Data (Use and Access) Bill [HL]

Earl of Erroll Excerpts

Report stage
Tuesday 28th January 2025 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I too support this. I well remember the passage of the Computer Misuse Act, and we were deeply unhappy about some of its provisions defining hacker tools et cetera, because they had nothing about intention. The Government simply said, “Yes, they will be committing an offence, but we will just ignore it if they are good people”. Leaving it to faceless people in some Civil Service department to decide who is good or bad, with nothing in the Bill, is not very wise. We were always deeply unhappy about it but had to go along with it because we had to have something; otherwise, we could not do anything about hacking tools being freely available. We ended up with a rather odd situation where there is no defence against being a good guy. This is a very sensible amendment to clean up an anomaly that has been sitting in our law for a long time and should probably have been cleaned up a long time ago.

[Lord Clement-Jones (LD)]

My Lords, I support Amendments 47 and 48, which I was delighted to see tabled by the noble Lords, Lord Holmes and Lord Arbuthnot. I have long argued for changes to the Computer Misuse Act. I pay tribute to the CyberUp campaign, which has been extremely persistent in advocating these changes.

The CMA was drafted some 35 years ago—an age ago in computer technology—when internet usage was much lower and cybersecurity practices much less developed. This makes the Act in its current form unfit for the modern digital landscape and inhibits security professionals from conducting legitimate research. I will not repeat the arguments made by the two noble Lords. I know that the Minister, because of his digital regulation review, is absolutely apprised of this issue, and if he were able to make a decision this evening, I think he would take them on board. I very much hope that he will express sympathy for the amendments, however he wishes to do so—whether by giving an undertaking to bring something back at Third Reading or by doing something in the Commons. Clearly, he knows what the problem is. This issue has been under consideration for a long time, in the bowels of the Home Office—what worse place is there to be?—so I very much hope that the Minister will extract the issue and deal with it as expeditiously as he can.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I can only support what the noble Baroness, Lady Kidron, had to say. This is essentially unfinished business from the Online Safety Act, which we laboured in the vineyard to deliver some time ago. These amendments aim to strengthen Clause 123 and try to make sure that this actually happens and that we do not get the outcomes of the kind that the noble Baroness has mentioned.

I, too, have read the letter from the Minister to the noble Lord, Lord Bethell. It is hedged about with a number of qualifications, so I very much hope that the Minister will cut through it and give us some very clear assurances, because I must say that I veer back and forth when I read the paragraphs. I say, “There’s a win”, and then the next paragraph kind of qualifies it, so perhaps the Minister will give us true clarity when he responds.

[The Earl of Erroll (CB)]

My Lords, I wanted to add something, having spent a lot of time on Part 3 of the Digital Economy Act, which after many assurances and a couple of years, the Executive decided not to implement, against the wishes of Parliament. It worries me when the Executive suddenly feel that they can do those sorts of things. I am afraid that leopards sometimes do not change their spots, and I would hate to see this happen again, so Amendment 51 immediately appeals. Parliament needs to assert its authority.

Data (Use and Access) Bill [HL]

Earl of Erroll Excerpts

Report stage
Tuesday 28th January 2025 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I spoke on this before, and I will repeat what I said previously. The only way out of this one is to have two fields against someone: one that we will call “sex” and another that we will call “gender”. I will use the terminology of the noble Lord, Lord Lucas, for this. “Sex” is what you are biologically and were born, and that you cannot change. There are instances where we need to use that field, particularly when it comes to delivering medicine to people—knowing how you treat them medically—and, possibly, in other things such as sports. There are one or two areas where we need to know what they are biologically.

Then we have another field which is called “gender”. In society, in many cases, we wish that people did not have to go around saying that they are not what they were born but what they want to be—but I do not have a problem with that. We could use that field where society decides that people can use it, such as on passports, other documents and identity cards—all sorts of things like that. It does not matter; I am not worried about what someone wants to call themselves or how they want to present themselves to society.

