Data (Use and Access) Bill [HL]

Debate between Baroness Jones of Whitchurch and Baroness Kidron

Committee stage
Wednesday 18th December 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank noble Lords who have welcomed the provisions in the Bill. I very much appreciate that we have taken on board the concerns that were raised in the debates on the previous legislation. I thank the noble Baroness, Lady Kidron, and the noble Lords, Lord Bethell and Lord Clement-Jones, for their amendments.

I will speak first to Amendment 197, tabled by the noble Baroness, Lady Kidron, which would compel the Secretary of State to create a framework and to do so within 12 months of passage. I understand and share her desire to ensure that a framework allowing researchers access is installed and done promptly. This is precisely why we brought forward this provision. I reassure her that the department will consult on the framework as soon as possible after the publication of Ofcom’s report.

Turning to Amendments 198 and 198B, tabled by the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, respectively, Clause 123 provides the Secretary of State with the power to make regulations relating to researchers’ access to data. I can reassure noble Lords that it does not limit the regulations to the non-exhaustive list of examples provided. I agree that fair and proportionate criteria for who is considered a researcher are critical to the success of the future framework. I reassure noble Lords that in the provision as currently written the Secretary of State can include in the design of the framework the specific requirements that a person must meet to be considered a researcher.

Turning to Amendments 198A and 198D, tabled by the noble Lord, Lord Bethell, while I am sympathetic to his desire to provide a future framework with the robust enforcement powers of the OSA, I assure him that as the provision is written, the Secretary of State can already use the existing enforcement powers of the OSA to support a future framework. Furthermore, should the evidence suggest that additional or different measures would be more effective and appropriate, this provision allows the Secretary of State the flexibility to introduce them.

Turning next to Amendments 198C and 198E, tabled by the noble Lord, Lord Bethell, I understand the spirit of these amendments and note the importance of this issue, given the global nature of the online world. It is entirely reasonable to allow researchers who are not based in the UK to utilise our researcher access framework, as long as the subject of their research is the experience of UK users online. I reassure him that the provisions as drafted already allow the Secretary of State to make regulations permitting non-UK-based researchers to use the framework where appropriate. We plan to use the evidence gathered through our own means and through Ofcom’s report to set out who will be eligible to use the framework in the secondary legislation.

Finally, turning to Amendment 198F, I am aware of the concern that researchers have encountered blockages to conducting research and I am sympathetic to the intentions behind the amendment. We must ensure that researchers can use the future framework without fear of legal action or other consequences. I am conscious that the noble Baroness, Lady Kidron, asked me a specific question about legal exemptions and I will write to her to make that answer much clearer. I reassure noble Lords that the Government are considering the specific issues that the noble Lord raises. For these reasons, I ask that the amendments not be pressed while the Government consider these issues further and I am of course happy to engage with noble Lords in the meantime.

[Baroness Kidron (CB)]

My Lords, I thank the Minister and everyone who spoke. I do not think I heard an answer to the may/must issue and I think I need to say that just relying on Ofcom’s report to set the framework for the regime is not adequate, for two reasons. First, it is no news to the Committee that there is a considerable amount of disquiet about how the Online Safety Act has been reinterpreted without Parliament’s intention. During the passage of this Bill, we are trying to be really clear—we will win some and we will lose some—on the face of the Bill what Parliament’s intention is, so that the regulator really does what we agree, because that subject is currently quite contentious.

This is a new area and a lot of the issues that the Minister and, indeed, the noble Viscount, Lord Camrose, raised are here to be sorted out to make sure that we understand collectively what it will look like. Having said that, I would like the Government to have heard that we do not wish to rest on the actions of whistleblowers but we will be increasingly forced to do so if we do not have a good regime. We must understand the capacity of this sector to go to court. We are in court everywhere, all over the world; the sector has deep pockets.

Finally, I welcome the nitpicking of the noble Lord, Lord Arbuthnot. Long may he nitpick. We will make sure that he is content before Report. With that, I beg leave to withdraw the amendment.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Baroness and the noble Lord, Lord Arbuthnot, for Amendment 207 and for raising this important topic. The noble Baroness and other noble Lords are right that this issue goes far wider than Horizon. We could debate what went wrong with Horizon, but the issues before us today are much wider than that.

