be determined. Any policy interventions in this space should be predicated on a robust evidence base, which we are in the process of developing.

The amendment would also enable researchers to access data to research systemic risks to compliance with any UK regulatory law that is upheld by the ICO, Ofcom, the Competition and Markets Authority, and the Financial Conduct Authority. The benefits and risks of such a broad regime are not understood and are likely to vary across sectors. It is also likely to be inappropriate for the ICO to be the sole regulator tasked with vetting researchers across the remits of the other regulators. The ICO may not have the necessary expertise to make this determination about areas of law that it does not regulate.

Ofcom already has the power to gather information that it requires for the purpose of exercising its online safety functions. This power applies to companies in scope of the duties and, where necessary, to other organisations or persons who may have relevant information. Ofcom can also issue information request notices to overseas companies as well as to UK-based companies. The amendment is also not clear about the different types of information that a researcher may want to access. It refers to a data controller and processors—concepts that relate to the processing of personal data under data protection law—yet researchers may also be interested in other kinds of data, such as information about a service’s systems and processes.

Although the Government continue to consider this issue—I look forward to setting out our progress between now and Report—for the reasons I have set out, I am not able to accept this amendment. I will certainly write to the Committee on this matter and to the noble Baroness, Lady Kidron, with a more detailed response to her questions—there were more than four of them, I think—in particular those about Ofcom.

--- Later in debate ---

I very much hope that we will not hear that we will be receiving another letter but, instead, that we can sit down and make sure that, as the UK updates its data protection legislation, we genuinely protect children going forward.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, for tabling these amendments and raising important points about the Information Commissioner’s independence and authority to carry out his role efficiently. The amendments from the noble Lord, Lord Clement-Jones, range widely, and I have to say that I have more sympathy with some of them than others.

I start by welcoming some of the things in the Bill—I am very pleased to be able to do this. It is important that we have an independent regulator that is properly accountable to Parliament, and this is vital for a properly functioning data protection regime. We welcome a number of the changes that have been made to the ICO’s role in the Bill. In particular, we think the move to have a board and a chief executive model, with His Majesty appointing the chair of the board, is the right way to go. We also welcome the strengthening of enforcement powers and the obligation to establish stakeholder panels to inform the content of codes of practice. The noble Baroness, Lady Kidron, also highlighted that.

However, we share the concern of the noble Lord, Lord Clement-Jones, about the Secretary of State’s requirement every three years to publish a statement of strategic priorities for the commissioner to consider, respond to and have regard to. We share his view, and that of many stakeholder groups, that this crosses the line into political involvement and exposes the ICO to unwarranted political direction and manipulation. We do not believe that this wording provides sufficient safeguards from that in its current form.

I have listened carefully to the explanation of the noble Lord, Lord Clement-Jones, of Amendment 138. I understand his concern, but we are going in a slightly different direction to him on this. We believe that the reality is that the ICO does not have the resources to investigate every complaint. He needs to apply a degree of strategic prioritisation in the public interest. I think that the original wording in the Bill, rather than the noble Lord’s amendment, achieved that objective more clearly.

Amendment 140, in the name of the noble Lord, Lord Clement-Jones, raises a significant point about businesses being given assured advice to ensure that they follow the procedures correctly, and we welcome that proposal. There is a role for leadership of the ICO in this regard. His proposal also addresses the Government’s concern that data controllers struggle to understand how they should be applying the rules. This is one of the reasons for many of the changes that we have considered up until now. I hope that the Minister will look favourably on this proposal and agree that we need to give more support to businesses in how they follow the procedures.

Finally, I have added my name to the amendment of the noble Baroness, Lady Kidron, which rightly puts a deadline on the production of any new codes of practice, and a deadline on the application of any transitional arrangements which apply in the meantime. We have started using the analogy of the codes losing their champions, and in general terms she is right. Therefore, it is useful to have a deadline, and that is important to ensure delivery. This seems eminently sensible, and I hope the Minister agrees with this too.

Amendment 150 from the noble Baroness, Lady Kidron, also requires the ICO annual report to spell out specifically the steps being taken to roll out the age-appropriate design code and to specifically uphold children’s data rights. Going back to the codes losing their champions, I am sure that the Minister got the message from the noble Baronesses, Lady Kidron and Lady Harding, that in this particular case, this is not going to happen, and that this code and the drive to deliver it will be with us for some time to come.

The noble Baroness, Lady Kidron, raised concerns about the approach of the ICO, which need to be addressed. We do not want a short-term approach but a longer-term approach, and we want some guarantees that the ICO is going to address some of the bigger issues that are being raised by the age-appropriate design code and other codes. Given the huge interest in the application of children’s data rights in this and other Bills, I am sure that the Information Commissioner will want to focus his report on his achievements in this space. Nevertheless, for the avoidance of doubt, it is useful to have it in the Bill as a specific obligation, and I hope the Minister agrees with the proposal.

We have a patchwork of amendments here. I am strongly in support of some; on others, perhaps the noble Lord and I can debate further outside this Room. In the meantime, I am interested to hear what the Minister has to say.

[Viscount Camrose (Con)]

I thank the noble Lord, Lord Clement-Jones, the noble Baroness, Lady Kidron, and other noble Lords who have tabled and signed amendments in this group. I also observe what a pleasure it is to be on a Committee with Batman and Robin—which I was not expecting to say, and which may be Hansard’s first mention of those two.

The reforms to the Information Commissioner’s Office within the Bill introduce a strategic framework of objectives and duties to provide context and clarity on the commissioner’s overarching objectives. The reforms also put best regulatory practice on to a statutory footing and bring the ICO’s responsibilities into line with that of other regulators.

With regard to Amendment 138, the principal objective upholds data protection in an outcomes-focused manner that highlights the discretion of the Information Commissioner in securing those objectives, while reinforcing the primacy of data protection. The requirement to promote trust and confidence in the use of data will encourage innovation across current and emerging technologies.

I turn now to the question of Clause 32 standing part. As part of our further reforms, the Secretary of State can prepare a statement of strategic priorities for data protection, which positions these aims within its wider policy agenda, thereby giving the commissioner helpful context for its activities. While the commissioner must take the statement into account when carrying out functions, they are not required to act in accordance with it. This means that the statement will not be used in a way to direct what the commissioner may and may not do when carrying out their functions.

Turning to Amendment 140, we believe that the commissioner should have full discretion to enforce data protection in an independent, flexible, risk-based and proportionate manner. This amendment would tie the hands of the regulator and force them to give binding advice and proactive assurance without necessarily full knowledge of the facts, undermining their regulatory enforcement role.

In response to the amendments concerning Clauses 33 to 35 standing part, I can say that we are introducing a series of measures to increase accountability, robustness and transparency in the codes of practice process, while safeguarding the Information Commissioner’s role. The requirements for impact assessments and panel of experts mean that the codes will consider the application to, and impact on, all potential use cases. Given that the codes will have the force of law, the Secretary of State must have the ability to give her or his comments. The Information Commissioner is required to consider but not to act on those comments, preserving the commissioner’s independence. It remains for Parliament to give approval for any statutory code produced.

Amendments 142 and 143 impose a requirement on the ICO to prepare codes and for the Secretary of State to lay them in Parliament as quickly as practicable. They also limit the time that transitional provisions can be in place to a maximum of 12 months. This could mean that drafting processes are truncated or valid concerns are overlooked to hit a statutory deadline, rather than the codes being considered properly to reflect the relevant perspectives.

Given the importance of ensuring that any new codes are robust, comprehensive and considered, we do not consider imposing time limits on the production of codes to be a useful tool.

Finally, Amendment 150—

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I have added my name to Amendment 146 in the name of the noble Baroness, Lady Kidron, and I thank all noble Lords who have spoken.

These days, most children learn to swipe an iPad long before they learn to ride a bike. They are accessing the internet at ever younger ages on a multitude of devices. Children are choosing to spend more time online, browsing social media, playing games and using apps. However, we also force children to spend an increasing amount of time online for their education. A growing trend over the last decade or more, this escalated during the pandemic. Screen time at home became lesson time; it was a vital educational lifeline for many in lockdown.

Like other noble Lords, I am not against edtech, but the reality is that the necessary speed of the transition meant that insufficient regard was paid to children’s rights and the data practices of edtech. The noble Baroness, Lady Kidron, as ever, has given us a catalogue of abuses of children’s data which have already taken place in schools, so there is a degree of urgency about this, and Amendment 146 seeks to rectify the situation.

One in five UK internet users are children. Schools are assessing their work online; teachers are using online resources and recording enormous amounts of sensitive data about every pupil. Edtech companies have identified that such a large and captive population is potentially profitable. This amendment reinforces that children are also a vulnerable population and that we must safeguard their data and personal information on this basis. Their rights should not be traded in as the edtech companies chase profits.

The code of practice proposed in this amendment establishes standards for companies to follow, in line with the fundamental rights and freedoms as set out in the UN Convention on the Rights of the Child. It asserts that they are entitled to a higher degree of protection than adults in the digital realm. It would oblige the commissioner to prepare a code of practice which ensures this. It underlines that consultations with individuals and organisations who have the best interests of children at heart is vital, so that the enormous edtech companies cannot bamboozle already overstretched teachers and school leaders.

In education, data has always been processed from children in school. It is necessary for the school’s functioning and to monitor the educational development of individual children. Edtech is now becoming a permanent fixture in children’s schooling and education, but it is largely untested, unregulated and unaccountable. Currently, it is impossible to know what data is collected by edtech providers and how they are using it. This blurs the boundaries between the privacy-preserving and commercial parts of services profiting from children’s data.

