Digital Government (Disclosure of Information) Regulations 2018

Lord Clement-Jones Excerpts

Monday 25th June 2018 Lords Chamber

We worked with other government departments, the devolved Administrations and the Information Commissioner’s Office, as well as civil society groups with privacy interest, in developing the codes. All five instruments were subject to a six-week public consultation in the autumn of 2017 ahead of their being laid in May this year. They were also made available in draft form to parliamentarians to consider during the Committee stage of the Digital Economy Bill in November 2016. These efforts helped to ensure that the right balance was struck between supporting practitioners to ensure that they are able to make use of the powers, and building in safeguards to protect individuals’ privacy and prevent the unlawful disclosure of data. I commend these regulations and codes of practice to the House, and I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I start with an apology. Because of the way in which these items of business have been scheduled—or perhaps I should say not scheduled—I might have to leave before I hear the Minister’s response. He is aware of that and I am very grateful for his indulgence in that respect, which will make me feel even guiltier when he hears what I have to say.

I am indebted to medConfidential for many of the points I shall make and to the noble Lord, Lord Freyberg, who takes a keen interest in these matters but cannot be present today.

The essence of what I have to say is that these regulations and codes should be withdrawn. In summary, earlier this month the Secondary Legislation Scrutiny Committee published a report on these draft regulations made under Part 5 of Chapter 1 of the Digital Economy Act, as the Minister explained. The DCMS offered assurances that the codes of practice were consistent with each other and drafted to be compliant with the new Data Protection Act 2018 and the latest standards of best practice. However, subsequently it replaced the standards with a new set under a different name—the data ethics framework—so the codes as laid do not reflect current DCMS guidance. In our view, this invalidates the whole of our debate.

I will go through the details. The Secondary Legislation Scrutiny Committee drew the digital government regulations to the special attention of the House. The DCMS told the committee that the codes were to

“the latest standards of best practice for information sharing, including the ‘Data Science Ethical Framework’”.

That is at paragraph 9 of the committee’s report. As the SLSC says:

“In their response, DCMS have also offered assurances that these codes of practice are consistent with each other and have been drafted to be compliant with the new Data Protection Act 2018 and the latest standards of best practice for information sharing, including the ‘Data Science Ethical Framework’”.


The committee’s report was finalised on a Tuesday and printed the following Thursday. On the Wednesday, the DCMS replaced the “latest” standards with a new set under a different name, the data ethics framework. Quite apart from the concerns raised by the committee, when the DCMS gave its response to the committee it surely must have known that a new framework was due the following day to replace the one to which it referred, and that its assurances would therefore be untrue even before they were printed.

The current codes reference the Data Science Ethical Framework, which predates the Data Protection Act and the GDPR. By that fact alone, these DCMS codes cannot be approved. They are, by definition, out of date following legislation on which the DCMS and the Minister himself led.

As the Minister described, a number of groups were consulted on the draft codes in the middle of last year, and while there is consensus from all sides that the codes are improved as a result of that constructive engagement, those consultations were before the Government surprised everyone with the proposal for a “framework for data processing by government” in the Data Protection Act—before the guidance changes due to the GDPR had fully begun, before the Government announced that the Data Science Ethical Framework was in need of replacement, and certainly before the DCMS launched the replacement with a new name last week. The department assured Parliament that,

“these codes of practice are consistent with each other”,

but it cannot assert they will be compliant with other codes, as yet unlaid and unwritten by the Information Commissioner. What the Information Commissioner does should be up to the Information Commissioner. She should not have her hands tied by her sponsor department.

It is particularly important that these codes and the regulations are withdrawn given that the first issuance of the codes is under the affirmative procedure for approval of the House and future updates will be under the negative procedure.

I have a few other questions. Where is the framework for data processing by government included at the last minute by Ministers in Committee on the Data Protection Bill? There is still no clarity as to what the Government plan to do with it, only that it is not the Data Science Ethical Framework nor the data ethics framework. It is, however, yet another government data framework that must be taken into account. The passage of the Data Protection Act 2018 necessitates updates to many ICO codes. Late in the day, the DCMS chose to introduce its new framework for data processing by government, which surely must be the governing instrument for these codes, but, as I said earlier, it has provided no clarity on how this will operate.

The department seems to be offering nothing other than assurances of compliance when one looks through the codes. It talks of consultation with the ICO. Has the ICO confirmed publicly that these codes are compliant with the GDPR, the new Data Protection Act and the ICO guidance?

According to recent announcements from University College London Hospitals NHS Foundation Trust, it is conducting artificial intelligence trials internally for issues of direct benefit to it. This shows not only that the NHS is beginning to understand the power of data and digital tools, but that this can be done in-house for public benefit and that there are viable alternatives to handing data to and sharing data with multinational companies. What are the Government doing more broadly across the NHS to ensure that there is full recognition across the NHS?

The Digital Economy Act affords the Secretary of State considerable powers to make use of publicly controlled data, which is of considerable concern in some quarters. The key concern is the scope for different departments to share and then link datasets, such as sharing health data from the Department of Health and Social Care with the Home Office to identify illegal immigrants, as stated in recent headlines. What is the scope and/or limitation for the Secretary of State to share publicly controlled data with private entities? Is this likely to inform the introduction of so-called “data trusts”?

Then, of course, there is the question of whether any of the codes is fit for the future in terms of technology. In particular, what are the duties of transparency and explainability where datasets are used to construct artificial intelligence solutions, algorithms and the like for government purposes? What consultation was engaged in this respect? There appears to be no reference in any of the codes to this. Should we not wait for the data ethics and innovation centre to give its guidance on these matters involving the Government and their deployment of artificial intelligence?

In the light of the above, it is clear that neither these regulations nor the codes are fit for purpose. Will the Government withdraw them before placing replacement codes before the House? Will the Minister confirm that the codes will be compliant with any yet-to-be-written Information Commissioner codes? Will they be confirmed as such by the Information Commissioner? Sadly, I will not hear the Minister’s reply but I very much hope that it is a full one.