The Government are agreed that we must prevent future miscarriages of justice. We fully understand the intention behind the amendment and the significance of the issue. We are actively considering this matter and will announce next steps in the new year. I reassure noble Lords that we are on the case with this issue.

In the meantime, as this amendment brings into scope evidence presented in every type of court proceeding and would have a detrimental effect on the courts and prosecution—potentially leading to unnecessary delays and, more importantly, further distress to victims—I must ask the noble Baroness whether she is content to withdraw it at this stage. I ask that on the basis that this is an ongoing discussion that we are happy to have with her.

[Baroness Kidron (CB)]

I thank the Minister, in particular for understanding that this goes way beyond Horizon. I would be very interested to be involved in those conversations, not because I have the great truth but because I have access to people with the great truth on this issue. In the conversations I have had, there has been so much pushing back. A bit like with our previous group, it would have been better to have been in the conversation before the consultation was announced than after. On that basis, I beg leave to withdraw the amendment.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Kidron, for her amendment. I agree with her that the public sector has a wealth of data assets that could be used to help our society achieve our missions and contribute to economic growth.

As well as my previous comments on the national data library, the Government’s recent Green Paper, Invest 2035: The UK’s Modern Industrial Strategy, makes it clear that we consider data access part of the modern business environment, so improving data access is integral to the UK’s approach to growth. However, we also recognise the value of our data assets as part of this approach. At the same time, it is critical that we use our data assets in a trustworthy and ethical way, as the noble Baroness, Lady Kidron, and the noble Lord, Lord Tarassenko, said, so we must tackle these issues carefully.

This is an active area of policy development for the Government, and we need to get it right. I must therefore ask the noble Baroness to withdraw her amendment. However, she started and provoked a debate that will, I hope, carry on; we would be happy to engage in that debate going forward.

[Baroness Kidron (CB)]

I thank all speakers, in particular my noble friend Lord Tarassenko for his perspective. I am very happy to discuss this matter and let the Official Opposition know that this is a route to something more substantive to which they can agree. I beg leave to withdraw my amendment.

Data (Use and Access) Bill [HL]

Debate between Baroness Jones of Whitchurch and Baroness Kidron

Committee stage
Monday 16th December 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

I reassure the noble Lord that, as he knows, we are very hopeful that we will have data adequacy so that issue will not arise. I will write to him to set out in more detail when those powers would be used.

[Baroness Kidron (CB)]

I thank the Minister for her offer of a meeting. I could tell from the nods of my co-signatories that that would indeed be very welcome and we would all like to come. I was interested in the quote from the ICO about scraping. I doubt the Minister has it to hand, but perhaps she could write to say what volume of enforcement action has been taken by the ICO on behalf of data rights holders against scraping on that basis.

[Baroness Jones of Whitchurch (Lab)]

Yes, it would be helpful if we could write and set that out in more detail. Obviously the ICO’s report is fairly recent, but I am sure he has considered how the enforcement would follow on from that. I am sure we can write and give more details.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Viscount, Lord Colville, and the noble Baroness, Lady Kidron, for their amendments and consideration of this policy area. I hope noble Lords will bear with me if I save some of the points I shall make on web crawling and intellectual property for the later group, which is specifically on that topic.

Amendments 92 and 93 from the noble Viscount are about the new disproportionate effort exemption in Article 13. I can reassure noble Lords that this exemption applies only when data is collected directly from the data subject, so it cannot be used for web crawling, which is, if you like, a secondary activity. I think that answers that concern.

Amendments 101 and 105, also from the noble Viscount, are about the changes to the existing exemption in Article 14, where data is collected from other sources. Noble Lords debated this issue in the previous group, where Amendments 97 and 99 sought to remove this exemption. The reassurances I provided to noble Lords in that debate about the proportionality test being a case-by-case exercise also apply here. Disproportionate effort cannot be used as an excuse; developers must consider the rights of the data subject on each occasion.