Why is this important? First, education data can reveal particularly sensitive and protected characteristics about children: their ethnicity, religion, disability or health status. Such data can also be used to create algorithms that profile children and predict or assess their academic ability and performance; it could reinforce prejudice, create siloed populations or entrench low expectations. Secondly, there is a risk that data-profiling children can lead to deterministic outcomes, defining too early what subjects a child is good at, how creative they are and what they are interested in. Safeguards must be put in place in relation to the processing of children’s personal data in schools to protect those fundamental rights. Thirdly, of course, is money. Data is appreciating in value, resulting in market pressure for data to be collected, processed, shared and reused. Increasingly, such data processed from children in schools is facilitated by edtech, an already major and expanding sector with a projected value of £3.4 billion.

The growth of edtech’s use in schools is promoted by the Department for Education’s edtech strategy, which sets out a vision for edtech to be an

“inseparable thread woven throughout the processes of teaching and learning”.

Yet the strategy gives little weight to data protection beyond noting the importance of preventing data breaching. Tech giants have become the biggest companies in the world because they own data on us. Schoolchildren have little choice as to their involvement with these companies in the classroom, so we have a moral duty to ensure that they are protected, not commodified or exploited, when learning. It must be a priority for the Government to keep emerging technologies in education under regular review.

Equally important is that the ICO should invest in expertise specific to the domain of education. By regularly reviewing emerging technologies—those already in use and those proposed for use—in education, and their potential risks and impacts, such experts could provide clear and timely guidance for schools to protect individual children and entire cohorts. Amendment 146 would introduce a new code of practice on the processing and use of children’s data by edtech providers. It would also ensure that edtech met their legal obligations under the law, protected children’s data and empowered schools.

I was pleased to hear that the noble Baroness, Lady Kidron, has had constructive discussions with the Education Minister, the noble Baroness, Lady Barran. The way forward on this matter is some sort of joint work between the two departments. The noble Baroness, Lady Kidron, said that she hopes the Minister today will respond with equal positivity; he could start by supporting the principles of this amendment. Beyond that, I hope that he will agree to liaise with the Department for Education and embrace the noble Baroness’s request for more meetings to discuss this issue on a joint basis.

[Viscount Camrose (Con)]

I am grateful, as ever, to the noble Baroness, Lady Kidron, for both Amendment 146 and her continued work in championing the protection of children.

Let me start by saying that the Government strongly agree with the noble Baroness that all providers of edtech services must comply with the law when collecting and making decisions about the use of children’s data throughout the duration of their processing activities. That said, I respectfully submit that this amendment is not necessary, for the reasons I shall set out.

The ICO already has existing codes and guidance for children and has set out guidance about how the children’s code, data protection and e-privacy legislation apply to edtech providers. Although the Government recognise the value that ICO codes can have in promoting good practice and improving compliance, they do not consider that it would be appropriate to add these provisions to the Bill without further detailed consultation with the ICO and the organisations likely to be affected by them.

The guidance covers broad topics, including choosing a lawful basis for the processing; rules around information society services; targeting children with marketing; profiling children or making automated decisions about them; data sharing; children’s data rights; and exemptions relating to children’s data. Separately, as we have discussed throughout this debate, the age-appropriate design code deals specifically with the provision of online services likely to be accessed by children in the UK; this includes online edtech services. I am pleased to say that the Department for Education has begun discussions with commercial specialists to look at strengthening the contractual clauses relating to the procurement of edtech resources to ensure that they comply with the standards set out in the UK GDPR and the age-appropriate design code.

On the subject of requiring the ICO to develop a report with the edtech sector, with a view to creating a certification scheme and assessing compliance and conformity with data protection, we believe that such an approach should be at the discretion of the independent regulator.

The issues that have been raised in this very good, short debate are deeply important. Edtech is an issue that the Government are considering carefully—especially the Department for Education, given the increasing time spent online for education. I note that the DPA 2018 already contains a power for the Secretary of State to request new codes of practice, which could include one on edtech if the evidence warranted it. I would be happy to return to this in future but consider the amendment unnecessary at this time. For the reasons I have set out, I am not able to accept the amendment and hope that the noble Baroness will withdraw it.

Data Protection and Digital Information Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Wednesday 27th March 2024 Grand Committee

[Lord Kamall (Con)]

I apologise and thank the noble Lord for his collegiate approach.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have contributed to this debate. We have had a major common theme, which is that any powers exercised by the Secretary of State in Clause 14 should be to enhance, rather than diminish, the protections for a data subject affected by automated decision-making. We have heard some stark and painful examples of the way in which this can go wrong if it is not properly regulated. As noble Lords have said, this seems to be regulation on automated decision-making by the backdoor, but with none of the protections and promises that have been made on this subject.

Our Amendment 59 goes back to our earlier debate about rights at work when automated decision-making is solely or partly in operation. It provides an essential underpinning of the Secretary of State’s powers. The Minister has argued that ADM is a new development and that it would be wrong to be too explicit about the rules that should apply as it becomes more commonplace, but our amendment cuts through those concerns by putting key principles in the Bill. They are timeless principles that should apply regardless of advances in the adoption of these new technologies. They address the many concerns raised by workers and their representatives, about how they might be disfranchised or exploited by machines, and put human contact at the heart of any new processes being developed. I hope that the Minister sees the sense of this amendment, which will provide considerable reassurance for the many people who fear the impact of ADM in their working lives.

I draw attention to my Amendments 58 and 73, which implement the recommendations of the Delegated Powers and Regulatory Reform Committee. In the Bill, the new Articles 22A to 22D enable the Secretary of State to make further provisions about safeguards when automated decision-making is in place. The current wording of new Article 22D makes it clear that regulations can be amended

“by adding or varying safeguards”.

The Delegated Powers Committee quotes the department saying that

“it does not include a power to remove safeguards provided in new Article 22C and therefore cannot be exercised to weaken the protections”

afforded to data subjects. The committee is not convinced that the department is right about this, and we agree with its analysis. Surely “vary” means that the safeguards can move in either direction—to improve or reduce protection.

The committee also flags up concerns that the Bill’s amendments to Sections 49 and 50 of the Data Protection Act make specific provision about the use of automated decision-making in the context of law enforcement processing. In this new clause, there is an equivalent wording, which is that the regulations may add or vary safeguards. Again, we agree with its concerns about the application of these powers to the Secretary of State. It is not enough to say that these powers are subject to the affirmative procedure because, as we know and have discussed, the limits on effective scrutiny of secondary legislation are manifest.

We have therefore tabled Amendments 58 and 73, which make it much clearer that the safeguards cannot be reduced by the Secretary of State. The noble Lord, Lord Clement-Jones, has a number of amendments with a similar intent, which is to ensure that the Secretary of State can add new safeguards but not remove them. I hope the Minister is able to commit to taking on board the recommendations of the Delegated Powers Committee in this respect.

The noble Baroness, Lady Kidron, once again made the powerful point that the Secretary of State’s powers to amend the Data Protection Act should not be used to reduce the hard-won standards and protections for children’s data. As she says, safeguards do not constitute a right, and having regard to the issues is a poor substitute for putting those rights back into the Bill. So I hope the Minister is able to provide some reassurance that the Bill will be amended to put these hard-won rights back into the Bill, where they belong.

I am sorry that the noble Lord, Lord Holmes, is not here. His amendment raises an important point about the need to build in the views of the Information Commissioner, which is a running theme throughout the Bill. He makes the point that we need to ensure, in addition, that a proper consultation of a range of stakeholders goes into the Secretary of State’s deliberations on safeguards. We agree that full consultation should be the hallmark of the powers that the Secretary of State is seeking, and I hope the Minister can commit to taking those amendments on board.

I echo the specific concerns of the noble Lord, Lord Clement-Jones, about the impact assessment and the supposed savings from changing the rules on subject access requests. This is not specifically an issue for today’s debate but, since it has been raised, I would like to know whether he is right that the savings are estimated to be 50% and not 1%, which the Minister suggested when we last debated this. I hope the Minister can clarify this discrepancy on the record, and I look forward to his response.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

I thank the noble Lords, Lord Clement-Jones and Lord Knight, my noble friend Lord Holmes and the noble Baronesses, Lady Jones, Lady Kidron and Lady Bennett—

--- Later in debate ---

[Viscount Camrose (Con)]

Indeed. That may well be the case, but how that regulatory instruction is expressed can be done in multiple ways. Let me continue; otherwise, I will run out of time.

[Baroness Jones of Whitchurch (Lab)]

I am having a senior moment as well. Where are the outcomes written? What are we measuring this against? I like the idea; it sounds great—management terminology—but I presume that it is written somewhere and that we could easily add children’s rights to the outcomes as the noble Baroness suggests. Where are they listed?

[Lord Harlech (Con)]

My Lords, I think we should try to let the Minister make a little progress and see whether some of these questions are answered.

--- Later in debate ---

[Viscount Camrose (Con)]

I absolutely recognise the seriousness and importance of the points made by the noble Baroness. Of course, I would be happy to write to her and meet her, as I would be for any Member in the Committee, to give—I hope—more satisfactory answers on these important points.

As an initial clarification before I write, it is perhaps worth me saying that the ICO has a responsibility to keep guidance up to date but, because it is an independent regulator, it is not for the Government to prescribe this, only to allow it to do so for flexibility. As I say, I will write and set out that important point in more detail.

Amendment 59 relates to workplace rights. I reiterate that the existing data protection legislation and our proposed reforms—

[Baroness Jones of Whitchurch (Lab)]

Has the Minister moved on from our Amendments 58 and 59? He was talking about varying safeguards. I am not quite sure where he is.

[Viscount Camrose (Con)]

It is entirely my fault; when I sit down and stand up again, I lose my place.