[Lord Griffiths of Burry Port (Lab)]

My Lords, far be it from me to get the Minister off that hook. It is always humbling to be in the presence of those who have seen the heat of the day and borne the burdens of bringing some complicated pieces of legislation on to our statute book. Perhaps we can all breathe a sigh of relief as we notice the noble Lord, Lord Clement-Jones, depart from his place.

I will restrict my remarks, since I was not in possession of the briefing that the noble Lord had, to the observations I made on the simple basis of reading these papers. It was a jolly weekend and some good bedtime reading—150 pages on a very complicated matter—but as far as the regulations themselves are concerned, it seemed mildly reassuring that multiple disadvantages, such as television retuning, fuel poverty and water poverty, were all to be held in view with a view to ensuring that people who might suffer in these areas had their suffering minimised as far as possible. One million vulnerable energy consumers might qualify for help. From this side of the House, we cannot particularly grumble at that.

The thing that worried me was that, since these are the first tinkerings with or things that ensue from last year’s Digital Economy Act, it is incumbent on us to ensure we monitor very carefully the direction of travel as the Act lives its life and is implemented. For that reason, I find myself again and again wondering whether—while, yes, three years down the line it all has to be embedded and to work itself out—we should not promise ourselves a bit more micromanagement than that as things go along.

I liked the way that liaison with devolved bodies—to ensure that a UK-wide measure is implemented in Wales and Scotland in a way consistent with legal provision—was set out because, with another hat on, when we were arguing the devolution clauses in the EU withdrawal Bill we talked all the time about frameworks within which UK-wide pieces of action would have to be worked out in consultation with, and with consent from, the various interested parties. Here is a lived example, I thought, of how that might work.

I worried about how on earth we would keep together pieces of action that would see nine departments of state share information across their boundaries, as well as the Revenue and 32 local and regional bodies, as we considered how best legitimately to allow these bodies to share information. What kind of computer system do we have in place? We have had such a string of unfortunate experiences of supportive technology for mountainous pieces of government activity going wrong that I just look at this and am glad that it is not me operating it.

Data Protection Bill [HL]

Lord Clement-Jones Excerpts

Monday 14th May 2018 Lords Chamber

Article 34 of the GDPR requires data controllers to communicate a personal data breach to a data subject if it is likely to result in a high risk to the rights and freedoms of natural persons. Since the Bill left your Lordships’ House we have had further representations about cases where a person is the subject of an ongoing investigation. This requirement could alert that person to the investigation. To avoid this, Commons Amendments 16, 17, 173 and 192 would add article 34 to the list of GDPR provisions that may be disapplied by paragraphs 2 and 24 of Schedule 2. Importantly, data controllers will still be required to notify the Information Commissioner of breaches under article 33 and could be liable to enforcement action if they fail adequately to protect personal data. On that basis, I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for that lucid exposition. When one has 282 amendments from the Commons, which I think is fairly unusual after the Lords have worked on a Bill, we find that the Commons have made many improvements, with one or two notable exceptions that no doubt we will come to in later groups. I welcome Amendments 8, 9 and 10 in particular, and Amendment 12. I heard what the Minister said in caveating the intended extent of the amendment. I very much hope that it will have the effect he hopes for. The automated decision-making provisions have to be in line with the GDPR, so it is clearly necessary to amend the Bill in that respect, but I generally welcome this group of amendments.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I too welcome this group of amendments. First, on Amendments 8, 9 and 10, I recall the debate led by the noble Lord, Lord Marlesford, who is not in his place at the moment. He talked about his experience of the parish council in his area, explaining that a part-time clerk did a couple of days a week and it was impossible. He made his case well and I am happy to support him in it. I am glad to see that the Government have listened. I also believe that many Members on all sides of the House in the other place made similar points. I thank the Government very much for that.

I am very pleased with Amendment 12. We, with the Liberal Democrats, raised this issue during a debate in this House. We could not get it all agreed before it left to go to the other place but I had two very positive meetings with Matt Hancock and Margot James. The noble Lord, Lord McNally, also came along to our other meetings and the noble Lord, Lord Hayward, from the Conservative Benches, was also involved. We got to a good place. Nobody from any party thought that this issue should not be properly recognised in legislation. I am very pleased that the Minister and his colleagues have listened to us.

The Minister is of course right that technology changes all the time. We have no idea what we will be doing in four or five years’ time. Things move so fast now, so it is good that our legislation is written to take that into account. I was also pleased to hear the Minister say that the Government intend to consult and work with the Parliamentary Parties Panel, which is very important. It is a statutory body, set up in the PPERA 2000, where practitioners from all political parties can come together and talk with both the Electoral Commission and Cabinet Office officials. It really is the body where the people who know what they are talking about can come together. I sat on the body for many years and there was a lot of agreement among party officials about what needs to be done. I am glad that the Government will do it and I am pleased with what has come forward today.

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These amendments were developed in close liaison with the Information Commissioner. We are confident that they will give her the powers she needs to ensure that those who flout the law in our increasingly digital age are held to account for their actions. I beg to move.

[Lord Clement-Jones]

My Lords, I thank the Minister for his explanation. In many ways, when these clauses came to the House we missed a trick; I do not think we quite understood at the time that the Information Commissioner did not have adequate powers. It was rather a sorry sight to see the Information Commissioner hanging around for several days outside Cambridge Analytica waiting to be allowed to enter and inspect, so these amendments are extremely welcome—as, of course, is the new criminal offence the Minister mentioned.

I will say one thing: it is not entirely clear whether these powers are on all fours with, for instance, the Competitions and Markets Authority, Ofcom, Ofgem, and so on, in terms of the ability to make a dawn raid. I have looked at it but it is not entirely clear that that is possible. Clearly, in the current circumstances, the misuse of data is an extremely important aspect. It would be very interesting to hear from the Minister whether at the end of the day these are modelled on the other regulators. Does the Information Commissioner have very similar powers, and is a dawn raid available to her? Given that there are safeguards in the Bill—a warrant from the High Court and so on—that would be desirable. We have discovered that it is important for the Information Commissioner, as a result of the Cambridge Analytica scandal, to have all the powers necessary.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I associate myself with what has just been said by the noble Lord, Lord Clement-Jones, and I agree with the Minister that this is a welcome step forward. I have three minor points to put to him and I shall ask a question about the powers at the end. He said several times that he had had conversations with and was in agreement with the ICO about the powers that were taken. Following up on what the noble Lord, Lord Clement-Jones, said, has the ICO agreed that these powers are what she asked for and will achieve what she aims to do in cases such as that of Cambridge Analytica?