Researchers will have the “sex” field, and they can carry out medical research— they can find out about all the different things related to that—and, societally, we can use the other field for how people wish to project themselves in public. That way we can play around with what you are allowed to use in what scenarios; it allows you to do both. What we need is two fields; it will solve a lot of problems.

[Lord Clement-Jones (LD)]

My Lords, it is clear that Amendment 67 in the name of the noble Lord, Lord Lucas, is very much of a piece with the amendments that were debated and passed last week. On these Benches, our approach will be exactly the same. Indeed, we can rely on what the Minister said last week, when he gave a considerable assurance:

“I can be absolutely clear that we must have a single version of the truth on this. There needs to be a way to verify it consistently and there need to be rules. That is why the ongoing work is so important”.—[Official Report, 21/1/25; col. 1620.]


That is, the work of the Central Digital and Data Office. We are content to rely on his assurance.

Data (Use and Access) Bill [HL]

Earl of Erroll Excerpts

Report stage
Tuesday 21st January 2025 Lords Chamber

As for the approach of these Benches to the amendments tabled by the noble Lords, Lord Lucas and Lord Arbuthnot, I have some sympathy for the desire for accuracy in the records covered by digital identity services, and I hope the Government will be able to give assurances about that. However, we do not wish to turn this into a battle and a culture war opportunity, so we will not be supporting the noble Lords if they push them to a vote.

[The Earl of Erroll (CB)]

My Lords, I very much support the amendments from the noble Lords, Lord Lucas and Lord Arbuthnot, particularly Amendment 6, about accuracy. It has become apparent—and Committee stage was interesting—that there is a challenge with having gender and sex as interchangeable. The problem becomes physical, because you cannot avoid the fact that you will react differently medically to certain things according to the sex you were born and to your DNA.

That can be very dangerous in two cases. The first case is where drugs or cures are being administered by someone who thinks they are treating a patient of one sex but they are actually a different sex. That could kill someone, quite happily. The second case is if you are doing medical research and relying on something, but then find that half the research is invalid because a person is not actually that sex but have decided to choose another gender. Therefore, all the research on that person could be invalid. That could lead to cures being missed, other things being diagnosed as being all right, and a lot of dangers.

As a society, we have decided that it will be all right for people to change gender—let us say that, as I think it is probably the easiest way to describe it. I do not see any problem with that, but we need critical things to be kept on records that are clearly separate. Maybe we can make decisions in Parliament, or wherever, about what you are allowed to declare on identity documents such as a passport. We need to have two things: one is sex, which is immutable, and therefore can help with all the other things behind the scenes, including research and treatments; the other is gender, which can be what you wish to declare, and society accepts that you can declare yourself as being of another gender. I cannot see any way round that. I have had discussions with people about this, and as one who would have said that this is quite wrong and unnecessary, I was convinced by the end of those discussions that it was right. Keeping the two separate in our minds would solve a lot of problems. These two amendments are vital for that.

I agree in many ways with the points from the noble Lord, Lord Clement-Jones. Just allowing some of these changes to be made by the stroke of a pen—a bit like someone is doing across the Atlantic—without coming to Parliament, is perhaps unwise sometimes. The combined wisdom of Parliament, looking at things from a different point of view, and possibly with a more societal point of view than the people who are trying to make systems work on a governmental basis, can be sensible and would avoid other mistakes being made. I certainly support his amendments, but I disagree entirely with his last statement where he did not support the noble Lords, Lord Lucas and Lord Arbuthnot.

[Viscount Camrose (Con)]

I thank my noble friend Lord Lucas for introducing this group and for bringing these important and sometimes very difficult matters to the attention of the House. I will address the amendments slightly out of order, if I may.