We would always take the views of the DPRRC very seriously on that. Clearly, the Bill is being designed without the idea in mind of losing or diminishing any of those safeguards; otherwise, it would have simply said in the Bill that we could do that. I understand the concern that, by varying them, there is a risk that they would be diminished. We will continue to find a way to take into account the concerns that the noble Baroness has set out, along with the DPRRC. In the interim, let me perhaps provide some reassurance that that is, of course, not the intention.

--- Later in debate ---

I would like to believe that we all want the same thing, which is that we do not want to diminish the trust that citizens hold in public and private services that use their data. We do not want to stop that process that forces engineers to set out what they are trying to do and what the risks are. I am willing to be open-minded that there may be some improvements in the Bill—I cannot see them at the moment—but I think we have to go through that detail. As currently set out, it really looks to me that, as the noble Baroness, Lady Kidron, said, we are replacing granularity with general requirements, when it is granularity that we need. All my experience of building and running digital services is that the huge temptation as a non-technologist is to not get involved in the detail. I give everyone who is not a technologist and starts running a tech business this advice: do not be afraid of the detail, force your engineers to speak in English and get to the detail of what will change for your customers. I feel that we need to do the same with the Bill. I urge the Minister to engage with us between Committee and Report so that we are not voting on very high-end principles but are establishing the detail of what the Bill will do.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have contributed to this very wide-ranging debate. Our amendments cover a lot of common ground, and we are in broad agreement on most issues, so I hope noble Lords will bear with me if I primarily focus on the amendments that I have tabled, although I will come back to other points.

We have given notice of our intention to oppose Clause 16 standing part of the Bill which is similar to Amendment 80 tabled by the noble Lord, Lord Clement-Jones, which probes why the Government have found it necessary to remove the requirement that companies outside the UK should appoint a representative within the UK. The current GDPR rules apply to all those active in the UK market, regardless of whether their organisation is based or located in the UK. The intention is that the representative will ensure UK compliance and act as a primary source of contact for data subjects. Without this clause, data subjects will be forced to deal with overseas data handlers, with all the cultural and language barriers that might ensue. There is no doubt that this will limit their rights to apply UK data standards.

In addition, as my colleagues in the Commons identified, the removal of the provisions in Clause 16 was not included in the Government’s consultation, so stakeholders have not had the chance to register some of the many practical concerns that they feel will arise from this change. There is also little evidence that compliance with Article 27 is an unnecessary barrier to responsible data use by reputable overseas companies. Again, this was a point made by the noble Lord, Lord Clement-Jones. In fact, the international trend is for more countries to add a representative obligation to their data protection laws, so we are becoming outriders on the global stage.

Not only is this an unnecessary change but, compared to other countries, it will send a signal that our data protection rights are being eroded in the UK. Of course, this raises the spectre of the EU revisiting whether our UK adequacy status should be retained. It also has implications for the different rules that might apply north and south of the border in Ireland so, again, if we are moving away from the standard rules applied by other countries, this has wider implications that we need to consider.

For many reasons, I challenge the Government to explain why this change was felt to be necessary. The noble Lord, Lord Clement-Jones, talked about whether the cost was really a factor. It did not seem that there were huge costs, compared to the benefits of maintaining the current system, and I would like to know in more detail why the Government are doing this.

Our Amendments 81 and 90 seek to ensure that there is a definition of “high-risk processing” in the Bill. The current changes in Clauses 17 and 20 have the effect of watering down data controllers’ responsibilities, from carrying out data protection impact assessments to assessing high-risk processing on the basis of whether it was necessary and what risks are posed. But nowhere does it say what constitutes high-risk processing—it is left to individual organisations to make that judgment—and nowhere does it explain what “necessary” means in this context. Is it also expected to be proportionate, as in the existing standards? This lack of clarity has caused some consternation among stakeholders.

The Equality and Human Rights Commission argues that the proposed wording means that

“data controllers are unlikely to go beyond minimum requirements”,

so the wording needs to be more explicit. It also recommends that

“the ICO be required to provide detailed guidance on how ‘the rights and freedoms of individuals’ are to be considered in an Assessment of High Risk Processing”.

More crucially, the ICO has written to Peers, saying that the Bill should contain a list of

“activities that government and Parliament view as high-risk processing, similar to the current list set out at Article 35(3) of the UK GDPR”.

This is what our Amendments 81 and 90 aim to achieve. I hope the Minister can agree to take these points on board and come back with amendments to achieve this.

The ICO also makes the case for future-proofing the way in which high-risk processing is regulated by making a provision in the Bill for the ICO to further designate high-risk processing activities with parliamentary approval. This would go further than the current drafting of Clause 20, which contains powers for the ICO to give examples of high-risk profiling, but only for guidance. Again, I hope that the Minister can agree to take these points on board and come back with suitable amendments.

Our Amendments 99, 100 and 102 specify the need for wider factors in the proposed risk assessment list to ensure that it underpins our equality laws. Again, this was an issue about which stakeholders have raised concerns. The TUC and the Institute for the Future of Work make the point that data protection impact assessments are a crucial basis for consultation with workers and trade unions about the use of technology at work, and this is even more important as the complexities of AI come on stream. The Public Law Project argues that, without rigorous risk and impact analysis, disproportionate and discriminatory processes could be carried out before the harm comes to light.

The Equality and Human Rights Commission argues that data protection impact assessments

“provide a key mechanism for ensuring equality impacts are assessed when public and private sector organisations embed AI systems in their operations”.

It specifically recommends that express references in Article 35(7) of GDPR to “legitimate interests” and

“the rights and freedoms of data subjects”,

as well as the consultation obligations in Article 35(2), should be retained. I hope that the Minister can agree to take these recommendations on board and come back with suitable amendments to ensure that our equalities legislation is protected.

Our Amendments 106 and 108 focus on the particular responsibilities of data controllers to handle health data with specific obligations. This is an issue that we know, from previous debates, is a major cause for concern among the general public, who would be alarmed if they thought that the protections were being weakened.

The BMA has raised concerns that Clauses 20 and 21 will water down our high standards of data governance, which are necessary when organisations are handling health data. As it says,

“Removing the requirement to conduct a thorough assessment of risks posed to health data is likely to lead to a less diligent approach to data protection for individuals”.


It also argues that removing the requirement for organisations to consult the ICO on high-risk processing is,

“a backward step from good governance … when organisations are processing large quantities of sensitive health data.

Our amendments aim to address these concerns by specifying that, with regard to specific cases, such as the handling of health data, prior consultation with the ICO should remain mandatory. I hope that the Minister will see the sense in these amendments and recognise that further action is needed in this Bill to maintain public trust in how health data is managed for individual care and systemwide scientific development.

I realise that we have covered a vast range of issues, but I want to touch briefly on those raised by the noble Baroness, Lady Kidron. She is right that, in particular, applications of risk assessments by public bodies should be maintained, and we agree with her that Article 35’s privacy-by-design requirements should be retained. She once again highlighted the downgrading of children’s rights in this Bill, whether by accident or intent, and we look forward to seeing the exchange of letters with the Minister on this. I hope that we will all be copied in and that the Minister will take on board the widespread view that we should have more engagement on this before Report, because there are so many outstanding issues to be resolved. I look forward to the Minister’s response.

[Viscount Camrose (Con)]

I thank the noble Baronesses, Lady Kidron and Lady Jones, and the noble Lord, Lord Clement-Jones, for their amendments, and I look forward to receiving the letter from the noble Baroness, Lady Kidron, which I will respond to as quickly as I can. As everybody observed, this is a huge group, and it has been very difficult for everybody to do justice to all the points. I shall do my best, but these are points that go to the heart of the changes we are making. I am very happy to continue engaging on that basis, because we need plenty of time to review them—but, that said, off we go.

The changes the Government are making to the accountability obligations are intended to make the law clearer and less prescriptive. They will enable organisations to focus on areas that pose high risks to people resulting, the Government believe, in improved outcomes. The new provisions on assessments of high-risk processing are less prescriptive about the precise circumstances in which a risk assessment would be required, as we think organisations are best placed to judge whether a particular activity poses a high risk to individuals in the context of the situation.

However, the Government are still committed to high standards of data protection, and there are many similarities between our new risk assessment measures and the previous provisions. When an organisation is carrying out processing activities that are likely to pose a high risk to individuals, it will still be expected to document that processing, assess risks and identify mitigations. As before, no such document would be required where organisations are carrying out low-risk processing activities.

One of the main aims of the Bill is to remove some of the UK GDPR’s unnecessary compliance burdens. That is why organisations will be required to designate senior responsible individuals, keep records of processing and carry out the risk assessments above only when their activities pose high risks to individuals.

--- Later in debate ---

[Viscount Camrose (Con)]

That is a very interesting question, but I am not sure that there is a read-across between the AI Act and our approach here. The fundamental starting point was that, although the provisions of the original GDPR are extremely important, the burdens of compliance were not proportionate to the results. The overall foundation of the DPDI is, while at least maintaining existing levels of protection, to reduce the burdens of demonstrating or complying with that regulation. That is the thrust of it—that is what we are trying to achieve—but noble Lords will have different views about how successful we are being at either of those. It is an attempt to make it easier to be safe and to comply with the regulations of the DPDI and the other Acts that govern data protection. That is where we are coming from and the thrust of what we are trying to achieve.

I note that, as we have previously discussed, children need particular protection when organisations are collecting and processing their personal data.

[Baroness Jones of Whitchurch (Lab)]

I did not interrupt before because I thought that the Minister would say more about the difference between high-risk and low-risk processing, but he is going on to talk about children. One of my points was about the request from the Information Commissioner—it is very unusual for him to intervene. He said that a list of high-risk processing activities should be set out in the Bill. I do not know whether the Minister was going to address that important point.

[Viscount Camrose (Con)]

I will briefly address it now. Based on that letter, the Government’s view is to avoid prescription and I believe that the ICO’s view— I cannot speak for it—is generally the same, except for a few examples where prescription needs to be specified in the Bill. I will continue to engage with the ICO on where exactly to draw that line.