Secondly, what are they modelled on? I have had the benefit of a conversation with the Bill team and the Minister on this and I think the answer to the question of whether they are modelled on the Competition and Markets Authority’s powers is that they are coming from slightly different directions. It is not necessary that the powers should be exactly the same, but I think the answer is that they were broadly what was envisaged for the CMA when it was set up and therefore appropriate for the powers required by the ICO. Can the Minister confirm that is the case?

My third question is one that we have explored at length in Committee and on Report. Given these new duties and responsibilities, which are substantial and will have to be exercised with great care but will add a burden to its existing work—as was laid out in the Bill when we saw it in this House some time ago—will the resources be available to the ICO to carry out that work? If not, what will the Government do about that? This bears particularly on the question of staff and staff capacity because, as the Minister says, we are talking about the cutting edge of technology.

My final point is that we are legislating in haste. There is no reason why we should be suspicious of that but it was done very quickly and there was not as much scrutiny as one would have wished, in either this House or the other place. I was not able to find this in the Bill itself, but can the Minister confirm whether, should it turn out that these powers are not as well drafted or well expressed as they could be, he has the powers to go back and amend them through the appropriate procedures in due course, should that be necessary?

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support Amendments 53A and 53B, tabled by the noble Lord, Lord Mitchell.

I must express my general frustration at the Bill. There is so much information, so much data of national significance that, it is clear, will be abused by the Government, whether or not they know that they are doing so. The Windrush scandal showed just how badly the Home Office gets things wrong, and the Bill’s provisions allow the sharing of people’s data which would further the “hostile environment” policy. I am very disappointed that the Government have not tabled amendments to curtail the broad powers in the Bill that will allow for such abuse.

There are so many cases of people who are victims of serious crime—of rape, violence and people trafficking—who are being reported by the police to the Home Office and then being arrested, detained and deported. At least 27 police forces have admitted that they do this. Ministers cannot possibly claim to be learning from those instances, just as they appear not to have learned from Windrush, while they continue to include such cruel and intrusive powers in the Bill. The fact that the Government can get things so horribly wrong is why the amendment should be included.

We have heard that data is more valuable than oil. It is more valuable than oil or gold. It is the boom industry of our times, and the temptation for government to allow its exploitation by the commercial sector—the predatory big tech organisations to which the noble Lord, Lord Mitchell, referred—will be overwhelming, especially in this age of austerity when money appears to be so short.

This is not just an issue of exploitation in a negative sense: there are lots of opportunities for government data to be used to empower communities. We can do things such as monitor air pollution and hold the Government to account by using this data. I am excited by those opportunities, but they need proper regulatory oversight to ensure that data is used for good. The control and processing of nationally important data must be properly overseen by the Information Commissioner and the National Audit Office. The Government recognised this in the Bill as drafted, and I do not understand why that has been removed—perhaps the Minister could explain.

I really hope that the Minister will support the amendments, but I rather suspect he will not.

[Lord Clement-Jones (LD)]

My Lords, on these Benches, we are very sympathetic to Amendments 53A and 53B. Like the noble Lord, Lord Mitchell, we find it difficult to understand why it has been impossible to come to some sort of agreement. I hear what the Minister said: that he is sympathetic, but not so sympathetic that he agrees with the amendments. This disagreement about whether a statutory code, guidance or whatever is the right way forward seems to be dancing on the head of a pin.

I pray in aid the intervening report of the AI Select Committee on precisely this matter, which supports the contentions of the noble Lord, Lord Mitchell. In our report, we stated:

“Increasingly, public sector data has value. It is important that public organisations are aware of the commercial potential of such data. We recommend that the Information Commissioner’s Office work closely with the Centre for Data Ethics and Innovation in the establishment of data trusts, and help to prepare advice and guidance for data controllers in the public sector to enable them to estimate the value of the data they hold, in order to make best use of it and negotiate fair and evidence-based agreements with private-sector partners”.


That seems fair and square along the lines proposed by the noble Lord, Lord Mitchell.

In the course of our inquiry, we also looked carefully at the sorts of arrangements made by DeepMind—not only the benefits, which he very fairly outlined, but the issues with how sharing that data was organised, which of course led to an investigation by the Information Commissioner’s Office. Of course, NHS data is particularly important in this context. In our report, we stated:

“The data held by the NHS could be considered a unique source of value for the nation. It should not be shared lightly, but when it is, it should be done in a manner which allows for that value to be recouped”.


So, fair and square, we are with the noble Lord, Lord Mitchell.

It would be somewhat ironic if the Secretary of State, in his response to our Select Committee in three or four weeks, said, “Yes, we agree: there should be something along these lines”, but we had missed the opportunity in this Bill.

[Lord Stevenson of Balmacara]

My Lords, we supported the amendments that my noble friend Lord Mitchell tabled in Committee and on Report, and we support him in his journey through this process. The issue is probably complicated by the fact that, had this Bill been delayed by a matter of months from now, we would probably find that this issue was bobbing up all over our public realm, where people are beginning to realise the value of the assets that they hold. To the extent of being a first mover, I think that my noble friend has probably suffered from that, but I hope that the Minister will show some sympathy and support for him.

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[Baroness Kidron (CB)]

I thank the Government for listening, the Bill team, the Secretary of State and the Minister, Margot James. The point is that rights are only as good as one’s ability to enact them, so I really welcome the review and I thank all concerned for the very great care and detail with which they have laid it out in the Bill.

