Data Protection and Digital Information Bill

Baroness Kidron Excerpts

Committee stage
Wednesday 20th March 2024 Grand Committee

Moved by

[Baroness Kidron]

2: Clause 1, page 2, line 16, leave out “and (3)” and insert “, (3) and (3A)”
Member's explanatory statement
This amendment, and another to Clause 1 in the name of Baroness Kidron, would ensure that controllers have a duty to identify when a user is or may be a child to give them the data protection codified by the Data Protection Act 2018.

[Baroness Kidron (CB)]

My Lords, I speak to Amendments 2, 3, 9 and 290 in my name. I thank the noble Baronesses, Lady Jones and Lady Harding, and the noble Lord, Lord Clement-Jones, for their support.

This group seeks to secure the principle that children should enjoy the same protections in UK law after this Bill passes into law as they do now. In 2018, this House played a critical role in codifying the principle that children merit special, specific protection in relation to data privacy by introducing the age-appropriate design code into the DPA. Its introduction created a wave of design changes to tech products: Google introduced safe search as its default; Instagram made it harder for adults to contact children via private messaging; Play Store stopped making adult apps available to under-18s; and TikTok stopped sending notifications through the night and hundreds of thousands of underage children were denied access to age-inappropriate services. These are just a handful of the hundreds of changes that have been made, many of them rolled out globally. The AADC served as a blueprint for children’s data privacy, and its provisions have been mirrored around the globe. Many noble Lords will have noticed that, only two weeks ago, Australia announced that it is going to follow the many others who have incorporated or are currently incorporating it into their domestic legislation, saying in the press release that it would align as closely as possible with the UK’s AADC.

As constructed in the Data Protection Act 2018, the AADC sets out the requirements of the UK GDPR as they relate to children. The code is indirectly enforceable; that is to say that the action the ICO can take against those failing to comply is based on the underlying provisions of UK GDPR, which means that any watering down, softening of provisions, unstable definitions—my new favourite—or legal uncertainty created by the Bill automatically waters down, softens and creates legal uncertainty and unstable definitions for children and therefore for child protection. I use the phrase “child protection” deliberately because the most important contribution that the AADC has made at the global level was the understanding that online privacy and safety are interwoven.

Clause 1(2) creates an obligation on the controller or processor to know, or reasonably to know, that an individual is an identifiable living individual. Amendments 2 and 3 would add a further requirement to consider whether that living individual is a child. This would ensure that providers cannot wilfully ignore the presence of children, something that tech companies have a long track record of doing. I want to quote the UK Information Commissioner, who fined TikTok £12.7 million for failing to prevent under-13s accessing that service; he said:

“There are laws in place to make sure our children are as safe in the digital world as they are in the physical world. TikTok did not abide by those laws … TikTok should have known better. TikTok should have done better … They did not do enough to check who was using their platform”.


I underline very clearly that these amendments would not introduce any requirement for age assurance. The ICO’s guidance on age assurance in the AADC and the provisions in the Online Safety Act already detail those requirements. The amendments simply confirm the need to offer a child a high bar of data privacy or, if you do not know which of your users are children, offer all users that same high bar of data privacy.

As we have just heard, it is His Majesty’s Government’s stated position that nothing in the Bill lessens children’s data privacy because nothing in the Bill lessens UK GDPR, and that the Bill is merely an exercise to reduce unnecessary bureaucracy. The noble Lords who spoke on the first group have perhaps put paid to that and I imagine that this position will be sorely tested during Committee. In the light of the alternative view that the protections afforded to children’s personal data will decline as a result of the Bill, Amendment 9 proposes that the status of children’s personal data be elevated to that of “sensitive personal data”, or special category data. The threshold for processing special category data is higher than for general personal data and the specific conditions include, for example, processing with the express consent of the data subject, processing to pursue a vital interest, processing by not-for-profits or processing for legal claims or matters of substantial public interest. Bringing children’s personal data within that definition would elevate the protections by creating an additional threshold for processing.

