Data (Use and Access) Bill [HL]

Debate between Baroness Ludford and Baroness Butler-Sloss

Consideration of Commons amendments and / or reasons
Monday 12th May 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I wonder if I could go back to the wording proposed under Motion 52A. The whole purpose of it is limited. From a very practical and basic point of view, once the Supreme Court has told us that biological sex is to rule, the points that the noble Viscount, Lord Hailsham, makes, which I entirely understand and sympathise with, really do not arise in this issue. If we are to have data, the data must be accurate. The only point that I am asking your Lordships’ House to consider—this is what the noble Viscount, Lord Camrose, is asking—is:

“For the purposes of this section, sex data must be collected in accordance with the following category terms and definitions”.


That seems eminently sensible. If we do not have it, I see real problems of a different sort from those that the noble Viscount, Lord Hailsham, has raised.

[Baroness Ludford (LD)]

My Lords, I wish to speak to Motions 32A and 52A which, as the noble and learned Baroness, Lady Butler-Sloss, said, appear eminently sensible.

The Minister—to whom I am also grateful for the meeting that I was able to join—assured us that we can trust the digital verification services because they will be based on the data accuracy principle of the GDPR, but that principle has been in place for a decade during which, as Professor Alice Sullivan recounted in her important report that the Minister welcomed earlier, statistics have become utterly muddled and confused. That is particularly so in this area, because sex and gender identity have been collected and conflated in a single data field such that the meaning of sex has been obscured.

I welcome the Minister’s support for the Supreme Court judgment, but, as he said, that judgment confirmed that sex in the Equality Act can only mean and has only ever meant biological sex. However, that has been the case for 15 years, during which all this muddle has taken place. The Minister tells us that we can trust the Government to respect the judgment and to reject the amendments but, before considering that, can he answer a few questions?

First, why is it not appropriate to ensure that in this Bill, on data use and access and which specifically talks about a digital verification system, unreliable datasets are not used for digital verification? If it is not in this timely data legislation, then when? The Minister referred to the forthcoming Equality and Human Rights Commission guidance, but I suggest that we do not have to wait for that guidance in this area. We have this Bill, this vehicle, and it is surely appropriate to enshrine everything that the Minister said in this legislation.

Secondly, have the Government considered how the digital verification system will work with regard to an estimated 100,000 people who have a different record for their sex across different public bodies—for example, the birth register, Passport Office, driving licence authority and NHS? How is that going to pan out? How will the Government ensure that this mixed data, such as so-called passport sex, is not relied on as an authoritative source to provide an answer to the sex question in the DVS? I respect the concerns that the noble Viscount, Lord Hailsham, rightly raised; my point is how we will ensure that the data verified for the sex field in the DVS, irrespective of any other field, is accurate and corresponds to biological sex.

Will the Government publish clear guidance for data users so that they know which sources of sex data can be trusted and which remain conflated? How will they put technical measures in place to ensure that unreliable sources do not come through the information gateway? Is it impossible that a person who expresses themselves as gender fluid or non-binary could have two different digital verification services apps—one that shows them as female and the other as male, but both bearing the digital verification trust mark? That may not seem terribly common, but it is a possibility for which we need an answer.

Finally, the Government have argued that it is very unlikely that digital verification services will be used for applications such as single-sex services. The point was well made about a woman who wants a woman healthcare provider and health screening—by the way, that is also important for trans people to make sure that they are appropriately treated in services such as health. If the aim of the DVS is to provide trusted, interoperable, reusable digital identities that people can use to prove facts about themselves, is it not likely that this will be used in the services spoken about in the Supreme Court judgment and which advised should legitimately be kept as single sex and based on biological sex?

If the Government do not like these amendments from the noble Viscount, Lord Camrose, but they agree with their aim, I cannot honestly see why the Minister should object to enshrining them in more than the data accuracy principle, which, as I have said, has been, in the last decade, respected more in the breach than in the reality. I am not yet reassured that his assurances, as much as I respect his personal sincerity and integrity, are enough for us to rely on, as opposed to having something on the statute book.