[Lord Clement-Jones]

My Lords, very briefly, we had considerable debate while the Bill was going through the House on whether we should incorporate Article 18(2) and we obviously did not prevail while the Bill was going through this House. Although this does not go as far as incorporating Article 18(2), which I regret—I would clearly like to see the whole loaf, so to speak—at least this gives the possibility of Article 18(2) being incorporated through a review. Will the Minister say when he thinks the review will be laid, in the form of a report? I am assuming that,

“within 30 months of commencement of the Bill”,

means within 30 months from 25 May this year. I am making that assumption so that we can all count the days to when the report will come back for debate in Parliament.

[Lord Stevenson of Balmacara]

My Lords, the work done by the noble Baroness, Lady Kidron, in joining the dots, as it were, between the original proposal and having a proper approach to children using the internet and all the other things they use, and the way they would get redress if there is a problem, has been a joy to watch. She has stuck at it like a terrier, she has not let Ministers off the hook, she has been firing off emails and phone calls from faraway places and causing their lives to be an absolute misery, but it is a good thing because we have got to where we need to be.

As the noble Lord, Lord Clement-Jones, said, it was always a surprise that the Government did not want to include Article 18(2) as well as Article 18(1), because it completes the support for consumers of internet services, which the Bill sets out to do but for which there is a derogation and they have chosen not to exercise it. I am very glad about that, but perhaps the Minister can explain one thing that I did not quite get right in my mind as I was listening to him. The review is to check whether Article 18(2) would make it a more effective consumer measure than it is currently under the Bill as drafted—the Act, as it will be. It is not restricted to vulnerable people. The way it was expressed seemed to suggest that it would cover only other vulnerable people. In any case, children are not vulnerable: they are extremely interested, very wise and often sagacious about the internet but they are not vulnerable to it. They may well get themselves into vulnerable situations, in which case they need redress, through bodies such as child-specific agencies, but I do not think that was the intention. I would be grateful if that could be addressed.

Secondly, a moment of levity flashed through my mind when the Minister was talking about the need for the Inland Revenue to track down where reservists had got to. I cannot believe that is the only way the Ministry of Defence keeps in touch with its reserve, but I do not dissent from this being a very good measure.

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[Lord Pannick]

My Lords, I welcome Commons Amendment 188 on the confidentiality of legal advice. As the Minister knows, a concern has been raised, long after the 11th hour, about the position of arbitrators. The concern is that the Bill addresses the data protection obligations of judges and lawyers but does not address the data protection position of arbitrators. Arbitration is of course an important legal service, in which this country leads and provides services to the world. All I can do at this stage is to ask the Minister and the Bill team whether they will reflect on this concern, which has been raised not just with me but with him. If he thinks that there is any basis for concern, will he consider using the very extensive powers conferred under the Bill to bring forward regulations to address the issue?

[Lord Clement-Jones]

My Lords, as the Minister made clear in his lucid introduction, this is a really significant group of amendments. It is very good to see that some of the work that was done in this House has come back in the form of amendments. In particular, the Minister will remember that it was my noble friend Lord McNally who raised issues around Thomson Reuters in the first place. However, I know that there will be considerable pleasure in the financial services industry, which is very concerned about such things as money laundering, anti-corruption measures and so on, and making sure that it can process data in pursuance of achieving those important goals.

I congratulate the noble Baroness, Lady Neville-Jones, on her campaign, which has clearly borne fruit here. I had not heard what the noble Lord, Lord Pannick, had said but there seems to be a bit of a hole in the Bill if that is the case. I can certainly testify to the fact that arbitrators are an incredibly important part of our judicial system. Indeed, within it they are one of our global competitive advantages; therefore if anything is done that is to the detriment of our arbitration system, it would be really quite serious.

[Lord Stevenson of Balmacara]

My Lords, I too congratulate the Government on bringing forward these amendments. They cover a wide range but, as the noble Lord, Lord Clement-Jones, said, they are an important part of the actual mechanics and workings of the system once it is going. We will certainly need a few successes where people believe that something has been done to make sure that their lives are easier, rather than more difficult, as a result of this legislation. Even your Lordships’ House will suffer quite considerably in the processing tasks that it will have to carry. I seem to remember that, after an informal chat with the Minister, we were going to get a statement from him about how he felt about that and how things might progress. Maybe I am pushing him a little too far; perhaps we will get a letter or something about it later.

I echo the congratulations to the noble Baroness, Lady Neville-Jones, who fought an understated but effective campaign on an important area, which I am glad to see was picked up. I thought the diversity amendments were the sort of thing that could easily have been dropped off for being too complicated and difficult. This is possibly not the right Bill but it is really important that we got them in here. There could have been use made of some provisions by employers and others who did not want to face up to the reality of the world today, saying that they would not be able to process data in a way that would allow us to see whether progress has been made on this.

We on the Labour Benches were also consulted by Thomson Reuters, which felt that there was a bit of a lacuna in some things it was asked to do about money laundering. I am glad that the Bill team finally came round on that and agreed that there was something there. It brought forward a measure.

I am particularly pleased about safeguarding, which was quite a late addition to Committee. We brought it back on Report. It was obviously something that needed much wider consideration. Again, I wondered whether there would be time to bring it through. It has been possible to do so. We now have a very satisfactory approach to this. It covers not just sports, which was the area we raised, but the wider consideration of vulnerable people in clubs and in health and welfare situations where there needs to be consideration of what process and steps could be taken if suspicions were raised. We do not have to read the papers today to realise how damaging that can be if it is not caught quickly. We welcome the amendments.

Brexit: Digital Single Market

Lord Clement-Jones Excerpts

Tuesday 8th May 2018 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask Her Majesty's Government what assessment they have made of the United Kingdom’s ability to take advantage of the Digital Single Market and of country of origin principles for e-commerce once the United Kingdom leaves the European Union.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, I am delighted to see that, by including the phrase,

“once the United Kingdom leaves the European Union”,

in his carefully prepared Question, the noble Lord has confirmed from the Liberal Democrat Front Bench that we will be leaving the EU. The UK will not be part of the digital single market once we leave the EU. We are undertaking a comprehensive programme of analytical work looking at the implications of the UK’s exit from the EU. We are seeking input from a wide range of businesses, civil society groups and consumer bodies to inform our future trading agreement negotiations with the EU. This includes e-commerce.