I also draw noble Lords’ attention to another quote from the ICO itself, made when publishing its recent outcome reports. I know I have already said that I will share more information on this. It says:

“Generative AI developers, it’s time to tell people how you’re using their information”.


The ICO is on the case on this issue, and is pursuing it.

On Amendment 137 from the noble Baronesses, Lady Kidron and Lady Harding, and other noble Lords, I fully recognise the importance of organisations receiving clear guidance from regulators, especially on complex and technical issues. AI is one such issue. I know that noble Lords are particularly conscious of how it might affect children, and I am hearing the messages about that today.

As the noble Baroness will know, the Secretary of State already has the power to request statutory codes such as this from the regulator. The existing power will allow us to ensure the correct scope of any future codes, working closely with the ICO and stakeholders and including noble Lords here today, and I am happy to meet them to discuss this further. The Government are, naturally, open to evidence about whether new statutory codes should be provided for by regulations in future. Although I appreciate the signal this can send, at the moment I do not believe that a requirement for codes on this issue is needed in this legislation. I hope noble Lords are reassured that the Government are taking this issue seriously.

Amendment 211A from the noble Lord, Lord Holmes, is about prohibiting the processing of people’s names, facial images, voices or any physical characteristics for AI training without their consent. Facial images and other physical characteristics that can be used to identify a person are already protected by the data protection legislation. An AI developer processing such data would have to identify a lawful ground for this. Consent is not the only option available, but I can reassure the noble Lord that there are firm safeguards in place for all the lawful grounds. These include, among many other things, making sure that the processing is fair and transparent. Noble Lords will know that even more stringent conditions, such as safeguards applying in relation to race, sexual orientation and any biometric data that can be used to identify someone as types of a special category of data are also covered.

Noble Lords tried to tempt me once again on the timetable for the AI legislation. I said as much as I could on that when we debated this in the last session, so I cannot add any more at this stage.

I hope that reassures noble Lords that the Bill has strong protections in place to ensure responsible data use and reuse, and, as such, that they feel content not to press their amendments.

[Baroness Kidron (CB)]

I understand the point that the Secretary of State has the power, but does he have the intention? We are seeking an instruction to the ICO to do exactly this thing. The Secretary of State’s intention would be an excellent compromise all round to activate such a thing, and to see that in the Bill is the point here.

[Baroness Jones of Whitchurch (Lab)]

Discussions with the ICO are taking place at the moment about the scope and intention of a number of issues around AI, and this issue would be included in that. However, I cannot say at the moment that that intention is specifically spelled out in the way that the noble Baroness is asking.

Data (Use and Access) Bill [HL]

Debate between Baroness Jones of Whitchurch and Baroness Kidron

Committee stage
Tuesday 10th December 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, I feel we are getting slightly repetitive, but before I, too, repeat myself, I should like to say something that I did not get the chance to say the noble Viscount, Lord Colville, the noble Baroness, Lady Kidron, and others: I will write, we will meet—all the things that you have asked for, you can take it for granted that they will happen, because we want to get this right.

I say briefly to the noble Baroness: we are in danger of thinking that the only good research is health research. If you go to any university up and down the country, you find that the most fantastic research is taking place in the most obscure subjects, be it physics, mechanical engineering, fabrics or, as I mentioned earlier, quantum. A lot of great research is going on. We are in danger of thinking that life sciences are the only thing that we do well. We need to open our minds a bit to create the space for those original thinkers in other sectors.

[Baroness Kidron (CB)]

Perhaps I did not make myself clear. I was saying that the defence always goes to space or to medicine, and we are trying to ascertain the product development that is not textiles, and so on. I have two positions in two different universities; they are marvellous places; research is very important.

[Baroness Jones of Whitchurch (Lab)]

I am glad we are on the same page on all that.

I now turn to the specifics of the amendments. I thank the noble Lords, Lord Freyberg and Lord Holmes, and the noble Viscount, Lord Camrose, for their amendments, and the noble Lord, Lord Lucas, for his contribution. As I said in the previous debate, I can reassure all noble Lords that if an area of research does not count as scientific research at the moment, it will not under the Bill. These provisions do not expand the meaning of scientific research. If noble Lords still feel unsure about that, I am happy to offer a technical briefing to those who are interested in this issue to clarify that as far as possible.