--- Later in debate ---

[Viscount Camrose (Con)]

No, I do not accept that at all. I would suggest that we are saying to businesses, “You must provide access to the ICO and data subjects in a way that is usable by all parties, but you must do so in the manner that makes the most sense to you”. That is a good example of going after outcomes but not insisting on any particular process or methodology in a one-size-fits-all way.

[Baroness Jones of Whitchurch (Lab)]

The Minister mentioned the freedom to choose the best solution. Would it be possible for someone to be told that their contact was someone who spoke a different language to them? Do they have to be able to communicate properly with the data subjects in this country?

[Viscount Camrose (Con)]

Yes—if the person they were supposed to communicate with did not speak English or was not available during reasonable hours, that would be in violation of the requirement.

I apologise if we briefly revisit some of our earlier discussion here, but Amendment 81 would reintroduce a list of high-risk processing activities drawn from Article 35 of the UK GDPR, with a view to helping data controllers comply with the new requirements around designating a senior responsible individual.

The Government have consulted closely with the ICO throughout the development of all the provisions in the Bill, and we welcome its feedback as it upholds data subjects’ rights. We recognise and respect that the ICO’s view on this issue is different to the Government’s, but the Government feel that adding a prescriptive list to the legislation would not be appropriate for the reasons we have discussed. However, as I say, we will continue to engage with it over the course of the passage of the Bill.

Some of the language in Article 35 of the UK GDPR is unclear and confusing, which is partly why we removed it in the first place. We believe organisations should have the ability to make a judgment of risk based on the specific nature, scale and context of their own processing activities. We do not need to provide prescriptive examples of high-risk processing on the face of legislation because any list could quickly become out of date. Instead, to help data controllers, Clause 20 requires the ICO to produce a document with examples of what the commissioner considers to be high-risk processing activities.

I turn to Clause 17 and Amendment 82. The changes we are making in the Bill will reduce prescription by removing the requirement to appoint a data protection officer in certain circumstances. Instead, public bodies and other organisations carrying out high-risk processing activities will have to designate a senior responsible individual to ensure that data protection risks are managed effectively within their organisations. That person will have flexibility about how they manage data protection risks. They might decide to delegate tasks to independent data protection experts or upskill existing staff members, but they will not be forced to appoint data protection officers if suitable alternatives are available.

The primary rationale for moving to a senior responsible individual model is to embed data protection at the heart of an organisation by ensuring that someone in senior management takes responsibility and accountability for it if the organisation is a public body or is carrying out high-risk processing. If organisations have already appointed data protection officers and want to keep an independent expert to advise them, they will be free to do so, providing that they also designate a senior manager to take overall accountability and provide sufficient support, including resources.

Amendment 83, tabled by the noble Baroness, Lady Kidron, would require the senior responsible individual to specifically consider the risks to children when advising the controller on its responsibilities. As drafted, Clause 17 of the Bill requires the senior responsible individual to perform a number of tasks or, if they cannot do so themselves, to make sure that they are performed by another person. They include monitoring the controller’s compliance with the legislation, advising the controller of its obligations and organising relevant training for employees who carry out the processing of personal data. Where the organisation is processing children’s data, all these requirements will be relevant. The senior responsible individual will need to make sure that any guidance and training reflects the type of data being processed and any specific obligations the controller has in respect of that data. I hope that this goes some way to convincing the noble Baroness not to press her amendment.

--- Later in debate ---

Amendments 85 and 86, put forward by the noble Baroness, Lady Kidron, would require any records kept by controllers to take account of the fact that a higher standard of protection is needed for children than adults. However, the clause already requires organisations to consider the context and nature of the processing and the likely risks arising to people of all ages when determining whether the record-keeping provisions apply. The ICO will be required to publish a document with a list of examples that it considers to be high-risk processing activities and we—

[Baroness Jones of Whitchurch (Lab)]

The Minister has reached his 20 minutes. We nudged him at 15 minutes.

[Viscount Camrose (Con)]

Do I have to shut up?

--- Later in debate ---

[Lord Clement-Jones (LD)]

Yes. We will not stand on ceremony.

[Baroness Jones of Whitchurch (Lab)]

As long as that applies to us on occasion as well.

[Viscount Camrose (Con)]

I apologise for going over. I will try to be as quick as possible.

I turn now to the amendments on the new provisions on assessments of high-risk processing in Clause 20. Amendments 87, 88, 89, 91, 92, 93, 94, 95, 97, 98 and 101 seek to reinstate requirements in new Article 35 of the UK GDPR on data protection impact assessments, and, in some areas, make them even more onerous for public authorities. Amendment 90 seeks to reintroduce a list of high-risk processing activities drawn from new Article 35, with a view to help data controllers comply with the new requirements on carrying out assessments of high-risk processing.

Amendment 96, tabled by the noble Baroness, Lady Kidron, seeks to amend Clause 20, so that, where an internet service is likely to be accessed by children, the processing is automatically classed as high risk and the controller must do a children’s data protection impact assessment. Of course, I fully understand why the noble Baroness would like those measures to apply automatically to organisations processing children’s data, and particularly to internet services likely to be accessed by children. It is highly likely that many of the internet services that she is most concerned about will be undertaking high-risk activities, and they would therefore need to undertake a risk assessment.

Under the current provisions in Clause 20, organisations will still have to undertake risk assessments where their processing activities are likely to pose high risks to individuals, but they should have the ability to assess the level of risk based on the specific nature, scale and context of their own processing activities. Data controllers do not need to be directed by government or Parliament about every processing activity that will likely require a risk assessment, but the amendments would reintroduce a level of prescriptiveness that we were seeking to remove.

Clause 20 requires the ICO to publish a list of examples of the types of processing activities that it considers would pose high risks for the purposes of these provisions, which will help controllers to determine whether a risk assessment is needed. This will provide organisations with more contemporary and practical help than a fixed list of examples in primary legislation could. The ICO will be required to publish a document with a list of examples that it considers to be high-risk processing activities, and we fully expect the vulnerability age of data subjects to be a feature of that. The commissioner’s current guidance on data protection impact assessments already describes the use of the personal data of children or other vulnerable individuals for marketing purposes, profiling or offering internet services directly to children as examples of high-risk processing, although the Government cannot of course tell the ICO what to include in its new guidance.

Similarly, in relation to Amendments 99, 100 and 102 from the noble Baroness, Lady Jones, it should not be necessary for this clause to specifically require organisations to consider risks associated with automated decision-making or obligations under equalities legislation. That is because the existing clause already requires controllers to consider any risks to individuals and to describe

“how the controller proposes to mitigate those risks”.

I am being asked to wrap up and so, in the interests of time, I shall write with my remaining comments. I have no doubt that noble Lords are sick of the sound of my voice by now.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, given the hour, I will be brief. That was an absolute tour de force by the noble Baroness. As with all the Minister’s speeches, I will read her speech over Easter.

I was very interested to be reminded of the history of Napster, because that was when many of us realised that we were, in many ways, entering the digital age in the creative industries and beyond. The amendments that the noble Baroness put forward are examples of where the Bill could make a positive impact, unlike the impact that so much of the rest of it is making in watering down rights. She described cogently how large language models are ingesting or scraping data from the internet, social media and journalism, how very close to the ingestion of copyright material this whole agenda is and how it is being done by anonymous bots in particular. It fits very well with the debate in which the Minister was involved last Friday on the Private Member’s Bill of the noble Lord, Lord Holmes, who inserted a clause requiring transparency on the ingestion or scraping of data and copyright material by large language models. It is very interesting.

The opportunity in the data area is currently much greater than it is in the intellectual property area. At least we have the ICO, which is a regulator, unlike the IPO, which is not really a regulator with teeth. I am very interested in the fact that the ICO is conducting a consultation on generative AI and data protection, which it launched in January. Conterminously with this Bill, perhaps the ICO might come to some conclusions that we can use. That would of course include the whole area of biometrics, which, in the light of things such as deepfakes and so on, is increasingly an issue of great concern. The watchword is “transparency”: we must impose a duty on the generative AI models about the use of the material that they use to train their models and then use in operation. I fully support Amendments 103 and 104 in the name of the noble Baroness, even though, as she describes them, they are a small step.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I, too, will be relatively brief. I thank the noble Baroness, Lady Kidron, for her amendments, to which I was very pleased to add my name. She raised an important point about the practice of web scrapers, who take data from a variety of sources to construct large language models without the knowledge or permission of web owners and data subjects. This is a huge issue that should have been a much more central focus of the Bill. Like the noble Baroness, I am sorry that the Government did not see fit to use the Bill to bring in some controls on this increasingly prevalent practice, because that would have been a more constructive use of our time than debating the many unnecessary changes that we have been debating so far.

As the noble Baroness said, large language models are built on capturing text, data and images from infinite sources without the permission of the original creator of the material. As she also said, it is making a mockery of our existing data rights. It raises issues around copyright and intellectual property, and around personal information that is provided for one purpose and commandeered by web scrapers for another. That process often happens in the shadows, whereby the owner of the information finds out only much later that their content has been repurposed.

What is worse is that the application of AI means that material provided in good faith can be distorted or corrupted by the bots scraping the internet. The current generation of LLMs are notorious for hallucinations in which good quality research or journalistic copy is misrepresented or misquoted in its new incarnation. There are also numerous examples of bias creeping into the LLM output, which includes personal data. As the noble Baroness rightly said, the casual scraping of children’s images and data is undermining the very essence of our existing data protection legislation.