[Lord Clement-Jones (LD)]

My Lords, recent CEBR estimates put the value of our digital exports in the creative industries alone at £21 billion, yet as the Minister has confirmed and the Prime Minister stated at the Mansion House on 2 March—indeed, the noble Lord, Lord Callanan, repeated it last week—

“the UK will not be part of the EU’s Digital Single Market”.

The Prime Minister went on to say:

“This is a fast evolving, innovative sector, in which the UK is a world leader. So it will be particularly important to have domestic flexibility, to ensure the regulatory environment can always respond nimbly and ambitiously to new developments”.


How on earth will that protect those digital exports? Or is this just another example of the Government whistling in the dark?

[Lord Ashton of Hyde]

My Lords, I completely agree with the noble Lord that the creative industries and digital are a very important part of our economy. We are the leaders in Europe—7.9% of our GDP is digital, with the next biggest, I think, being France, at 3.9%. We acknowledge that this has to be part of the wider negotiations on the single market. We are undertaking a great deal of analysis to make sure that we understand the implications of those negotiations.

Artificial Intelligence

Lord Clement-Jones Excerpts

Thursday 26th April 2018 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the Minister for repeating the Statement made earlier in the other place. We welcome it in its generality, although I have some comments about individual points. The most striking thing is that there is no reference in the Statement or the papers that accompany it to the excellent report recently published by your Lordships’ Select Committee on Artificial Intelligence. It may just be a case of the Government getting their retaliation in first. I hope not; I hope that in time they will respond positively and carefully to the various recommendations made by that excellent report and look forward to returning to the topic then.

AI clearly presents huge opportunities for the UK, and it is important that the Government are taking it seriously, as I think they are in the Statement. Responsibilities go with that initiative, as is evident in some of the points made, but I shall probe further on them.

On R&D spend, which is at the heart of the Statement, as reflected in the press statement issued jointly by DCMS and BEIS, the ambition is to get to 2.5% of GDP, with an eventual target, although it is not quantified, of more than 3%. Sweden, Austria, Germany, Belgium and Finland all have R&D expenditure of more than 2.5%, and South Korea spends more than 4% of GDP on R&D. If the UK really seeks to be a leader in AI and technology innovation, as we hope it does, why is the target so modest?

My second point is about the link back to young people and the school curriculum. It was suggested that the Government discouraged the independent review led by Professor Wendy Hall and Jérôme Pesenti from looking at the curriculum in primary and secondary schools, which you would think would be part of the process of trying to get our country as a whole geared up to do more across AI. If they were told that they could not go there because looking at the curriculum is very thorny and difficult, what on earth are the Government going to do about it? There is good news in the extra funding for teachers, but teachers do not create curricula; curricula have to be created in the wider context of education. I should be grateful if the Minister would comment on whether there is to be movement on that.

Also in education, there is the rather curious phrase that the Government are going to “create” 200 PhDs, as if they are something that you just print or issue, like coinage. Further reading and looking in more detail at other parts of the Statement should reveal that this will be funding for a welcome increase in the number of people taking PhD programmes. Presumably they will be independently offered by universities, not simply created by government diktat. However, are we not in the middle of a crisis of funding for higher education? Where in the Statement—I could not find it—is any reference to how the students will live on the additional PhDs that are being created? To narrow my question down, will the PhDs mentioned be part of the independent review of higher education, which is looking primarily at undergraduate courses but needs to look also at masters and PhD students?

We have looked at digital infrastructure time and again in this House, and each time the Minister has come to the Dispatch Box and talked about what progress has been made he has been met by a torrent of scepticism and concern that the reality is rather different from what the Government think. At the heart of this must be a commitment from the Government to get ahead of the rather unaspirational USO that they are about to introduce and go to fibre to the premises. FTTP broadband is the only way we can take the benefit of the technology, invest and get the returns that we will need as a country. We are so far behind the EU average on FTTP, which is 24% penetration. We are at about 2.7% penetration. Countries such as Portugal, Latvia and Lithuania have coverages of 86%, 85% and 81% respectively. What are the Government going to do about that? This will not get us to where we need to be.

On visas, there is a welcome suggestion that tier 1 numbers will be doubled, although that takes us to only 2,000—presumably per year. Will the Government reflect on whether that will be sufficient to reach the ambitions set out in the Statement?

I have two final points. In the Data Protection Bill, we have been concerned about whether sufficient resources and powers are available for the Information Commissioner to carry out her very responsible job of trying to ensure that we have a proper data regulatory structure. I understand that amendments are to be tabled that will increase the powers of the ICO, and look forward to discussing them when they reach the House—perhaps next week or the week after—but the question of resources is still open-ended. It seems that the Government will back and expand our AI activity. If that is the case, can they assure us that the additional resources required by the Information Commissioner’s Office will be provided at the appropriate time and that she will have the powers she needs?

Finally, on the very welcome news that the centre for data ethics and innovation is beginning to take shape and apparently has a budget of £9 million, what exactly is its current status? As I understand it, no legislative process has taken place, and I would be interested to know the timetable for that. Will the funding be limited to £9 million, or will other funds be available? More importantly, will it have a statutory position? The Government rightly pick up the need to ensure that all the work that is going on and is foreshadowed in the Statement will be effective for our economy, but it will be effective only if people trust that their data will not be abused and that there is appropriate understanding and a proper regulatory processes in place which engage with the ethical issues. We need a little more information on that. I should be grateful if the Minister could respond on when that will happen.

[Lord Clement-Jones (LD)]

My Lords, having immersed myself in the subject of AI for the past year, I am absolutely clear that there is complete cross-party consensus on the potential for AI in the UK. I welcome today’s sector deal, particularly the evidence of cross-departmental working, which underlies quite a lot of the work that is beginning to take place. I very much hope that today’s sector deal is simply the tip of the iceberg of the Government’s AI policy and ambition. I note that the Minister used the word “ambition”, and I very much hope that this is but the first in a number of steps that need to be taken.