Finally, Amendment 290 enshrines the principle that nothing in the Bill should lead to a diminution in existing levels of privacy protections that children currently enjoy. It is essentially a codification of the commitment made by the Minister in the other place:

“The Bill maintains the high standards of data protection that our citizens expect and organisations will still have to abide by our age-appropriate design code”.—[Official Report, Commons, 17/4/23; col. 101.]


Before I sit down, I just want to highlight the Harvard Gazette, which looked at ad revenue from the perspective of children. On Instagram, children account for 16% of ad revenue; on YouTube, 27%; on TikTok, 35%; and on Snap, an extraordinary 41.4%. Collectively, YouTube, Instagram and Facebook made nearly $2 billion from children aged nought to 12, and it will not escape many noble Lords that children aged nought to 12 are not supposed to be on those platforms. Instagram, YouTube and TikTok together made more than $7 billion from 13 to 17 year-olds. The amendments in this group give a modicum of protection to a demographic who have no electoral capital, who are not developmentally adult and whose lack of care is not an unfortunate by-product of the business model, but who have their data routinely extracted, sold, shared and scraped as a significant part of the ad market. It is this that determines the features that deliberately spread, polarise and keep children compulsively online, and it is this that the AADC—born in your Lordships’ House—started a global movement to contain.

This House came together on an extraordinary cross-party basis to ensure that the Online Safety Bill delivered for children, so I say to the Minister: I am not wedded to my drafting, nor to the approach that I have taken to maintain, clause by clause, the bar for children, even when that bar is changed for adults, but I am wedded to holding the tech sector accountable for children’s privacy, safety and well-being. It is my hope and—if I dare—expectation that noble Lords will join me in making sure that the DPDI Bill does not leave this House with a single diminution of data protection for children. To do so is, in effect, to give with one hand and take away with the other.

I hope that during Committee the Minister will come to accept that children’s privacy will be undermined by the Bill, and that he will work with me and others to resolve these issues so that the UK maintains its place as a global leader in children’s privacy and safety. I beg to move.

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[Viscount Camrose (Con)]

Okay. The Government feel that, in terms of the efficient and effective drafting of the Bill, that paragraph diminishes the clarity by being duplicative rather than adding to it by making a declaration. For the same reason, we have chosen not to make a series of declarations about other intentions of the Bill overall in the belief that the Bill’s intent and outcome are protected without such a statement.

[Baroness Kidron (CB)]

My Lords, before our break, the noble Baroness, Lady Harding, said that this is hard-fought ground; I hope the Minister understands from the number of questions he has just received during his response that it will continue to be hard-fought ground.

I really regret having to say this at such an early stage on the Bill, but I think that some of what the Minister said was quite disingenuous. We will get to it in other parts of the Bill, but the thing that we have all agreed to disagree on at this point is the statement that the Bill maintains data privacy for everyone in the UK. That is a point of contention between noble Lords and the Minister. I absolutely accept and understand that we will come to a collective view on it in Committee. However, the Minister appeared to suggest—I ask him to correct me if I have got this wrong—that the changes on legitimate interest and purpose limitation are child safety measures because some people are saying that they are deterred from sharing data for child protection reasons. I have to tell him that they are not couched or formed like that; they are general-purpose shifts. There is absolutely no question but that the Government could have made specific changes for child protection, put them in the Bill and made them absolutely clear. I find that very worrying.

I also find it worrying, I am afraid—this is perhaps where we are heading and the thing that many organisations are worried about—that bundling the AADC in with the Online Safety Act and saying, “I’ve got it over here so you don’t need it over there” is not the same as maintaining the protections for children from a high level of data. It is not the same set of things. I specifically said that this was not an age-verification measure and would not require it; whatever response there was on that was therefore unnecessary because I made that quite clear in my remarks. The Committee can understand that, in order to set a high bar of data protection, you must either identify a child or give it to everyone. Those are your choices. You do not have to verify.