It is welcome that the Information Commissioner has intervened on this. He argued that LLMs should be compliant with the Data Protection Act and should evidence how they are complying with their legal obligations. This includes individuals being able to exercise their information rights. Currently, we are a long way from that being a reality and a practice. This is about enforcement as much as giving guidance.

I am pleased that the noble Baroness tabled these amendments. They raise important issues about individuals giving prior permission for their data to be used unless there is an easily accessible opt-out mechanism. I would like to know what the Minister thinks about all this. Does he think that the current legislation is sufficient to regulate the rise of LLMs? If it is not, what are the Government doing to address the increasingly widespread concerns about the legitimacy of web scraping? Have the Government considered using the Bill to introduce additional powers to protect against the misuse of personal and creative output?

In the meantime, does the Minister accept the amendments in the name of the noble Baroness, Lady Kidron? As we have said, they are only a small part of a much bigger problem, but they are a helpful initiative to build in some basic protections in the use of personal data. This is a real challenge to the Government to step up to the mark and be seen to address these important issues. I hope the Minister will say that he is happy to work with the noble Baroness and others to take these issues forward. We would be doing a good service to data citizens around the country if we did so.

[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for tabling these amendments. I absolutely recognise their intent. I understand that they are motivated by a concern about invisible types of processing or repurposing of data when it may not be clear to people how their data is being used or how they can exercise their rights in respect of the data.

On the specific points raised by noble Lords about intellectual property rather than personal data, I note that, in their response to the AI White Paper consultation, the Government committed soon to provide a public update on their approach to AI and intellectual property, noting the importance of greater transparency in the use of copyrighted material to train models, as well as labelling and attribution of outputs.

Amendment 103 would amend the risk-assessment provisions in Clause 20 so that any assessment of high-risk processing would always include an assessment of how the data controller would comply with the purpose limitation principle and how any new processing activity would be designed so that people could exercise their rights in respect of the data at the time it was collected and at any subsequent occasion.

I respectfully submit that this amendment is not necessary. The existing provisions in Clause 20, on risk assessments, already require controllers to assess the potential risks their processing activities pose to individuals and to describe how those risks would be mitigated. This would clearly include any risk that the proposed processing activities would not comply with the data protection principles—for example, because they lacked transparency—and would make it impossible for people to exercise their rights.

Similarly, any assessment of risk would need to take account of any risks related to difficulties in complying with the purpose limitation principle—for example, if the organisation had no way of limiting who the data would be shared with as a result of the proposed processing activity.

According to draft ICO guidance on generative AI, the legitimate interests lawful ground under Article 6(1)(f) of the UK GDPR can be a valid lawful ground for training generative AI models on web-scrape data, but only when the model’s developer can ensure that they pass the three-part test—that is, they identify a legitimate interest, demonstrate that the processing is necessary for that purpose and demonstrate that the individual’s interests do not override the interest being pursued by the controller.

Controllers must consider the balancing test particularly carefully when they do not or cannot exercise meaningful control over the use of the model. The draft guidance further notes that it would be very difficult for data controllers to carry out their processing activities in reliance on the legitimate interests lawful ground if those considerations were not taken into account.

Data Protection and Digital Information Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Monday 25th March 2024 Grand Committee

[Baroness Harding of Winscombe (Con)]

My Lords, I support the noble Baroness, Lady Kidron, in Amendments 13 and 15, to which I have added my name. Rather than repeat her arguments—as we are now all trying not to do—I want to build on them and point to the debate we had on the first group in Committee, when my noble friend the Minister insisted that the Government had no desire to water down the protections for children in the Bill. In Clause 5, in proposed new paragraph (7) of Article 6, the Government have felt it necessary to be explicit, in that paragraph only, that children might need extra protection. This, on its own, makes me worried that the whole Bill is reducing the protection children have, because the Government felt it necessary to insert new paragraph (7)(b). Interestingly, it refers to,

“where relevant, the need to provide children”

with additional support. But where is that not relevant?

Amendment 13 simply looks to strengthen this—to accept the premise on which the Bill is currently drafted that we need to be explicit where children deserve the right to a higher level of protection, and to get the wording right. Will my noble friend the Minister reconsider? There are two choices here: to state right at the beginning of the Bill that there is a principle that there will be no reduction in children’s right to a higher level of protection, or to do as the Bill currently does and make sure that we get the wording right at every stage as we work through.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank noble Lords who have spoken to this group. As ever, I am grateful to the Delegated Powers and Regulatory Reform Committee for the care it has taken in scrutinising the Bill. In its 10th report it made a number of recommendations addressing the Henry VIII powers in the Bill, which are reflected in a number of amendments that we have tabled.

In this group, we have Amendment 12 to Clause 5, which addresses the committee’s concerns about the new powers for the Secretary of State to amend new Annexe 1 of Article 6. This sets out the grounds for treating data processing as a recognised legitimate interest. This issue was raised by the noble Lord, Lord Clement-Jones, in his introduction. The Government argue that they are starting with a limited number of grounds and that the list might need to be changed swiftly, hence the need for the Secretary of State’s power to make changes by affirmative regulations.

However, the Delegated Powers and Regulatory Reform Committee argues:

“The grounds for lawful processing of personal data go to the heart of the data protection legislation, and therefore in our view should not be capable of being changed by subordinate legislation”.


It also argues that the Government have not provided strong reasons for needing this power. It recommends that the delegated power in Clause 5(4) should be removed from the Bill, which is what our Amendment 12 seeks to do.

These concerns were echoed by the Constitution Committee, which went one stage further by arguing:

“Data protection is a matter of great importance in maintaining a relationship of trust between the state and the individual”.


It is important to maintain these fundamental individual rights. On that basis, the Constitution Committee asks us to consider whether the breadth of the Secretary of State’s powers in Clauses 5 and 6 is such that those powers should be subject to primary rather than secondary legislation.

I make this point about the seriousness of these issues as they underline the points made by other noble Lords in their amendments in this group. In particular, the noble Lord, Lord Clement-Jones, asked whether any regulations made by the Secretary of State should be the subject of the super-affirmative procedure. We will be interested to hear the Minister’s response, given the concerns raised by the Constitution Committee.

Will the Minister also explain why it was necessary to remove the balancing test, which would require organisations to show why their interest in processing data outweighs the rights of data subjects? Again, this point was made by the noble Lord, Lord Clement-Jones. It would also be helpful if the Minister could clarify whether the new powers for the Secretary of State to amend the recognised legitimate interest could have consequences for data adequacy and whether this has been checked and tested with the EU.

Finally, we also welcome a number of other amendments tabled by the noble Lord, Lord Clement-Jones, in particular those to ensure that direct marketing should be considered a legitimate interest only if there is proper consent. This was one of the themes of the noble Baroness, Lady Kidron, who made, as ever, a very powerful case for ensuring that children specifically should not be subject to direct market as routine and that there should be clear consent.

The noble Baronesses, Lady Kidron and Lady Harding, have once again, quite rightly, brought us back to the Bill needing to state explicitly that children’s rights are not being watered down by it, otherwise we will come back to this again and again in all the clauses. The noble Baroness, Lady Kidron, said that this will be decided on the Floor of the House, or the Minister could give in now and come back with some government amendments. I heartily recommend to the Minister that he considers doing that because it might save us some time. I look forward to the Minister’s response on that and on the Delegated Powers and Regulatory Reform Committee’s recommendations about removing the Secretary of State’s right to amend the legitimate interest test.

--- Later in debate ---

On the point made about EU data adequacy, across all reforms in the Bill, the Government maintain an ongoing dialogue with the EU and have a positive, constructive relationship with it. We continue to engage regularly with the EU to ensure that our reforms are understood, and we believe that they are compatible with maintaining our data adequacy decisions. For all these reasons, I hope that noble Lords will agree not to press their amendments.

[Baroness Jones of Whitchurch (Lab)]

My Lords, may I just revisit that with the Minister? I fear that he is going to move on to another subject. The Delegated Powers Committee said that it thought that the Government had not provided strong enough reasons for needing this power. The public interest list being proposed, which the Minister outlined, is quite broad, so it is hard to imagine the Government wanting something not already listed. I therefore return to what the committee said. Normally, noble Lords like to listen to recommendations from such committees. There is no strong reason for needing that extra power, so, to push back a little on the Minister, why, specifically, is it felt necessary? If it were a public safety interest, or one of the other examples he gave, it seems to me that that would come under the existing list of public interests.

[Viscount Camrose (Con)]

Indeed. Needless to say, we take the recommendations of the DPRRC very seriously, as they deserve. However, because this is an exhaustive list, and because the technologies and practices around data are likely to evolve very rapidly in ways we are unable currently to predict, it is important to retain as a safety measure the ability to update that list. That is the position the Government are coming from. We will obviously continue to consider the DPRRC’s recommendations, but that has to come with a certain amount of adaptiveness as we go. Any addition to the list would of course be subject to parliamentary debate, via the affirmative resolution procedure, as well as the safeguards listed in the provision itself.

Clause 50 ensures that the ICO and any other interested persons should be consulted before making regulations.

Amendments 15, 16, 17 and 18 would amend the part of Clause 5 that is concerned with the types of activities that might be carried out under the current legitimate interest lawful ground, under Article 6(1)(f). Amendment 15 would prevent direct marketing organisations relying on the legitimate interest lawful ground under Article 6(1)(f) if the personal data being processed related to children. However, the age and vulnerability in general of data subjects is already an important factor for direct marketing organisations when considering whether the processing is justified. The ICO already provides specific guidance for controllers carrying out this balancing test in relation to children’s data. The fact that a data subject is a child, and the age of the child in question, will still be relevant factors to take into account in this process. For these reasons, the Government consider this amendment unnecessary.

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

19: Schedule 1, page 192, line 21, leave out from beginning to end of line 6 on page 197
Member’s explanatory statement
This amendment is consequential on an amendment in the name of Baroness Jones of Whitchurch to leave out Clause 114. These Schedule 1 provisions would become redundant if Clause 114 is removed from the Bill.