For digital verification services to work, the information they have access to and use to verify documents must be accurate; this is, needless to say, critical to the success of the entire scheme. Therefore, it is highly sensible for Amendment 8 to require public authorities, when they disclose information via the information gateway, to ensure that it is accurate and reliable and that they can prove it. By the same measure, Amendment 6, which requires the Secretary of State to assess whether the public authorities listed are collecting accurate information, is equally sensible. These amendments as a pair will ensure the reliability of DVS services and encourage the industry to flourish.

I would like to consider the nature of accurate information, especially regarding an individual’s biological sex. It is possible for an individual to change their recorded sex on their driving licence or passport, for example, without going through the process of obtaining a gender recognition certificate. Indeed, a person can change the sex on their birth certificate if they obtain a GRC, but many would argue that changing some words on a document does not change the reality of a person’s genome, physical presentation and, in some cases, medical needs, meaning that the information recorded does not accurately relate to their sex. I urge the Minister to consider how best to navigate this situation, and to acknowledge that it is crucially important, as we have heard so persuasively from the noble Earl, Lord Errol, and my noble friends Lord Arbuthnot and Lord Lucas, that a person’s sex is recorded accurately to facilitate a fully functioning DVS system.

The DVS trust framework has the potential to rapidly transform the way identities and information are verified. It should standardise digital verification services, ensure reliability and build trust in the concept of a digital verification service. It could seriously improve existing, cumbersome methods of verifying information, saving companies, employers, employees, landlords and tenants time and money. Personally, I have high hopes of its potential to revolutionise the practices of recruitment. I certainly do not know many people who would say no to less admin. If noble Lords are minded to test the opinion of the House, we will certainly support them with respect to Amendments 6 and 8.

With the greatest respect to the noble Lord, Lord Clement-Jones, I think it is a mistake to regard this as part of some culture war struggle. As I understand it, this is about accuracy of data and the importance, for medical and other reasons, of maintaining accurate data.

All the benefits of DVS cannot be to the detriment of data privacy and data minimisation. Parliament is well-practised at balancing multiple competing concepts and doing so with due regard to public opinion. Therefore, Amendment 7 is indeed a sensible idea.

Finally, Amendment 9 would require the Secretary of State to review whether an offence of false use of identity documents created or verified by a DVS provider is needed. This is certainly worth consideration. I have no doubt that the Secretary of State will require DVS providers to take care that their services are not being used with criminal intent, and I am quite sure that DVS service providers do not want to facilitate crimes. However, the history of technology is surely one of high-minded purposes corrupted by cynical practices. Therefore, it seems prudent for the Secretary of State to conduct a review into whether creating this offence is necessary and, if it is, the best way that it can be laid out in law. I look forward to hearing the Minister’s comments on this and other matters.

--- Later in debate ---

[Lord Lucas (Con)]

My Lords, the regulator quite clearly needs a standard against which to judge. Public interest is the established one in FOI, medicine and elsewhere. It is the standard that is used when I apply for data under the national pupil database—and quite right too. It works well, it is flexible, it is well understood and it is a decent test to meet. We really ought to insist on it today.

[The Earl of Erroll (CB)]

My Lords, I want to add very quickly that we have got a problem here. If someone did take all this private data because we did not put this block on them, and they then had it, it would probably become their copyright and their stuff, which they could then sit on and block other people getting at. This amendment is fairly essential.

[Lord Markham (Con)]

Like the noble Lord, Lord Clement-Jones, I am not going to try to better the excellent speech made by the noble Viscount, Lord Colville.

We debated at much length in Committee the definition of the scientific interest, as it will dictate the breadth of the consent exemption for the data reused. If it is too broad, it could allow data companies—I am thinking specifically of AI programs—to justify data scraping without obtaining consent, should they successfully argue that it constitutes scientific research. However, should we create too narrow a definition, we could stifle commercial research and innovation. This would be disastrous for economic growth and the UK science and technology sector, which is one of our most dynamic sectors and has the potential to become one of the most profitable. We should be looking to support and grow, not hinder. Finding the happy medium here is no small feat, but the amendment tabled by the noble Viscount, Lord Colville of Culross, goes a long way towards achieving this by threading the needle.