I will withdraw the amendment, but I must say that the Government may not have it both ways. The Bill cannot be different or necessary and at the same time do nothing. The piece that I want to leave with the Committee is that it is the underlying provisions that allow the ICO to take action on the age-appropriate design code. It does not matter what is in the code; if the underlying provisions change, so does the code. During Committee, I expect that there will be a report on the changes that have happened all around the world as a result of the code, and we will be able to measure whether the new Bill would be able to create those same changes. With that, I beg leave to withdraw my amendment.

Amendment 2 withdrawn.

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I know that this is a bit like the prosecution: the Minister will protest his innocence throughout the passage of the Bill, with “Not me, guv” or something to that effect. I look forward to his reply, but I think we will really have to dig under the surface as we go through. I very much hope that the Minister can clarify whether this is new. I certainly believe that the addition of commercial purposes is potentially extremely dangerous, needs to be qualified and is novel. I beg to move.

[Baroness Kidron (CB)]

My Lords, I speak to Amendments 8, 21, 23 and 145 in my name and thank the other noble Lords who have added their names to them. In the interests of brevity, and as the noble Lord, Lord Clement-Jones, has done some of the heavy lifting on this, I will talk first to Amendment 8.

The definition of scientific research has been expanded to include commercial and non-commercial activity, so far as it

“can reasonably be described as scientific”,

but “scientific” is not defined. As the noble Lord said, there is no public interest requirement, so a commercial company can, in reality, develop almost any kind of product on the basis that it may have a scientific purpose, even—or maybe especially—if it measures your propensity to impulse buy or other commercial things. The spectre of scientific inquiry is almost infinite. Amendment 8 would exclude children simply by adding proposed new paragraph (e), which says that

“the data subject is not a child or could or should be known to be a child”,

so that their personal data cannot be used for scientific research purposes to which they have not given their consent.

I want to be clear that I am pro-research and understand the critical role that data plays in enabling us to understand societal challenges and innovate towards solutions. Indeed, I have signed the amendment in the name of the noble Lord, Lord Bethell, which would guarantee access to data for academic researchers working on matters of public interest. Some noble Lords may have been here last night, when the US Surgeon- General Vice Admiral Dr Murthy, who gave the Lord Speaker’s lecture, made a fierce argument in favour of independent public interest research, not knowing that such a proposal has been laid. I hope that, when we come to group 17, the Government heed his wise words.

In the meantime, Clause 3 simply embeds the inequality of arms between academics and corporates and extends it, making it much easier for commercial companies to use personal data for research while academics continue to be held to much higher ethical and professional standards. They continue to require express consent, DBS checks and complex ethical requirements. Not doing so, simply using personal data for research, is unethical and commercial players can rely on Clause 3 to process data without consent, in pursuit of profit. Like the noble Lord, Lord Clement-Jones, I would prefer an overall solution to this but, in its absence, this amendment would protect data from being commoditised in this way.

Amendments 21 and 23 would specifically protect children from changes to Clause 6. I have spoken on this a little already, but I would like it on the record that I am absolutely in favour of a safeguarding exemption. The additional purposes, which are compatible with but go beyond the original purpose, are not a safeguarding measure. Amendment 21 would amend the list of factors that a data controller must take into account to include the fact that children are entitled to a higher standard of protection.

Amendment 23 would not be necessary if Amendment 22 were agreed. It would commit the Secretary of State to ensuring that, when exercising their power under new Article 8A, as inserted by Clause 6(5), to add, vary or omit provisions of Annex 2, they take the 2018 Act and children’s data protection into account.

Finally, Amendment 145 proposes a code of practice on the use of children’s data in scientific research. This code would, in contrast, ensure that all researchers, commercial or in the public interest, are held to the same high standards by developing detailed guidance on the use of children’s data for research purposes. A burning question for researchers is how to properly research children’s experience, particularly regarding the harms defined by the Online Safety Act.