[Baroness Jones of Whitchurch (Lab)]

My Lords, Amendment 19 is consequential on my more substantive Clauses 114 and 115 stand part notices, which are also in this group. I am grateful to the noble Lord, Lord Clement-Jones, for his support.

These amendments all relate to the 150 or so pages of late amendments tabled in the Commons on Report and therefore not given adequate scrutiny before now. No real explanation has been given for why the Government felt it necessary to table the amendments in this way, and this group of amendments comes under the heading of so-called “democratic engagement”. Clause 113 extends a soft opt-in for direct mail marketing for furthering charitable or political objectives, while Clause 114 goes further and allows the Secretary of State to change the direct marketing rules through secondary legislation for the purpose of democratic engagement. This would allow the Government, in the run-up to an election, to switch off the direct mailing rules that apply to political parties.

Like many others, we are highly suspicious of the Government’s motives in introducing these amendments in the run-up to this election. Although we do not have a problem with a softer opt-in for direct mailing for charities, the application of Clause 114 to political parties gives politicians carte blanche to mine voters’ data given in good faith for completely different purposes. It would allow voters to be bombarded with calls, texts and personalised social media without their explicit consent.

When you consider these proposals in the context of other recent moves by the Government to make it harder for some people to vote and to vastly increase the amount of money that can be spent on campaigning in the run-up to an election, you have to wonder what the Government are up to, because these measures have certainly not been requested by Labour. In fact, these measures were not supported by the majority of respondents to the Government’s initial consultation, who wanted the existing rules upheld.

The Advertising Association has told us that it is concerned that switching off the rules could result in an increase in poor practice, such as political lobbying under the guise of research. This is apparently a practice known as “plugging”. It referred us to a report from the previous Information Commissioner on how political parties manage data protection, which provided key recommendations for how political parties could improve. These included providing clearer information about how data will be used and being more transparent about how voters are profiled and targeted via social media platforms. This is the direction our democratic engagement should be going in, with stronger and more honest rules that treat the electorate with respect, not watering down the rules that already exist.

When these proposals were challenged in the Commons on Report, the Minister, John Whittingdale, said:

“We have no immediate plans to use the regulation powers”.—[Official Report, Commons, 29/11/23; col. 912.]


If that is the case, why do the Government not take the proposals off the table, go back to the drawing board by conducting a proper consultation and test whether there is any appetite for these changes? They should also involve the Information Commissioner at an early stage, as he has already gone on record to say that this is

“an area in which there are significant potential risks to people if any future policy is not implemented very carefully”.

Finally, if there are to be any changes, they should be subject to full parliamentary scrutiny and approval.

We believe that Clauses 114 and 115 are taking us in fundamentally the wrong direction, against the interests of the electorate. I look forward to the Minister’s response, but I give notice now that, unless the Government adopt a very different strategy on this issue, we will return to this on Report. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I follow the noble Baroness, Lady Jones of Whitchurch, with pleasure, as I agree with everything that she just said. I apologise for having failed to notice this in time to attach my name; I certainly would have done, if I had had the chance.

As the noble Baroness said, we are in an area of great concern for the level of democracy that we already have in our country. Downgrading it further is the last thing that we should be looking at doing. Last week, I was in the Chamber looking at the statutory instrument that saw a massive increase in the spending limits for the London mayoral and assembly elections and other mayoral elections—six weeks before they are held. This is a chance to spend an enormous amount of money; in reality, it is the chance for one party that has the money from donations from interesting and dubious sources, such as the £10 million, to bombard voters in clearly deeply dubious and concerning ways.

We see a great deal of concern about issues such as deepfakes, what might happen in the next general election, malicious actors and foreign actors potentially interfering in our elections. We have to make sure, however, that the main actors conduct elections fairly on the ground. As the noble Baroness, Lady Jones, just set out, this potentially drives a cart and horses through that. As she said, these clauses did not get proper scrutiny in the Commons—as much as that ever happens. As I understand it, there is the potential for us to remove them entirely later, but I should like to ask the Minister some direct questions, to understand what the Government’s intentions are and how they understand the meaning of the clauses.

Perhaps no one would have any problems with these clauses if they were for campaigns to encourage people to register to vote, given that we do not have automatic voter registration, as so many other countries do. Would that be covered by these clauses? If someone were conducting a “get out the vote” campaign in a non-partisan way, simply saying, “Please go out and vote. The election is on this day. You will need to bring along your voter ID”, would it be covered by these clauses? What about an NGO campaigning to stop a proposed new nuclear power station, or a group campaigning for stronger regulations on pesticides or for the Government to take stronger action against ultra-processed food? How do those kinds of politics fit with Clauses 114 and 115? As they are currently written, I am not sure that it is clear what is covered.

There is cause for deep concern, because no justification has been made for these two clauses. I look forward to hearing the Minister’s responses.

--- Later in debate ---

[Viscount Camrose (Con)]

I would of course be very happy to continue to engage with the Electoral Commission.

We will continue to work with the ICO to make sure that it is familiar with the plans for commencement and that its plans for guidance fit into that. In parts of the UK where the voting age is 18 and the age of attainment is 16, it would be more difficult for candidates and parties to show that it was necessary or proportionate to process the personal data of 14 and 15 year-olds in reliance on the new lawful ground. In this context, creating an arbitrary distinction between children at or approaching voting age and adults may not be appropriate; in particular, many teenagers approaching voting age may be more politically engaged than some adults. These measures will give parties and candidates a clear lawful ground for engaging them in the process. Accepting this amendment would remove the benefits of greater ease of identification of a lawful ground for processing by elected representatives, candidates and registered political parties, which is designed to improve engagement with the electorate. I therefore hope that the noble Baroness, Lady Jones, will withdraw her amendment.

I now come to the clause stand part notice that would remove Clause 114, which gives the Secretary of State a power to make exceptions to the direct marketing rules for communications sent for the purposes of democratic engagement. As Clause 115 defines terms for the purposes of Clause 114, the noble Baroness, Lady Jones, is also seeking for that clause to be removed. Under the current law, many of the rules applying to electronic communications sent for commercial marketing apply to messages sent by registered political parties, elected representatives and others for the purposes of democratic engagement. It is conceivable that, after considering the risks and benefits, a future Government might want to treat communications sent for the purposes of democratic engagement differently from commercial marketing. For example, in areas where voter turnout is particularly low or there is a need to increase engagement with the electoral process, a future Government might decide that the direct marketing rules should be modified. This clause stand part notice would remove that option.

We have incorporated several safeguards that must be met prior to regulations being laid under this clause. They include the Secretary of State having specific regard to the effect the exceptions could have on an individual’s privacy; a requirement to consult the Information Commissioner and other interested parties, as the Secretary of State considers appropriate; and the regulations being subject to parliamentary approval via the affirmative procedure.

For these reasons, I hope that the noble Baroness will agree to withdraw or not press her amendments.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am pleased that I have sparked such a lively debate. When I tabled these amendments, it was only me and the noble Lord, Lord Clement-Jones, so I thought, “This could be a bit sad, really”, but it has not been. Actually, it has been an excellent debate and we have identified some really good issues.

As a number of noble Lords said, the expression “democratic engagement” is weasel words: what is not to like about democratic engagement? We all like it. Only when you drill down into the proposals do you realise the traps that could befall us. As noble Lords and the noble Baroness, Lady Bennett, rightly said, we have to see this in the context of some of the other moves the Government are pursuing in trying to skew the electoral rules in their favour. I am not convinced that this is as saintly as the Government are trying to pretend.

The noble Baroness, Lady Harding, is absolutely right: this is about trust. It is about us setting an example. Of all the things we can do on data protection that we have control over, we could at least show the electorate how things could be done, so that they realise that we, as politicians, understand how precious their data is and that we do not want to misuse it.

I hope we have all knocked on doors, and I must say that I have never had a problem engaging with the electorate, and actually they have never had a problem engaging with us. This is not filling a gap that anybody has identified. We are all out there and finding ways of communicating that, by and large, I would say the electorate finds perfectly acceptable. People talk to us, and they get the briefings through the door. That is what they expect an election campaign to be about. They do not expect, as the noble Baroness, Lady Harding, said, to go to see their MP about one thing and then suddenly find that they are being sent information about something completely different or that assumptions are being made about them which were never the intention when they gave the information in the first place. I just feel that there is something slightly seedy about all this. I am sorry that the Minister did not pick up a little more on our concerns about all this.

There are some practical things that I think it was helpful for us to have talked about, such as the Electoral Commission. I do not think that it has been involved up to now. I would like to know in more detail what its views are on all this. It is also important that we come back to the Information Commissioner and check in more detail what his view is on all this. It would be nice to have guidance, but I do not think that that will be enough to satisfy us in terms of how we proceed with these amendments.

The Minister ultimately has not explained why this has been introduced at this late stage. He is talking about this as though conceivably, in the future, a Government might want to adopt these rules. If that is the case, I respectfully say that we should come back at that time with a proper set of proposals that go right through the democratic process that we have here in Parliament, scrutinise it properly and make a decision then, rather than being bounced into something at a very late stage.

I have to say that I am deeply unhappy at what the Minister has said. I will obviously look at Hansard, but I may well want to return to this.

Amendment 19 withdrawn.

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

24: Clause 9, page 17, leave out line 33
Member’s explanatory statement
This amendment would mean that the resources available to the controller could not be taken into account when determining whether a request by a data subject is vexatious or excessive.

[Baroness Jones of Whitchurch (Lab)]

My Lords, in moving Amendment 24, I will speak also to Amendment 26. I welcome the amendments in the name of the noble Lord, Lord Clement-Jones.