Moreover, the Bill’s requirement for a reasonableness test will help limit the misuse of this definition more than the current UK GDPR, which says that scientific research should be interpreted broadly. We are tightening up the regulations. This is best assessed on a case-by- case basis, along with the ICO guidance, rather than automatically disqualifying or passing into our activity sectors by approval.

Scientific research that is privately funded or conducted by commercial organisations can also have a life-changing impact. The noble Lord, Lord Markham, was talking earlier about health; issues such as the development of Covid vaccines are just one example of this. It was commercial research that was absolutely life-saving, at the end of the day.

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[Baroness Jones of Whitchurch (Lab)]

I thank all noble Lords who have raised this important topic. I say at the outset that I appreciate and pay tribute to those who have worked on this for many years—in particular the noble Baroness, Lady Kidron, who has been a fantastic champion of these issues.

I also reassure noble Lords that these provisions are intended to build upon, and certainly not to undermine, the rights of children as they have previously been defined. We share noble Lords’ commitment to ensuring high standards of protection for children. That is why I am glad that the Bill, together with existing data protection principles, already provides robust protections for children. I hope that my response to these amendments shows that we take these issues seriously. The ICO also recognises in its guidance, after the UN Committee on the Rights of the Child, that the duties and responsibilities to respect the rights of children extend in practice to private actors and business enterprises.

Amendment 82, moved by the noble Lord, Lord Clement-Jones, would exclude children’s personal data from the exemptions to the purpose limitation principles in Schedule 5 to the Bill. The new purposes are for important public interests only, such as safeguarding vulnerable individuals or children. Broader existing safeguards in the data protection framework, such as the fairness and lawfulness principles, also apply. Prohibiting a change of purpose in processing could impede important activities, such as the safeguarding issues to which I have referred.

Amendment 88, tabled by the noble Baroness, Lady Kidron, would introduce a new duty requiring all data controllers to consider that children are entitled to higher protection than adults. We understand the noble Baroness’s intentions and, in many ways, share her aims, but we would prefer to focus on improving compliance with the current legislation, including through the way the ICO discharges its regulatory functions.

In addition, the proposed duty could have some unwelcome and unintended effects. For example, it could lead to questions about why other vulnerable people are not entitled to enhanced protections. It would also apply to organisations of all sizes, including micro-businesses and voluntary sector organisations, even if they process children’s data on only a small scale. It could also cause confusion about what they would need to do to verify age to comply with the new duty.

Amendment 94, also tabled by the noble Baroness, would ensure that the new notification exemptions under Article 13 would not apply to children. However, removing children’s data from this exemption could mean that some important research—for example, on the causes of childhood diseases—could not be undertaken if the data controller were unable to contact the individuals about the intended processing activity.

Amendment 135 would place new duties on the ICO to uphold the rights of children. The ICO’s new strategic framework, introduced by the Bill, has been carefully structured to achieve a similar effect. Its principal objective requires the regulator to

“secure an appropriate level of protection for personal data”.

This gives flexibility and nuance in the appropriateness of the level of protections; they are not always the same for all data subjects, all the time.

Going beyond this, though, the strategic framework includes the new duty relating to children. This acknowledges that, as the noble Baroness, Lady Kidron, said, children may be less aware of the risks and consequences associated with the processing of their data, as well of as their rights. As she pointed out, this is drawn from recital 38 to the UK GDPR, but the Government’s view is that the Bill’s language gives sufficient effect to the recital. We recognise the importance of clarity on this issue and hope that we have achieved it but, obviously, we are happy to talk further to the noble Baroness on this matter.

This duty will also be a consideration for the ICO and one to which the commissioner must have regard across all data protection activities, where relevant. It will inform the regulator’s thinking on everything from enforcement to guidance, including how work might need to be tailored to suit children at all stages of childhood in order to ensure that the levels of protection are appropriate.