Proposed new subsection (1) sets out the broad headings that the ICO must cover to promote good practice. Proposed new subsection (2) confirms that the ICO must have regard to children’s rights under the UNCRC, and that they are entitled to a higher standard of protection. It would also ensure that the ICO consulted with academics, those who represent the interests of children and data scientists. There is something of a theme here: if the changes to UK GDPR did not diminish data subjects’ privacy and rights, there would be no need for amendments in this group. If there were a code for independent public research, as is so sorely needed, the substance of Amendment 145 could usefully form a part. If commercial companies can extend scientific research that has no definition, and if the Bill expands the right to further processing and the Secretary of State can unilaterally change the basis for onward processing, can the Minister explain, when he responds, how he can claim that the Bill maintains protections for children?

[Baroness Harding of Winscombe (Con)]

My Lords, I will be brief because I associate myself with everything that the noble Baroness, Lady Kidron, just said. This is where the rubber hits the road from our previous group. If we all believe that it is important to maintain children’s protection, I hope that my noble friend the Minister will be able to accept if not the exact wording of the children-specific amendments in this group then the direction of travel—and I hope that he will commit to coming back and working with us to make sure that we can get wording into the Bill.

I am hugely in favour of research in the private sector as well as in universities and the public sector; we should not close our minds to that at all. We need to be realistic that all the meaningful research in AI is currently happening in the private sector, so I do not want to close that door at all, but I am extremely uncomfortable with a Secretary of State having the ability to amend access to personal data for children in this context. It is entirely sensible to have a defined code of conduct for the use of children’s data in research. We have real evidence that a code of conduct setting out how to protect children’s rights and data in this space works, so I do not understand why it would not be a good idea to do research if we want the research to happen but we want children’s rights to be protected at a much higher level.

It seems to me that this group is self-evidently sensible, in particular Amendments 8, 22, 23 and 145. I put my name to all of them except Amendment 22 but, the more I look at the Bill, the more uncomfortable I get with it; I wish I had put my name to Amendment 22. We have discussed Secretary of State powers in each of the digital Bills that we have looked at and we know about the power that big tech has to lobby. It is not fair on Secretaries of State in future to have this ability to amend—it is extremely dangerous. I express my support for Amendment 22.

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[Viscount Camrose (Con)]

Researchers must also comply with the required safeguards to protect individuals’ privacy. All organisations conducting scientific research, including those with commercial interests, must also meet all the safeguards for research laid out in the UK GDPR and comply with the legislation’s core principles, such as fairness and transparency. Clause 26 sets out several safeguards that research organisations must comply with when processing personal data for research purposes. The ICO will update its non-statutory guidance to reflect many of the changes introduced by this Bill.

Scientific research currently holds a privileged place in the data protection framework because, by its nature, it is already viewed as generally being in the public interest. As has been observed, the Bill already applies a public interest test to processing for the purpose of public health studies in order to provide greater assurance for research that is particularly sensitive. Again, this reflects recital 159.

In response to the noble Baroness, Lady Jones, on why public health research is being singled out, as she stated, this part of the legislation just adds an additional safeguard to studies into public health ensuring that they must be in the public interest. This does not limit the scope for other research unrelated to public health. Studies in the area of public health will usually be in the public interest. For the rare, exceptional times that a study is not, this requirement provides an additional safeguard to help prevent misuse of the various exemptions and privileges for researchers in the UK GDPR. “Public interest” is not defined in the legislation, so the controller needs to make a case-by-case assessment based on its purposes.

On the point made by the noble Lord, Lord Clement-Jones, about recitals and ICO guidance, although we of course respect and welcome ICO guidance, it does not have legislative effect and does not provide the certainty that legislation does. That is why we have done so via this Bill.