Together, these amendments go to the heart of questioning why the Government have found it necessary to change the grounds for the refusal of a subject access request from “manifestly unfounded” to “vexatious or excessive”. At the moment, Article 15 of the UK GDPR gives data subjects a right of access to find out what personal information an organisation hold on them, how it is using it and whether it is sharing it. This right of access is key to transparency and often underpins people’s ability to exercise other data rights and human rights; for example, it impacts on an individual’s right to privacy in Article 8 of the ECHR and their right to non-discrimination in Article 40 of the same.

The Equality and Human Rights Commission has raised specific concerns about these proposals, arguing that subject access requests

“are a vital mechanism for data subjects to exercise their fundamental rights to privacy and freedom from discrimination”.

It argues that these rights will be even more vital as AI systems are rolled out, using personal information

“in ways that may be less than transparent to data subjects”.

So we must be suspicious as to why these changes are being made and whether they are likely to reduce the legitimate opportunities for data subjects to access their personal information.

This comes back to the mantra of the noble Lord, Lord Clement-Jones, regarding a number of the clauses we have dealt with and, I am sure, ones we have yet to deal with: why are these changes necessary? That is the question we pose as well. Is it simply to give greater clarity, as the Minister in the Commons claimed; or is it to lighten the burden on business—the so-called Brexit dividend—which would result in fewer applications being processed by data controllers? Perhaps the Minister could clarify whether data subject rights will be weakened by these changes.

In the Commons, the Minister, John Whittingdale, also argued that some data search requests are dispro-portionate when the information is of low importance or low relevance to the data subject. However, who has the right to make that decision? How is a data controller in a position to judge how important the information is to an individual? Can the Minister clarify whether the data controller would have the right to ask the data subject their reasons for requesting the information? This is not permitted under the current regime.

A number of stakeholders have argued that the new wording is too subjective and is open to abuse by data controllers who find responding to such requests, by their very nature, vexatious or excessive. For a busy data operator, any extra work could be seen as excessive. Although the Information Commissioner has said that he is clear how these words should be applied, he has also said that they are open to numerous interpretations. Therefore, there is a rather urgent need for the Information Commissioner to provide clear statutory guidance on the application of the terms, so that only truly disruptive requests can be rejected. Perhaps the Minister can clarify whether this is the intention.

In the meantime, our Amendment 24 aims to remove the easy get-out clause for refusing a request by making it clear that the resources available to the controller should not, by itself, be a reason for rejecting an application for information. There is an inevitable cost involved in processing requests, and we need to ensure that it does not become the standard excuse for denying data subjects their rights. Our Amendment 26 would require the data controller to produce evidence of why a request is considered vexatious or excessive if it is being denied. It should not be possible to assert this as a reason without providing the data subject with a clear and justifiable explanation. Amendment 25, from the noble Lord, Lord Clement-Jones, has a similar intent.

We remain concerned about the changes and the impact they will have on established data and human rights. As a number of stakeholders have argued, access to personal data and its uses underpins so many other rights that can be enforced by law. We should not give these rights away easily or without proper justification. I look forward to hearing what the Minister has to say, but without further clarification in the Bill, I doubt whether our concerns will be assuaged. I beg to move.

[Lord Sikka (Lab)]

My Lords, I will say a little bit about my intention to delete this clause altogether. Clause 9 significantly changes the data and privacy landscape, and for the worse. The Constitution Committee’s report on the Bill, published on 25 January, noted:

“Clause 9 amends Article 12 of the UK GDPR to broaden the basis for refusal”—


not for enhancing, but for refusal—

“of a data access request by providing more leeway to ‘data controllers’”.

In the world we live in, there is a huge imbalance of power between corporations, governments, public bodies and individuals. People must have a right to know what information is held about them, and how and when it is used. It is vital in order to check abuses and hold powerful elites to account.

The request for information can, at the moment, be wholly or partly denied, depending on the circumstances. It can be refused if it is considered to be manifestly unfounded or manifestly excessive. These phrases, “manifestly unfounded” and “manifestly excessive”, are fairly well understood. There is already a lot of case law on that. Clause 9, however, lowers the threshold for refusing information from “manifestly unfounded or excessive” to “vexatious or excessive”.

--- Later in debate ---

[Lord Clement-Jones (LD)]

It would be very useful to have the Minister respond on that but, of course, as far as the impact assessment is concerned, a lot of this depends on the Government’s own estimates of what this Bill will produce—some of which are somewhat optimistic.

[Baroness Jones of Whitchurch (Lab)]

My Lords, can we join in with the request to see that information in a letter? We would like to see where these savings will be made and how much will, as noble Lords have said, be affected by the clauses that we are debating today.

[Lord Clement-Jones (LD)]

The noble Baroness, Lady Jones, has given me an idea: if an impact assessment has been made, clause by clause, it would be extremely interesting to know just where the Government believe the golden goose is.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

I thank all noble Lords who have spoken in this debate. I am grateful to my noble friend Lord Sikka for rightly sharing the Constitution Committee’s concerns that, on the face of it, it looks like this is broadening the basis for refusal of data requests. He made an important point about the costs needing to be balanced against the social costs of refusing requests and the social impact that there may be, particularly if it is to do with employment or access to public services.

At the heart of this is that we need to ensure that data controllers are not making subjective judgments about whether a request is reasonable. The Minister says that the Information Commissioner will produce guidance. This is important, as that guidance will be absolutely crucial to making a judgment about whether we think this new regime will be credible. The Minister introduced a new phrase: that the intention is to support “well-intended” requests. Well, then we need to start defining “well intended”. I think we will chase these phrases round and round before we get some proper clarification; it would have helped if it had been in the Bill.

We have also gone round and round a bit on whether the changes in the wording weaken the rights of data subjects and whether they save money. The Minister talked about the 1% saving. I am fascinated by that because it does not seem very much; if it is not very much, why are we doing it? We come back to all of this again. I do not quite know what we are hoping to achieve here.

I will need to look at what the Minister said but we need a lot more clarification on this to be reassured that data subjects will not be refused more and more access to the information they want. I was disappointed to hear the Minister say that the controller can consider resources because that seems to me to be the ultimate get-out clause: if a controller can say that they cannot afford to do the data search, does not that mean that individual rights can be ignored just on that basis? That seems too easy; if somebody does not want to do the piece of work, that is an obvious get-out clause, so I remain concerned about the Minister’s response to that amendment as well.

We have explored a lot of this in a lot of different ways and we have had a good debate. I will look again at Hansard but, for the moment, I beg leave to withdraw my amendment.

Amendment 24 withdrawn.

--- Later in debate ---

[Baroness Stowell of Beeston (Con)]

My Lords, I rise briefly to support the amendments in the name of my noble friend Lady Harding and the others in this group. She has comprehensively explained their importance; they may not be philosophical, as she says, but they have practical importance. One of the most compelling reasons for us to act is as she so precisely described: if we do not, we create a situation in the real world that the Bill seeks to address in the digital world.

Although this is about direct marketing, allied to it are pressures on advertising revenues and the greater control that is being taken by the larger platforms in this area all the time. The effect that has on revenues means that this is an important issue that deserves a proper response from the Government. I hope that my noble friend the Minister acts in the way that we want by, if not accepting one of these amendments, coming forward with something from the Government.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I can also be relatively brief. I thank all noble Lords who have spoken and the noble Baroness, Lady Harding, and the noble Lord, Lord Clement-Jones, for their amendments, to many of which I have added my name.

At the heart of this debate is what constitutes a disproportionate or impossibility exemption for providing data to individuals when the data is not collected directly from data subjects. Amendments 29 to 33 provide further clarity on how exemptions on the grounds of disproportionate effort should be interpreted —for example, by taking into account whether there would be a limited impact on individuals, whether they would be caused any distress, what the exemptions were in the first place and whether the information had been made publicly available by a public body. All these provide some helpful context, which I hope the Minister will take on board.

I have also added my name to Amendments 27 and 28 from the noble Baroness, Lady Harding. They address the particular concerns about those using the open electoral register for direct marketing purposes. As the noble Baroness explained, the need for this amendment arises from the legal ruling that companies using the OER must first notify individuals at their postal addresses whenever their data is being used. As has been said, given that individuals already have an opt-out when they register on the electoral roll, it would seem unnecessary and impractical for companies using the register to follow up with individuals each time they want to access their data. These amendments seek to close that loophole and return the arrangements back to the previous incarnation, which seemed to work well.

All the amendments provide useful forms of words but, as the noble Baroness, Lady Harding, said, if the wording is not quite right, we hope that the Minister will help us to craft something that is right and that solves the problem. I hope that he agrees that there is a useful job of work to be done on this and that he provides some guidance on how to go about it.

[Viscount Camrose (Con)]

I thank my noble friend Lady Harding for moving this important amendment. I also thank the cosignatories—the noble Lords, Lord Clement-Jones and Lord Black, and the noble Baroness, Lady Jones. As per my noble friend’s request, I acknowledge the importance of this measure and the difficulty of judging it quite right. It is a difficult balance and I will do my best to provide some reassurance, but I welcomed hearing the wise words of all those who spoke.

I turn first to the clarifying Amendments 27 and 32. I reassure my noble friend Lady Harding that, in my view, neither is necessary. Clause 11 amends the drafting of the list of cases when the exemption under Article 14(5) applies but the list closes with “or”, which makes it clear that you need to meet only one of the criteria listed in paragraph (5) to be exempt from the transparency requirements.

I turn now to Amendments 28 to 34, which collectively aim to expand the grounds of disproportionate effort to exempt controllers from providing certain information to individuals. The Government support the use of public data sources, such as the OER, which may be helpful for innovation and may have economic benefits. Sometimes, providing this information is simply not possible or is disproportionate. Existing exemptions apply when the data subject already has the information or in cases where personal data has been obtained from someone other than the data subject and it would be impossible to provide the information or disproportionate effort would be required to do so.