Finally, regarding Amendment 196—

[Baroness Kidron (CB)]

I thank the Minister for giving way. I would like her to explain why only half of the recital is in the Bill and why the fact that children merit special attention is in the Bill. How can it possibly be that, in this Bill, we are giving children adequate protection? I can disagree with some of the other things that she said, but I would like her to answer that specific question.

[Baroness Jones of Whitchurch (Lab)]

To be on the safe side, I will write to the noble Baroness. We feel that other bits in the provisions of the Bill cover the other aspects but, just to be clear on it, I will write to her. On Amendment 196 and the Online Safety Act—

Data (Use and Access) Bill [HL]

Debate between Baroness Jones of Whitchurch and Baroness Kidron

Committee stage
Tuesday 3rd December 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

I might need to write to the noble Viscount, but I am pretty sure that that is happening at an official level on a fairly regular basis. The noble Viscount raises an important point. I reassure him that those discussions are ongoing, and we have huge respect for those international organisations. I will put the detail of that in writing to him.

I turn to Amendment 37, tabled by the noble Viscount, Lord Camrose, which would require the DVS trust framework to be laid before Parliament. The trust framework contains auditable rules to be followed by registered providers of digital verification services. The rules, published in their third non-statutory iteration last week on GOV.UK, draw on and often signpost existing technical requirements, standards, best practice, guidance and legislation. It is a hugely technical document, and I am not sure that Parliament would make a great deal of sense of it if it was put forward in its current format. However, the Bill places consultation on a statutory footing, ensuring that it must take place when the trust framework is being prepared and reviewed.

Amendments 36 and 38, tabled by the noble Lord, Lord Clement-Jones, would create an obligation for the Secretary of State to reconsult and publish a five-year strategy on digital verification services. It is important to ensure that the Government have a coherent strategy for enabling the digital verification services market. That is why we have already consulted publicly on these measures, and we continue to work with experts. However, given the nascency of the digital identity market and the pace of those technological developments, as the noble Viscount, Lord Camrose, said, forecasting five years into the future is not practical at this stage. We will welcome scrutiny through the publication of the annual report, which we are committed to publishing, as required by Clause 53. This report will support transparency through the provision of information, including performance data regarding the operation of Part 2.

Amendment 39, also tabled by the noble Lord, Lord Clement-Jones, proposes to exclude certified public bodies from registering to provide digital verification services. We believe that such an exclusion could lead to unnecessary restrictions on the UK’s young digital verification market. The noble Lord mentioned the GOV.UK One Login programme, which is aligned with the standards of the trust framework but is a separate government programme which gives people a single sign-on service to access public services. It uses different legal powers to operate its services from what is being proposed here. We do not accept that we need to exclude public bodies from the scrutiny that would otherwise take place.

Amendment 46 seeks to create a duty for organisations that require verification and use digital verification for that purpose to offer, where reasonably practicable, a non-digital route and ensure that individuals are made aware of both options for verification. I should stress here that the provision in the Bill relates to the provision of digital verification services, not requirements on businesses in general about how they conduct verification checks.

Ensuring digital inclusion is a priority for this Government, which is why we have set up the digital inclusion and skills unit within DSIT. Furthermore, there are already legislative protections in the Equality Act 2010 in respect of protected groups, and the Government will take action in the future if evidence emerges that people are being excluded from essential products and services by being unable to use digital routes for proving their identity or eligibility.

The Government will publish a code of practice for disclosure of information, subject to parliamentary review, highlighting best practice and relevant information to be considered when sharing information. As for Amendment 49, the Government intend to update this code only when required, so an annual review process would not be necessary. I stress to the Committee that digital verification services are not going to be mandatory. It is entirely voluntary for businesses to use them, so it is up to individuals whether they use that service or not. I think people are feeling that it is going to be imposed on people, and I would push against that proposal.

If the regulation-making power in Amendment 50 proposed by the noble Lord, Lord Clement-Jones, was used, it would place obligations on the Information Commissioner to monitor the volume of verification checks being made, using the permissive powers to disclose information created in the clause. The role of the commissioner is to regulate data protection in the UK, which already includes monitoring and promoting responsible data-sharing by public authorities. For the reasons set out above, I hope that noble Lords will feel comfortable in not pressing their amendments.