Amendment 7 to Clause 3 would undermine the broader consent concept for scientific research. Clause 3 places the existing concept of “broad consent” currently found in recital 33 to the UK GDPR on a statutory footing with the intention of improving awareness and confidence for researchers. This clause applies only to scientific research processing that is reliant on consent. It already contains various safeguards. For example, broad consent can be used only where it is not possible to identify at the outset the full purposes for which personal data might be processed. Additionally, to give individuals greater agency, where possible individuals will have the option to consent to only part of the processing and can withdraw their consent at any time.

Clause 3 clarifies an existing concept of broad consent which outlines how the conditions for consent will be met in certain circumstances when processing for scientific research purposes. This will enable consent to be obtained for an area of scientific research when researchers cannot at the outset identify fully the purposes for which they are collecting the data. For example, the initial aim may be the study of cancer, but it later becomes the study of a particular cancer type.

Furthermore, as part of the reforms around the reuse of personal data, we have further clarified that when personal data is originally collected on the basis of consent, a controller would need to get fresh consent to reuse that data for a new purpose unless a public interest exemption applied and it is unreasonable to expect the controller to obtain that consent. A controller cannot generally reuse personal data originally collected on the basis of consent for research purposes.

Turning to Amendments 132 and 133 to Clause 26, the general rule described in Article 13(3) of the UK GDPR is that controllers must inform data subjects about a change of purposes, which provides an opportunity to withdraw consent or object to the proposed processing where relevant. There are existing exceptions to the right to object, such as Article 21(6) of the UK GDPR, where processing is necessary for research in the public interest, and in Schedule 2 to the Data Protection Act 2018, when applying the right would prevent or seriously impair the research. Removing these exemptions could undermine life-saving research and compromise long-term studies so that they are not able to continue.

Regarding Amendment 134, new Article 84B of the UK GDPR already sets out the requirement that personal data should be anonymised for research, archiving and statistical—RAS—purposes unless doing so would mean the research could not be carried through. Anonymisation is not always possible as personal data can be at the heart of valuable research, archiving and statistical activities, for example, in genetic research for the monitoring of new treatments of diseases. That is why new Article 84C of the UK GDPR also sets out protective measures for personal data that is used for RAS purposes, such as ensuring respect for the principle of data minimisation through pseudonymisation.

The stand part notice in this group seeks to remove Clause 6 and, consequentially, Schedule 2. In the Government’s consultation on data reform, Data: A New Direction, we heard that the current provisions in the UK GDPR on personal data reuse are difficult for controllers and individuals to navigate. This has led to uncertainty about when controllers can reuse personal data, causing delays for researchers and obstructing innovation. Clause 6 and Schedule 2 address the existing uncertainty around reusing personal data by setting out clearly the conditions in which the reuse of personal data for a new purpose is permitted. Clause 6 and Schedule 2 must therefore remain to give controllers legal certainty and individuals greater transparency.

Amendment 22 seeks to remove the power to add to or vary the conditions set out in Schedule 2. These conditions currently constitute a list of specific public interest purposes, such as safeguarding vulnerable individuals, for which an organisation is permitted to reuse data without needing consent or to identify a specific law elsewhere in legislation. Since this list is strictly limited and exhaustive, a power is needed to ensure that it is kept up to date with future developments in how personal data is used for important public interest purposes.

[Baroness Kidron (CB)]

I am interested that the safeguarding requirement is already in the Bill, so, in terms of children, which I believe the Minister is going to come to, the onward processing is not a question of safeguarding. Is that correct? As the Minister has just indicated, that is already a provision.

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[Viscount Camrose (Con)]

Just before we broke, I was on the verge of attempting to answer the question from the noble Baroness, Lady Kidron; I hope my coming words will do that, but she can intervene again if she needs to.