I hope we will have a much more extensive debate when the Government’s response to our Select Committee report is issued in due course, because it covers so many aspects. As I see it, today’s sector deal is essentially a nailing down of the commitments made in the industrial strategy, the proposals in the Hall-Pesenti review and the commitments made in the last Budget. I should be very interested if the Minister could unpack how much actual new money is involved in today’s sector deal, because I see it essentially as a packaging up for the sector rather than a new, dramatic development.

There are many aspects of the sector deal to welcome, not least the role of the British Business Bank in helping finance AI developers, growth companies, and so on. I hope they will be given an even more important role in the future, and I hope they will not go the way of the Green Investment Bank, which is an absolute object lesson for the Government in this respect.

The Select Committee thought that the fundamentals of government policy were right but it was a question of scale, ambition, co-ordination and drive behind the policies of the new bodies involved. There are many examples of this. The noble Lord, Lord Stevenson, rightly mentioned infrastructure investment. When only 3% of the country is covered by ultra-fast broadband, a £1 billion investment is neither here nor there. It is a bit of encouragement but it will not move us very fast up the curve compared to our international competitors. Then again, the scale of the skills gap is absolutely huge. I know that there was some negotiation as part of the Hall-Pesenti review, but 200 new PhDs in AI, as mentioned by the noble Lord, Lord Stevenson—off-the-shelf or not—being initially financed is the absolute bare minimum required.

Then again, we are heavily dependent on skilled EU workers. A Brexit brain drain is already threatening the UK tech sector, which relies heavily on foreign talent from the EU. DeepMind is already setting up a laboratory in Paris because of that. We need overseas students to stay. Will the Government reinstate post-study work visas for graduates in STEM subjects who find suitable employment within six months of graduating? The noble Lord, Lord Stevenson, mentioned a doubling of tier 1 visas. That is very welcome but why do not the Government declare, as the Select Committee suggested, a shortage occupation in tier 2 for machine learning and computer skills? That might make a huge difference. Collaborative research with EU countries is at risk as well. How will we fill the gap post 2020?

As virtually every Select Committee witness told us, creative skills will be crucial in the mix as well. What are the Government doing to emphasise not just STEM but STEAM in our schools? There is a dangerous dropping off of arts and creative subjects already. But, of course, it is not simply about the opportunities, of which there are many, but mitigating the risks as well, and making sure that we retain and build public trust in the new technologies involved. Inclusion is of crucial importance in this context. A strong inclusion and diversity agenda ran through our Select Committee report, which has been welcomed. In particular, we need more women in digital roles to help fill the skills gap. What are the Government doing to develop a culture that is inclusive, respectful and encourages women to pursue careers in AI?

Ethics must likewise be moved forward. I hope that the Government move forward quickly with this via the Centre for Data Ethics and Innovation by convening an international conference and other forms of international collaboration. I include the EU in this. Yesterday it published its report, Artificial Intelligence for Europe. In that, the role of the Charter of Fundamental Rights is highlighted as being the instrument by which one could incorporate a code of ethics. This makes the vote on Monday doubly valuable and I hope the Government will take due note. That is a very helpful way of making sure that we have an ethical framework that could cover most European countries.

I could raise many issues, not least data, which the noble Lord, Lord Stevenson, mentioned. I hope the Government will be talking to the Competition and Markets Authority about issues such as data monopolies. I hope that, as the Data Protection Bill goes through the Commons, they will look at whether we have real strength, and whether Article 22 of the GDPR really gives us sufficient rights of explainability for autonomous decision-making, as I raised in this House.

Finally, it is about ambition. If the UK wants to be seen as a world leader in any aspect of AI development, it needs to move as quickly as other countries, such as Canada and France. It must set its ambitions high to be a global player. It must welcome talent in growing its AI industry from start-ups to the next level.

[Lord Ashton of Hyde]

My Lords, I am grateful for the many questions that I have to answer from the two noble Lords. I obviously should start by paying tribute to the committee of the noble Lord, Lord Clement-Jones. There was no reference to it in today’s Statement, and I take it as a compliment that the noble Lord, Lord Stevenson, thinks that DCMS works so quickly that we should include it in the sector deal a mere two or three weeks after it was published. I can say that we very much welcome the report. We thought it was a good piece of work and, in due course, we will provide a response. The report will help to inform actions going forward. It is important to understand that the sector deal today is only the beginning. When the noble Lord talks about the tip of the iceberg, that is very true. There are some things we intend to do, with facilities to make sure that they are monitored properly in the office of AI within the Government. I pay tribute to the noble Lord and his committee for that, and we will certainly look at that carefully.

Both noble Lords spoke of the skills gap. The noble Lord talked about Korea when referring to the 200 new PhDs, but we are not talking about North Korea; we are not just going to create 200 PhDs a year. They are proper PhDs that the Government will fund, leading to 1,000 government-funded extra PhDs by 2025. They are critical for the future but they are not the only areas in skills. The 200 have already been financed and there will be 450 by 2021 and 1,000 by 2025. They are starting in a phase-and-accelerating fashion in numbers per year.

Talking of skills and education, I accept, and have said before, that creativity is important. The Digital Catapult has identified the creative industries as one of the two high-profile potential areas for AI business growth in the UK. We understand that it is not simply a question of computer science, mathematics and such areas. To use the benefit of AI, we need creative minds. The businesses that already exist where we have a leading role in the world, have absolutely accepted that. One of the points of having the AI council is that it will bring together the Government, academia and the sectors to make sure that these points are raised at the highest level.

The noble Lord, Lord Stevenson, talked in particular about digital infrastructure and the commitment to fibre to the premises. We absolutely understand that we are behind many countries in fibre-optic connectivity. What he did not say is that we are ahead of Europe in superfast broadband by a long way, but we absolutely understand that we cannot be complacent. We are moving towards fibre to the premises. That is our goal and we absolutely accept that it needs to be done.