We must strike the right balance between supporting the use of these datasets and ensuring transparency for data subjects. We also want to be careful about protecting the integrity of the electoral register, open or closed, to ensure that it is used within the data subject’s reasonable expectations. The exemptions that apply when the data subject already has the information or when there would be a disproportionate effort in providing the information must be assessed on a case-by-case basis, particularly if personal data from public registers is to be combined with other sources of personal data to build a profile for direct marketing.

These amendments may infringe on transparency—a key principle in the data protection framework. The right to receive information about what is happening to your data is important for exercising other rights, such as the right to object. This could be seen as going beyond what individuals might expect to happen to their data.

The Government are not currently convinced that these amendments would be sufficient to prevent negative consequences to data subject rights and confidence in the open electoral register and other public registers, given the combination of data from various sources to build a profile—that was the subject of the tribunal case being referenced. Furthermore, the Government’s view is that there is no need to amend Article 14(6) explicitly to include the “reasonable expectation of the data subjects” as the drafting already includes reference to “appropriate safeguards”. This, in conjunction with the fairness principle, means that data controllers are already required to take this into account when applying the disproportionate effort exemption.

The above notwithstanding, the Government understand that the ICO may explore this question as part of its work on guidance in the future. That seems a better way of addressing this issue in the first instance, ensuring the right balance between the use of the open electoral register and the rights of data subjects. We will continue to work closely with the relevant stakeholders involved and monitor the situation.

Data Protection and Digital Information Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Wednesday 20th March 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to all noble Lords who have spoken on this group. Amendment 6 to Clause 2, tabled by the noble Lord, Lord Clement-Jones, rightly tests the boundaries on the use of personal data for scientific research and, as he says, begins to ask, “What is the real purpose of this clause? Is it the clarification of existing good practice or is it something new? Do we fully understand what that new proposition is?”

As he said, there is particular public concern about the use of personal health data where it seems that some private companies are stretching the interpretation of “the public good”, for which authorisation for the use of this data was initially freely given, to something much wider. Although the clause seeks to provide some reassurance on this, we question whether it goes far enough and whether there are sufficient protections against the misuse of personal health data in the way the clause is worded.

This raises the question of whether it is only public health research that needs to be in the public interest, which is the way the clause is worded at the moment, because it could equally apply to research using personal data from other public services, such as measuring educational outcomes or accessing social housing. There is a range of uses for personal data. In an earlier debate, we heard about the plethora of data already held on people, much of which individuals do not understand or know about and which could be used for research or to make judgments about them. So we need to be sensitive about the way this might be used. It would be helpful to hear from the Minister why public health research has been singled out for special attention when, arguably, it should be a wider right across the board.

Noble Lords have asked questions about the wider concerns around Clause 2, which could enable private companies to use personal data to develop new products for commercial benefit without needing to inform the data subjects. As noble Lords have said, this is not what people would normally expect to be described as “scientific research”. The noble Baroness, Lady Kidron, was quite right that it has the potential to be unethical, so we need some standards and some clear understanding of what we mean by “scientific research”.

That is particularly important for Amendments 7 and 132 to 134 in the name of the noble Lord, Lord Clement-Jones, which underline the need for data subjects to be empowered and given the opportunity to object to their data being used for a new purpose. Arguably, without these extra guarantees—particularly because there is a lack of trust about how a lot of this information is being used—data subjects will be increasingly reluctant to hand over personal data on a voluntary basis in the first place. It may well be that this is an area where the Information Commissioner needs to provide additional advice and guidance to ensure that we can reap the benefits of good-quality scientific research that is in the public interest and in which the citizens involved can have absolute trust. Noble Lords around the Room have stressed that point.

Finally, we have added our names to the amendments tabled by the noble Baroness, Lady Kidron, on the use of children’s data for scientific research. As she rightly points out, the 2018 Act gave children a higher standard of protection on the uses for which their data is collected and processed. It is vital that this Bill, for all its intents to simplify and water down preceding rights, does not accidentally put at risk the higher protection agreed for children. In the earlier debate, the Minister said that he believed it will not do so. I am not sure that “believe” is a strong enough word here; we need guarantees that go beyond that. I think that this is an issue we will come back to again and again in terms of what is in the Bill and what guarantees exist for that protection.

In particular, there is a concern that relaxing the legal basis on which personal data can be processed for scientific research, including privately funded research carried out by commercial entities, could open the door for children’s data to be exploited for commercial purposes. We will consider the use of children’s data collected in schools in our debate on a separate group but we clearly need to ensure that the handling of pupils’ data by the Department for Education and the use of educational apps by private companies do not lead to a generation of exploited children who are vulnerable to direct marketing and manipulative messaging. The noble Baroness’s amendments are really important in this regard.

I also think that the noble Baroness’s Amendment 145 is a useful initiative to establish a code of practice on children’s data and scientific research. It would give us an opportunity to balance the best advantages of children’s research, which is clearly in the public and personal interest, with the maintenance of the highest level of protection from exploitation.

I hope that the Minister can see the sense in these amendments. In particular, I hope that he will take forward the noble Baroness’s proposals and agree to work with us on the code of practice principles and to put something like that in the Bill. I look forward to his response.

[Viscount Camrose (Con)]

I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for this series of amendments.

I will first address Amendment 6, which seeks to amend Clause 2. As the noble Lord said, the definitions created by Clause 2, including “scientific research purposes”, are based on the current wording in recital 159 to the UK GDPR. We are changing not the scope of these definitions but their legal status. This amendment would require individual researchers to assess whether their research should be considered to be in the public interest, which could create uncertainty in the sector and discourage research. This would be more restrictive than the current position and would undermine the Government’s objectives to facilitate scientific research and empower researchers.

We have maintained a flexible scope as to what is covered by “scientific research” while ensuring that the definition is still sufficiently narrow in that it can cover only what would reasonably be seen as scientific research. This is because the legislation needs to be able to adapt to the emergence of new areas of innovative research. Therefore, the Government feel that it is more appropriate for the regulator to add more nuance and context to the definition. This includes the types of processing that are considered—

--- Later in debate ---

There is a lot to like here. The noble Baroness has done the Government’s job for them; the drafting seems terrific to me. I am sure that the Minister will talk about the amendments being technically flawed and so on and so forth—that is bound to happen—but I think that they are pretty good and very much hope that he will give them a fair wind. I know that he will be personally enthusiastic about this.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am also pleased to support these amendments in the name of the noble Baroness, Lady Kidron, to which I have added my name. I am hugely enthusiastic about them, too, and think that this has been a lightbulb moment from the noble Baroness. I very much thank her for doing all of this background work because she has identified the current weakness in the data protection landscape: it is currently predicated on an arrangement between an individual and the organisation that holds their data.

That is an inherently unbalanced power construct. As the noble Baroness said, as tech companies become larger and more powerful, it is not surprising that many individuals feel overwhelmed by the task of questioning or challenging those that are processing their personal information. It assumes a degree of knowledge about their rights and a degree of digital literacy, which we know many people do not possess.

In the very good debate that we had on digital exclusion a few weeks ago, it was highlighted that around 2.4 million people are unable to complete a single basic task to get online, such as opening an internet browser, and that more than 5 million employed adults cannot complete essential digital work tasks. These individuals cannot be expected to access their digital data on their own; they need the safety of a larger group to do so. We need to protect the interests of an entire group that would otherwise be locked out of the system.

The noble Baroness referred to the example of Uber drivers who were helped by their trade union to access their data, sharing patterns of exploitation and subsequently strengthening their employment package, but this does not have to be about just union membership; it could be about the interests of a group of public sector service users who want to make sure that they are not being discriminated against, a community group that wants its bid for a local grant to be treated fairly, and so on. We can all imagine examples of where this would work in a group’s interest. As the noble Baroness said, these proposals would allow any group of people to assign their rights—rights that are more powerful together than apart.

There could be other benefits; if data controllers are concerned about the number of individual requests that they are receiving for data information—and a lot of this Bill is supposed to address that extra work—group requests, on behalf of a data community, could provide economies of scale and make the whole system more efficient.

Like the noble Baroness, I can see great advantages from this proposal; it could lay the foundation for other forms of data innovation and help to build trust with many citizens who currently see digitalisation as something to fear—this could allay those fears. Like the noble Lord, Lord Clement-Jones, I hope the Minister can provide some reassurance that the Government welcome this proposal, take it seriously and will be prepared to work with the noble Baroness and others to make it a reality, because there is the essence of a very good initiative here.

[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for raising this interesting and compelling set of ideas. I turn first to Amendments 10 and 35 relating to data communities. The Government recognise that individuals need to have the appropriate tools and mechanisms to easily exercise their rights under the data protection legislation. It is worth pointing out that current legislation does not prevent data subjects authorising third parties to exercise certain rights. Article 80 of the UK GDPR also explicitly gives data subjects the right to appoint not-for-profit bodies to exercise certain rights, including their right to bring a complaint to the ICO, to appeal against a decision of the ICO or to bring legal proceedings against a controller or processor and the right to receive compensation.

The concept of data communities exercising certain data subject rights is closely linked with the wider concept of data intermediaries. The Government recognise the existing and potential benefits of data intermediaries and are committed to supporting them. However, given that data intermediaries are new, we need to be careful not to distort the sector at such an early stage of development. As in many areas of the economy, officials are in regular contact with businesses, and the data intermediary sector is no different. One such engagement is the DBT’s Smart Data Council, which includes a number of intermediary businesses that advise the Government on the direction of smart data policy. The Government would welcome further and continued engagement with intermediary businesses to inform how data policy is developed.