I turn to the amendments that concern the use of children’s data in research and reuse. Amendment 8 would also amend Clause 3; the noble Baroness suggests that the measure should not apply to children’s data, but this would potentially prevent children, or their parents or guardians, from agreeing to participate in broad areas of pioneering research that could have a positive impact on children, such as on the causes of childhood diseases.

On the point about safeguarding, the provisions on recognised legitimate interests and further processing are required for safeguarding children for compliance with, respectively, the lawfulness and purpose limitation principles. The purpose limitation provision in this clause is meant for situations where the original processing purpose was not safeguarding and the controller then realises that there is a need to further process it for safeguarding.

Research organisations are already required to comply with the data protection principles, including on fairness and transparency, so that research participants can make informed decisions about how their data is used; and, where consent is the lawful basis for processing, children, or their parents or guardians, are free to choose not to provide their consent, or, if they do consent, they can withdraw it at any time. In addition, the further safeguards that are set out in Clause 26, which I mentioned earlier, will protect all personal data, whether it relates to children or adults.

Amendment 21 would require data controllers to have specific regard to the fact that children’s data requires a higher standard of protection for children when deciding whether reuse of their data is compatible with the original purpose for which it was collected. This is unnecessary because the situations in which personal data could be reused are limited to public interest purposes designed largely to protect the public and children, in so far as they are relevant to them. Controllers must also consider the possible consequences for data subjects and the relationship between the controller and the data subject. This includes taking into account that the data subject is a child, in addition to the need to generally consider the interests of children.

Amendment 23 seeks to limit use of the purpose limitation exemptions in Schedule 2 in relation to children’s data. This amendment is unnecessary because these provisions permit further processing only in a narrow range of circumstances and can be expanded only to serve important purposes of public interest. Furthermore, it may inadvertently be harmful to children. Current objectives include safeguarding children or vulnerable people, preventing crime or responding to emergencies. In seeking to limit the use of these provisions, there is a risk that the noble Baroness’s amendments might make data controllers more hesitant to reuse or disclose data for public interest purposes and undermine provisions in place to protect children. These amendments could also obstruct important research that could have a demonstrable positive impact on children, such as research into children’s diseases.

Amendment 145 would require the ICO to publish a statutory code on the use of children’s data in scientific research and technology development. Although the Government recognise the value that ICO codes can play in promoting good practice and improving compliance, we 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 the new codes. Clause 33 of the Bill already includes a measure that would allow the Secretary of State to request the ICO to publish a code on any matter that it sees fit, so this is an issue that we could return to in the future if the evidence supports it.

[Baroness Kidron (CB)]

I will read Hansard very carefully, because I am not sure that I absolutely followed the Minister, but we will undoubtedly come back to this. I will ask two questions. Earlier, before we had a break, in response to some of the early amendments in the name of the noble Lord, Lord Clement-Jones, the Minister suggested that several things were being taken out of the recital to give them solidity in the Bill; so I am using this opportunity to suggest that recital 38, which is the special consideration of children’s data, might usefully be treated in a similar way and that we could then have a schedule that is the age-appropriate design code in the Bill. Perhaps I can leave that with the Minister, and perhaps he can undertake to have some further consultation with the ICO on Amendment 145 specifically.

[Viscount Camrose (Con)]

With respect to recital 38, that sounds like a really interesting idea. Yes, let us both have a look and see what the consultation involves and what the timing might look like. I confess to the Committee that I do not know what recital 38 says, off the top of my head. For the reasons I have set out, I am not able to accept these amendments. I hope that noble Lords will therefore not press them.

Returning to the questions by the noble Lord, Lord Clement-Jones, on the contents of recital 159, the current UK GDPR and EU GDPR are silent on the specific definition of scientific research. It does not preclude commercial organisations performing scientific research; indeed, the ICO’s own guidance on research and its interpretation of recital 159 already mention commercial activities. Scientific research can be done by commercial organisations—for example, much of the research done into vaccines, and the research into AI referenced by the noble Baroness, Lady Harding. The recital itself does not mention it but, as the ICO’s guidance is clear on this already, the Government feel that it is appropriate to put this on a statutory footing.