[Baroness Kidron (CB)]

Can I double-check that nothing was said about the interaction between the Bill and the OSA in all of that? I understood the Minister to say that she would perhaps write to me about vulnerable people, but my question about how this interacts was not answered. Perhaps she will write to me on that issue as well.

[Baroness Jones of Whitchurch (Lab)]

Was that a question on age assurance?

[Baroness Kidron (CB)]

Yes, the ICO is undertaking work on age assurance under the OSA at the moment. My point was about how the two regimes intersect and how children get treated under each. Do they fall between?

[Baroness Jones of Whitchurch (Lab)]

I will, of course, write to the noble Baroness.

Data (Use and Access) Bill [HL]

Debate between Baroness Jones of Whitchurch and Baroness Kidron

2nd reading
Tuesday 19th November 2024 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

With respect, it is the narrow question that a number of us have raised. Training the new AI systems is entirely dependent on them being fed vast amounts of material which they can absorb, process and reshape in order to answer questions that are asked of them. That information is to all intents and purposes somebody else’s property. What will happen to resolve the barrier? At the moment, they are not paying for it but just taking it—scraping it.

[Baroness Kidron (CB)]

Perhaps I may come in too. Specifically, how does the data protection framework change it? We have had the ICO suggesting that the current framework works perfectly well and that it is the responsibility of the scrapers to let the IP holders know, while the IP holders have not a clue that it is being scraped. It is already scraped and there is no mechanism. I think we are a little confused about what the plan is.

[Baroness Jones of Whitchurch (Lab)]

I can certainly write to noble Lords setting out more details on this. I said in response to an Oral Question a few days ago that my honourable friend Minister Clark in DSIT and Chris Bryant, whom the noble Lord, Lord Russell, mentioned, are working jointly on this. They are looking at a proposal that can come forward on intellectual property in more detail. I hope that I can write to noble Lords and set out more detail on that.

On the question of the Horizon scandal and the validity of computers, raised, quite rightly, by the noble Lords, Lord Arbuthnot and Lord Holmes, and the noble Baroness, Lady Kidron, I think we all understand that the Horizon scandal was a terrible miscarriage of justice, and the convictions of postmasters who were wrongly convicted have been rightly overturned. Those Post Office prosecutions relied on assertions that the Horizon system was accurate and reliable, which the Post Office knew to be wrong. This was supported by expert evidence, which it knew to be misleading. The issue was not, therefore, purely about the reliability of the computer-generated evidence. Almost all criminal cases rely to some extent on computer evidence, so the implications of amending the law in this area are far- reaching, a point made by several noble Lords. The Government are aware that this is an issue, are considering this matter very carefully and will announce next steps in due course.

Many noble Lords, including the noble Lords, Lord Clement-Jones, Lord Vaux and Lord Holmes of Richmond, and the noble and learned Lord, Lord Thomas, raised automated decision-making. I noted in my opening speech how the restored accountability framework gives us greater confidence in ADM, so I will not go over that again in detail. But to explain the Bill’s drafting, I want to reassure and clarify for noble Lords that the Bill means that the organisation must first inform individuals if a legal or significant decision has been taken in relation to them based solely on automated processing, and then they must give individuals the opportunity to challenge such decisions, obtain human intervention for them and make representations about them to the controller.

The regulation-making powers will future-proof the ADM reforms in the Bill, ensuring that the Government will have the powers to bring greater legal certainty, where necessary and proportionate, in the light of constantly evolving technology. I reiterate that there will be the right to human intervention, and it will be on a personal basis.

The noble Baroness, Lady Kidron, and the noble Lords, Lord Russell of Liverpool and Lord Clement-Jones, raised concerns about edtech. The Government recognise that concerns have been raised about the amount of personal data collected by education technology used in schools, and whether this is fully transparent to children and parents. The Department for Education is committed to improving guidance and support for schools to help them better navigate this market. For example, its Get Help with Data Protection in Schools project has been established to help schools develop guidance and tools to help them both understand and comply with data protection legislation. Separately, the ICO has carried out a series of audits on edtech service providers, assessing privacy risks and potential non-compliance with data protection regulations in the development, deployment and use of edtech solutions in schools.