On visas, both noble Lords said that they welcomed the doubling of exceptional talent visas. They are for exceptionally talented people. We need to come to an understanding about the need for the new rules for immigration—luckily my noble friend from the Home Office is sitting here who will be very interested in this. The noble Lord, Lord Stevenson, talked about cross-government work on this, and the noble Lord, Lord Clement Jones, mentioned evidence. Our job is to make sure that the Home Office understands that when we come up with future Immigration Rules—we absolutely understand this is international business—we will need to have the best minds from around the world here. They will be attracted by our leading universities and the opportunities that will exist, and which this sector deal is trying to encourage.

The noble Lord, Lord Clement-Jones, talked about funding. When some of these things are mentioned, how much is actually new funding is a valid point. We have talked about just under £1 billion for this sector deal. Of this, about £600 million is new spending, and £342 million is existing spending that has either been repositioned or is in place already. Of that £600 million of new spending, about £300 million comes from the Government and, very encouragingly, £303 million from industry and the sector. For example, £35 million is from a Japanese venture capital company opening its first European HQ in the UK, £10 million is from Cambridge for the supercomputer, and there are others. About two-thirds is new money.

We absolutely accept that diversity is important, not only because it is the right thing to do, which it is, but because of all the talent we need to go forward. We have introduced the tech talent charter specifically to address that. Three weeks ago, I was at the G7 in Montreal talking about this and it resonated. In fact, we were held up in lights for it. We have 180 firms signed up and aim to have 500 by the end of the year. It is meaningful, and not just motherhood and apple pie about what we wish to do, because one of the things that firms sign up to is providing data centrally on the diversity aspects of their business so that we can compare and see that there is actual and meaningful progress. The charter will give organisations tangible actions and principles that they can adopt to become more gender-diverse.

I think that answers most of the questions. I am grateful for the broad welcome that both noble Lords have given.

Personal Data

Lord Clement-Jones Excerpts

Tuesday 17th April 2018 Lords Chamber

[Lord Ashton of Hyde]

My Lords, as I mentioned in my Answer, legislation is coming. The combination of the GDPR, which comes into effect on 25 May, and the Data Protection Bill, which should be in place by then, will make a real difference. Other things need to be done. One of the biggest changes in the last few months has been the acceptance that these social platforms have some responsibility for their content. That does not mean to say that they are publishers as such but Mr Zuckerberg accepted responsibility for content on Facebook. The Prime Minister, in her Davos speech, made much the same point.

[Lord Clement-Jones (LD)]

My Lords, I wonder if the Minister was as concerned as many of us by the inability of the Information Commissioner to gain access to the premises of Cambridge Analytica for five whole days. It is quite ridiculous that the commissioner should have her hands tied in this way. Will the Government pledge to give the ICO powers of entry similar to those of the competition authorities by an amendment to the Data Protection Bill?

[Lord Ashton of Hyde]

The noble Lord makes a very valid point. We have been talking to the Information Commissioner on exactly the subject of her powers. Report on the Data Protection Bill comes up in the other place soon. I believe that there is widespread sympathy for her point of view, and we are looking at that. If that is the case, and if the House of Commons decides to amend the Bill, I hope that this House will give it a favourable wind when it comes back at ping-pong.

Broadband: Universal Service Obligation

Lord Clement-Jones Excerpts

Monday 19th March 2018 Lords Chamber

[Lord Ashton of Hyde]

There are mountainous parts of this country that have high-speed broadband. It is a question of getting the infrastructure in place. Broadband availability has gone up from 45% to 95% in seven years because the Government and local authorities, together with private industry, have invested a substantial amount of money.

[Lord Clement-Jones (LD)]

My Lords, the Minister mentioned full-fibre networks, which could of course deliver ultra-fast broadband but only 3% of consumers have access to them. Eighteen months ago, the Chancellor promised £400 million towards full-fibre networks. How much of that has been spent and how much is expected to be spent in the coming months?

[Lord Ashton of Hyde]

My Lords, the Chancellor announced in November that the local full-fibre network challenge fund was in place, which is part of the Government’s £740 million national productivity investment fund. As I said, the Chancellor announced in the Spring Statement that £95 million has been allocated for 13 different areas. We plan to open the next wave of the challenge fund during this summer.

Data Protection and Privacy

Lord Clement-Jones Excerpts

Monday 5th February 2018 Lords Chamber

[Lord Ashton of Hyde]

My Lords, I completely agree with my noble friend. That is why we are establishing the Centre for Data Ethics and Innovation, which will advise on the measures we need to enable and support safe, ethical and ground-breaking innovation in artificial intelligence and other data-related technologies. I remind noble Lords of this House’s Select Committee on Artificial Intelligence, chaired by the noble Lord, Lord Clement-Jones. As for where we are with the centre, the process of appointing a chair for the interim centre is under way and expressions of interest for the role are currently live. More information is available on GOV.UK.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for the earlier namecheck. Thanks to the noble Baroness, Lady Kidron, there will now be a statutory code of practice on age-appropriate website design, which will set standards required of websites on privacy for children. Will the Government make sure that young people and their parents are clearly and effectively told what these standards are at an early date? That is especially important given that the ICO’s draft children and the GDPR guidance has already been overtaken by this major amendment to the Data Protection Bill.

[Lord Ashton of Hyde]

The noble Lord is right to mention the Kidron amendment—I think it is called that now, by universal approval—which the Government are pleased to support. It is early days, to the extent that the Data Protection Bill has not even had its Second Reading in the other place. However, the ICO is aware of what it will be required to do if this amendment remains in place and is working on that. In the meantime, it is concentrating on the GDPR coming into effect on 25 May, and the work that has to be done to get people up to speed before that date.

Gambling Act 2005 (Amendment of Schedule 6) Order 2018

Lord Clement-Jones Excerpts

Thursday 1st February 2018 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, I have given due attention to the proposals before us and can see exactly the logic that brings them to our attention. My eyebrows have been raised by certain of the details; I wish I knew how people might gamble in an inappropriate way in terms of playing darts, for example. A treble 20 is a difficult thing to be sure about under any circumstances. For all that, I can see that, if assurances have been given by the various bodies that they will come into line with the expectations under the terms of the Act, they should be added to the list.