By requiring the research to be in the public interest to qualify for the consent exemption for data reuse, we will prevent companies cloaking purely commercial activities for their own ends in the guise of scientific research, while allowing commercial research which will benefit the general public.

This particularly chimes with my time as Health Minister, when we tried to ensure that we could bring the public with us on the use of their health data. We did a lot of focus groups on all of this, and we found that we could have very widespread—70%-plus—public support if we could demonstrate that there really was a medical research benefit from all of this. This amendment is very much in keeping with that. As I say, it threads the needle. That is why we will be strongly supporting the amendment tabled by the noble Viscount, Lord Colville, and we hope he is minded to put the matter to a Division.

Artificial Intelligence (Regulation) Bill [HL]

Earl of Erroll Excerpts

2nd reading
Friday 22nd March 2024 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I entirely agree with those last sentiments, which will get us thinking about what on earth we do about this. An awful lot of nonsense is talked, and a lot of great wisdom is talked. The contributions to the debate have been useful in getting people thinking along the right lines.

I will say something about artificial general intelligence, which is very different, because it may well aim to control people or the environment in which we live, rather than generative AI or large language models, which I think people are thinking of: ChatGPT, Llama, Google Gemini, and all those bits and pieces. They are trawling through large amounts of information incredibly usefully and producing a good formatted epitome of what is in there. Because you do not have time to read, for instance, large research datasets, they can find things in them that you have not had time to trawl through and find. They can be incredibly useful for development there.

AI could start to do other things: it could control things and we could make it take decisions. Some people suggest that it could replace the law courts and a lot of those sorts of things. But the problem with that is that we live in a complex world and complex systems are not deterministic, to use a mathematical thing. You cannot control them with rules. Rules have unintended consequences, as is well known—the famous butterfly effect. You cannot be certain about what will happen when you change one little bit. AI will not necessarily be able to predict that because, if you look at how it trains itself, you do not know what it has learned—it is not done by algorithm, and some AI systems can modify their own code. So you do not know what it is doing and you cannot regulate for the algorithms or any of that.

I think we have to end up regulating, or passing laws on, the outcomes. We always did this in common law: we said, “Thou shalt not kill”, and then we developed it a bit further, but the principle of not going around killing people was established. The same is true of other simple things like “You shan’t nick things”. It is what comes out of it that matters. This applies when you want to establish liability, which we will have to do in the case of self-driving cars, for instance, which will take over more and more as other things get clogged up. They will crash less, kill fewer people and cause fewer accidents. But, because it is a machine doing it, it will be highly psychologically unacceptable—with human drivers, there will be more accidents. There will have to be changes in thought on that.

Regulation or legislation has to be around the outcomes rather than the method, because we cannot control where these things go. A computer does not have an innate sense of right and wrong or empathy, which comes into human decisions a lot. We may be able to mimic it, and we could probably train computers up on models to try to do that. One lot of AI might try to say whether another lot of AI is producing okay outcomes. It will be very interesting. I have no idea how we will get there.

Another thing that will be quite fun is when the net-zero people get on to these self-training models. An LLM trawling through data uses huge amounts of energy, which will not help us towards our net-zero capabilities. However, AI might help if we put it in charge of planning how to get electricity from point A to point B in an acceptable fashion. But on the other hand people will not trust it, including planners. I am sorry—I am trying to illustrate a complex system. How on earth can you translate that into something that you can put on paper and try to control? You cannot, and that is what people have to realise. It is an interesting world.

I am glad that the Bill is coming along, because it is high time we started thinking about this and what we expect we can do about it. It is also transnational—it goes right across all borders—so we cannot regulate in isolation. In this new interconnected and networked world, we cannot have a little isolated island in the middle of it all where we can control it—that is just not going to happen. Anyway, we live in very interesting times.