The creation of child sexual abuse material, CSAM, through all mediums including AI—offline or online—is and continues to be illegal. This is a forefront priority for this Government and we are considering all levers that can be utilised to fight child sexual abuse. Responsibility for the law in this area rests with the Home Office; I know it is actively and sympathetically looking at this matter and I understand that my colleague the Safeguarding Minister will be in touch with the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, ahead of Committee.

I can see that I am running out of time so, rather than testing noble Lords’ patience, will draw my comments to a close. I have not picked up all the comments that colleagues made, but I thank everybody for their excellent contributions. This is the beginning of a much longer conversation, which I am very much looking forward to, as I am to hearing all those who promised to participate in Committee. I am sure we will have a rich and interesting discussion then.

I hope I have persuaded some noble Lords that the Bill is not only wide ranging but has a clear and simple focus, which is about growing the economy, creating a modern, digital government and, most importantly, improving people’s lives, which will be underpinned by robust personal data protection. I will not say any more at this stage. We will follow up but, in the meantime, I beg to move.

Online Safety Legislation: Abuse on Social Media

Debate between Baroness Jones of Whitchurch and Baroness Kidron

Thursday 5th September 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, Ofcom has a very wide-ranging and serious set of responsibilities. There is no suggestion that it is not carrying out its responsibilities in the run-up to the implementation of the Online Safety Act. We are working very closely with Ofcom and believe that it will carry out those additional functions that we have given it with proper scrutiny and to high standards. Yes, there is a case for looking at all regulators; we have a debate on this on Monday in the House, and I am looking forward to that, but that is a wider issue. For the moment, we have to give Ofcom all the support that we can in implementing a very difficult set of regulations.

[Baroness Kidron (CB)]

My Lords, the crafting of the Online Safety Act was fraught with exceptions, exclusions and loopholes, the most egregious of which is that regulated companies get safe harbour if they comply with Ofcom’s codes, but Ofcom has provided us with codes that have huge gaps in known harms. What plans do the Government have to fulfil their election promise to strengthen the OSA by ensuring that it protects all children effectively, even the very young, and that it has adequate mechanisms to act swiftly in a crisis, or with an evolving new risk, to stop abuse being whipped up algorithmically and directed at minority groups?

[Baroness Jones of Whitchurch (Lab)]

My Lords, I think that we are in danger of downplaying the significance of the Online Safety Act. It is a trail-blazing Act; the noble Baroness was very much involved in it. Our priority has to be to get that Act implemented. Under it, all user-to-user services and search providers, regardless of size, will have to take swift and effective action against illegal content, including criminal online abuse and posts of a sexual nature. We should get behind Ofcom and the Online Safety Act, and we will then obviously have to keep that Act under review, but we have the tools to do that.

Digital Markets, Competition and Consumers Bill

Debate between Baroness Jones of Whitchurch and Baroness Kidron

Committee stage
Monday 22nd January 2024 Grand Committee

[Baroness Kidron (CB)]

My Lords, I am sorry to break the Conservative bus pattern but I, too, will speak to Amendments 26 and 27, to which I have added my name, and to Amendment 30. Before I do, I was very taken by the amendments spoken to by the noble Lord, Lord Lansley, and I support them. I feel somewhat sheepish that I had not seen the relationship between data and the Bill, having spent most of the past few months with my head in the data Bill. That connection is hugely important, and I am very grateful to the noble Lord for making such a clear case. In supporting Amendments 26 and 27, I recognise the value of Amendment 25, tabled by the noble Lord, Lord Vaizey, and put on record my support for the noble Lord, Lord Holmes, on Amendment 24. So much has been said that we have managed to change the name of the leveraging principle to the whack-a-mole principle and everything that has been said has been said very well.