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Moved by

[Baroness Kidron]

10: After Clause 4, insert the following new Clause—
““Data community”In this Act, a “data community” means an entity established to facilitate the collective activation of data subjects’ data rights in Chapters III and VIII of the UK GDPR and members of a data community assign specific data rights to a nominated entity to exercise those rights on their behalf.”Member’s explanatory statement
This amendment provides a definition of “data community”. It is one of a series of amendments that would establish the ability to assign data rights to a third party.

[Baroness Kidron (CB)]

My Lords, I hope this is another lightbulb moment, as the noble Lord, Lord Clement-Jones, suggested. As well as Amendment 10, I will speak to Amendments 35, 147 and 148 in my name and the names of the noble Baroness, Lady Jones, and the noble Lord, Lord Clement-Jones. I thank them both. The purpose of these amendments is to move the Bill away from nibbling around the edges of GDPR in pursuit of post-Brexit opportunities and to actually deliver a post-Brexit opportunity.

These amendments would put the UK on an enhanced path of data sophistication while not challenging equivalence, which we will undoubtedly discuss during the Committee. I echo the voice of the noble Lord, Lord Allan, who at Second Reading expressed deep concern that equivalence was not a question of an arrangement between the Government and the EU but would be a question picked up by data activists taking strategic litigation to the courts.

Data protection as conceived by GDPR and in this Bill is primarily seen as an arrangement between an individual and an entity that processes that data—most often a commercial company. But, as evidenced by the last 20 years, the real power lies in holding either vast swathes of general data, such as those used by LLMs, or large groups of specialist data such as medical scans. In short, the value—in all forms, not simply financial—lies in big data.

As the value of data became clear, ideas such as “data is the new oil” and data as currency emerged, alongside the notion of data fiduciaries or data trusts, where you can place your data collectively. One early proponent of such ideas was Jaron Lanier, inventor of virtual reality; I remember discussing it with him more than a decade ago. However, these ideas have not found widespread practical application, possibly because they are normally based around ideas of micropayments as the primary value—and very probably because they rely on data subjects gathering their data, so they are for the boffins.

During the passage of the DPA 2018, one noble Lord counted the number of times the Minister said the words “complex” and “complicated” while referring to the Bill. Data law is complex, and the complicated waterfall of its concepts and provisions eludes most non-experts. That is why I propose the four amendments in this group, which would give UK citizens access to data experts for matters that concern them deeply.

Amendment 10 would define the term “data community”, and Amendment 35 would give a data subject the power to assign their data rights to a data community for specific purposes and for a specific time period. Amendment 147 would require the ICO to set out a code of conduct for data communities, including guidance on establishing, operating and joining a data community, as well as guidance for data controllers and data processors on responding to requests made by data communities. Amendment 148 would require the ICO to keep a register of data communities, to make it publicly available and to ensure proper oversight. Together, they would provide a mechanism for non-experts—that is, any UK citizen—to assign their data rights to a community run by representatives that would benefit the entire group.

Data communities diverge from previous attempts to create big data for the benefit of users, in that they are not predicated on financial payments and neither does each data subject need to access their own data via the complex rules and often obstructive interactions with individual companies. They put rights holders together with experts who do it on their behalf, by allowing data subjects to assign their rights so that an expert can gather the data and crunch it.

This concept is based on a piece of work done by a colleague of mine at the University of Oxford, Dr Reuben Binns, an associate professor in human-centred computing, in association with the Worker Info Exchange. Since 2016, individual Uber drivers, with help from their trade unions and the WIE, asked Uber for their data that showed their jobs, earnings, movements, waiting times and so on. It took many months of negotiation, conducted via data protection lawyers, as each driver individually asked for successive pieces of information that Uber, at first, resisted giving them and then, after litigation, provided.