The only point I want to make on these two amendments, apart from to echo the profound importance that other noble Lords have already spoken of, is that the ingenuity of the sector has always struck me as being equally divided between its incredible creativity in creating new products and things for us to do and services that it can provide, and an equal ingenuity in avoiding regulation of all kinds in all parts of the world. Without having not only the designated activity but the activities the sector controls that are adjacent to the activity, we do not have the core purpose of the Bill. At one point I thought it might help the Minister to see that the argument he made in relation to Clause 6(2) and (3), which was in defence of some flexibility for the Secretary of State, might equally be made on behalf of the regulator in this case.

Turning briefly to Amendment 30 in the name of the noble Lord, Lord Clement-Jones, I first have to make a slightly unusual declaration in that my husband was one of the Hollywood writers who went on strike and won a historic settlement to be a human being in charge of their AI rather than at the behest of the AI. Not only in the creative industries but in academia, I have seen first-hand the impact of scraping information. Not only is the life’s work of an academic taken without permission, but then regurgitating it as an inaccurate mere guess undermines the very purpose of academic distinctions. There is clearly a copyright issue that requires an ability both to opt out and correct, and to share in the upside, as the noble Lord pointed out.

I suggest that the LLMs and general AI firms have taken the axiom “it’s better to ask forgiveness than permission” to unbelievable new heights. Our role during the passage of this Bill may be to turn that around and say that it is better to ask permission than forgiveness.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we have had a wonderfully eclectic debate. I am sorry if we gave some of the amendments more attention than others, because we have a number of very important issues here. Even in my response I may not be giving some colleagues due deference for their hard work and the good arguments they have put forward.

As noble Lords have commented, Amendments 26, 27 and 34 are in my name. As we have discussed, Amendments 26 and 27 would ensure that the CMA can tackle anti-competitive conduct in non-designated activity, provided that this conduct is related to designated activity. This would ensure, for example, that a designated company facing conduct requirements could not simply shift the resources of its business into another similar business venture, which would have a similar outcome of anti-competitive behaviour.

I am very grateful to the noble Baroness, Lady Stowell, for her support. The example she gave of Apple resonates with all of us and has obviously been in the news. It was one of the behaviours I described as rather vindictive in the last debate. I am not sure how much extra money Apple is going to make from it, but it is a question of rubbing someone’s nose in it because you do not like the decision that has been made. I feel that we need to address this issue.

The noble Lord, Lord Vaizey, in his Amendment 25, made a very similar point about the leveraging principle. We have all signed up to “the whack-a-mole principle”; I think we will call it that from now on. As the noble Baroness, Lady Harding, made clear, this is about addressing the leveraging of SMS markets to enter adjoining markets. She gave the example of travel price comparison. I feel that is a lazy innovation; if you get so big, you stop innovating—you copy the competing firms and taking their best ideas without innovating any more. It is in all our interests to get a grip on this, so that these companies that have great resources and great capacity for innovation innovate in a creative way rather than just copying other people’s ideas.

Amendment 34, which is also in our names, would enable the CMA to keep conduct requirements under review and take account of whether those requirements are having their intended effects or if further steps of pro-competition intervention is necessary. It would provide a clearer link between the measures available to the CMA. As the noble Lord, Lord Clement-Jones, and others have said, it underpins the importance of interoperability in CMA decisions. We believe that the amendments help to clarify and reinforce the powers available to the CMA.

I listened carefully to the noble Lord, Lord Holmes, who, as ever, provided enormous insight into the tech world and the consequences of the legislation. We share his objective of getting the powers of the CMA in the right balance. His amendment challenges the Government to explain why the CMA can only impose a conduct requirement to achieve the fair dealing, open choice or trust and transparency objectives—which seems to be overly restrictive and open to legal challenge. We look forward to hearing the Minister’s explanation of why those restrictions were felt necessary. The noble Lord, Lord Holmes, also raised an important point in his Amendment 24, which we have not given sufficient weight to, about the need for those conduct requirements to deliver proper accessibility in line with previous legislation. We absolutely support him in that quest.

The amendments from the noble Lords, Lord Clement-Jones and Lord Lansley, raise important points about transparency and improved data. They stress the importance of portability and interoperability and put data firmly into the conduct requirements. We support those arguments and look forward to the Minister’s response to what we feel are common-sense proposals.