After a period of time, a new cohort of drivers was recruited, and it was only when several hundred drivers were poised to ask the same set of questions that a formal arrangement was made between Uber and WIE, so that they could be treated as a single group and all the data would be provided about all the drivers. This practical decision allowed Dr Binns to look at the data en masse. While an individual driver knew what they earned and where they were, what became visible when looking across several hundred drivers is how the algorithm reacted to those who refused a poorly paid job, who was assigned the lucrative airport runs, whether where you started impacted on your daily earnings, whether those who worked short hours were given less lucrative jobs, and so on.

This research project continues after several years and benefits from a bespoke arrangement that could, by means of these amendments, be strengthened and made an industry-wide standard with the involvement of the ICO. If it were routine, it would provide opportunity equally for challenger businesses, community groups and research projects. Imagine if a group of elderly people who spend a lot of time at home were able to use a data community to negotiate cheap group insurance, or imagine a research project where I might assign my data rights for the sole purpose of looking at gender inequality. A data community would allow any group of people to assign their rights, rights that are more powerful together than apart. This is doable—I have explained how it has been done. With these amendments, it would be routinely available, contractual, time-limited and subject to a code of conduct.

As it stands, the Bill is regressive for personal data rights and does not deliver the promised Brexit dividends. But there are great possibilities, without threatening adequacy, that could open markets, support innovation in the UK and make data more available to groups in society that rarely benefit from data law. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I think this is a lightbulb moment—it is inspired, and this suite of amendments fits together really well. I entirely agree with the noble Baroness, Lady Kidron, that this is a positive aspect. If the Bill contained these four amendments, I might have to alter my opinion of it—how about that for an incentive?

This is an important subject. It is a positive aspect of data rights. We have not got this right yet in this country. We still have great suspicion about sharing and access to personal data. There is almost a conspiracy theory around the use of data, the use of external contractors in the health service and so on, which is extremely unhelpful. If individuals were able to share their data with a trusted hub—a trusted community—that would make all the difference.

Like the noble Baroness, Lady Kidron, I have come across a number of influences over the years. I think the first time many of us came across the idea of data trusts or data institutions was in the Hall-Pesenti review carried out by Dame Wendy Hall and Jérôme Pesenti in 2017. They made a strong recommendation to the Government that they should start thinking about how to operationalise data trusts. Subsequently, organisations such as the Open Data Institute did some valuable research into how data trusts and data institutions could be used in a variety of ways, including in local government. Then the Ada Lovelace Institute did some very good work on the possible legal basis for data trusts and data institutions. Professor Irene Ng was heavily engaged in setting up what was called the “hub of all things”. I was not quite convinced by how it was going to work legally in terms of data sharing and so on, but in a sense we have now got to that point. I give all credit to the academic whom the noble Baroness mentioned. If he has helped us to get to this point, that is helpful. It is not that complicated, but we need full government backing for the ICO and the instruments that the noble Baroness put in her amendments, including regulatory oversight, because it will not be enough simply to have codes that apply. We have to have regulatory oversight.

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[Baroness Kidron (CB)]

My Lords, I thank the co-signatories of my amendments for their enthusiasm. I will make three very quick points. First, the certain rights that the Minister referred to are complaints after the event when something has gone wrong, not positive rights. The second point of contention I have is whether these are so far-reaching. We are talking about people’s existing rights, and these amendments do not introduce any other right apart from access to put them together. It is very worrying that the Government would see these as a threat when data subjects put together their rights but not when commercial companies put together their data.

Finally, what is the Bill for? If it is not for creating a new and vibrant data protection system for the UK, I am concerned that it undermines a lot of existing rights and will not allow for a flourishing of uses of data. This is the new world: the world of data and AI. We have to have something to offer UK citizens. I would like the Minister to say that he will discuss this further, because it is not quite adequate to nay-say it. I beg leave to withdraw.

Amendment 10 withdrawn.