My pulse quickened when I saw the European Rugby Cup Ltd mentioned, since the Llanelli Scarlets are leading the way for British involvement in the European cup quarter-finals. I am happy as a Welshman to just lord that over any English friends I have here in the House with me.

I have one question that perhaps the Minister can help me with. How do we get the necessary information that relates to companies registered in the Republic of Ireland? That stands out as being a little different from the others.

I am happy to note that the anti-doping people, UKAD, are now involved. Having met their representatives on more than one occasion, I can see how there is an overlap of interest, but also that it adds competence to the governing of these different sports and this activity.

All that having been said, I think that due process has been followed. When I was growing up, it was inconceivable that anybody would bet on any of these activities at all. Indeed, betting on horseracing was done illicitly in my youth. Round the corner we had Dai Double-Ticket, as we called him, and he ran the bets to the local bookkeeper on our behalf. We hoped that he would share the profits with us eventually. We have now come to the point where we can bet during matches and all the rest of it. It is so complicated now compared to what it was, and adequate machinery has to be put in place. The Gambling Act 2005 sought to do that and, a few years having passed, we must of course seek to update the information base upon which we operate the provisions of that Act. Apart from those little questions I have, I am happy to concur with the recommendation.

[Lord Clement-Jones (LD)]

My Lords, just to follow on briefly, I am very pleased to see that, as in the Commons, there is a strong Welsh perspective being displayed on these matters today.

We all have a strong interest in sports betting integrity, and we had quite a debate on the issue during our discussion of the Data Protection Bill. I am pleased, therefore, to see the inclusion of UKAD in Part 3 of Schedule 6. In the Commons discussion of this order, there were some interesting debates about the inclusion of international bodies. Perhaps the Minister could slightly unpack the reason for those international bodies being included.

The last thing I want to say is that there is a distinction between Parts 2 and 3 of Schedule 6, and I wonder whether the Minister could explain why UKAD is included in Part 3 but not in Part 2. I know that the Explanatory Memorandum goes into that to some extent, but not entirely. UKAD is an enforcement body, and it seems slightly strange that it is not going to be on the face of the statutory instrument.

[Lord Ashton of Hyde]

My Lords, I am grateful to noble Lords for those questions. I will start with an easy one, that of the noble Baroness, Lady Finlay. The reason we have not talked about football or horseracing today is that they are already on the old schedule, which includes the British Horseracing Authority, the Football Association, the Scottish, Welsh and Irish associations, and FIFA.

The noble Lords, Lord Clement-Jones and Lord Griffiths, asked why an Irish body is included. We are pleased that the UK is home to some international sports bodies and that some of the world’s greatest sports events have been held, and will continue to be held, here. Therefore, it is only right that all relevant international sports bodies, such as the Tennis Integrity Unit, the International Olympic Committee, the International Paralympic Committee and the Commonwealth Games Federation, are listed under Schedule 6. Tackling corruption and protecting the integrity of sport requires a co-ordinated approach at the domestic and international level. We must remember also that the threat faced is often cross-border in nature.

The noble Lord, Lord Clement-Jones, asked about the differences in Parts 2 and 3 of Schedule 6. To be honest, I am not sure what the answer to that is. If it is okay with him, it will be better if I write to him afterwards and get it right.

The Gambling Commission’s statutory objectives include keeping gambling fair, open and free of crime. Millions of bets are placed on sport each day and a great deal of work goes on behind the scenes to ensure that the integrity of betting on sport is maintained. Information sharing plays a central part in preventing corruption, and the order will help promote that. To support this excellent work and maintain the UK’s international standing as a leader in this field, I commend the update to Schedule 6 to the Gambling Act to the House. I am grateful for the support of noble Lords, and I hope that the House feels able to approve it.

Particulars of Proposed Designation of Age-Verification Regulator

Lord Clement-Jones Excerpts

Thursday 1st February 2018 Lords Chamber

In conclusion, we believe that the BBFC has the right attributes and experience to carry out the role of age-verification regulator. It is a highly respected organisation with unparalleled expertise in classifying content. I have every confidence in recommending it to the House as the age-verification regulator for online pornography. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I have no great argument with the particulars and the designation of the BBFC as the age-verification regulator. Indeed, we had some debates on this. I know that we may have some differences with the Labour Front Bench, but we think that the BBFC is fit for this particular purpose and will carry out the job effectively. Conversations we have had have convinced us of that. Another aspect that is beginning to be unpacked is the appeals system. Although of course we put down amendments on the question of the independence of the age-verification regulator, we think that the appeals system being set up, which is qualified in the Act—we would have preferred it not to be qualified—will be fit for purpose as well.

I want to revert to something that may strike both the Minister and Members on the Labour Front Bench as rather déjà vu: the question of the specification of the type of age verification that is required, or not, by the age-verification regulator. When we talked about this issue in Committee—indeed, amendments on it were laid on 2 February 2017 in Committee and on 20 March on Report; my noble friend Lord Paddick had a particular role in that—we were very concerned on both occasions that the age-verification methods were not going to be specified in enough detail in the Bill. It did not appear that they would be specified in any great detail in the draft guidance.

Flash forward a year and I am afraid that nothing has changed. The Minister may remember that, back in January, the Select Committee on the Constitution said:

“We are concerned that the extent to which the Bill leaves the details of the age-verification regime to guidance and guidelines to be published by the as yet-to-be-designated regulator adversely affects the ability of the House effectively to scrutinise this legislation”.


We have not moved on a great deal. If we look at the details of what I have found—which appears to be the up-to-date draft of the government guidance on the age-verification regulator—under chapter 3, paragraph 4, there is this statement:

“The regulator is not required to approve individual age-verification solutions. There are various ways to age-verify online and the industry is developing at pace. Providers are innovating and providing choice to consumers”.


That is exactly the same wording as in the draft guidance last year and quoted by my noble friend Lord Paddick on 20 March. That is extremely disappointing. It appears that the age-verification regulator will play an incredibly light-touch role in the approval of the type of age-verification that takes place.

Of course, later in chapter 3—which is headed “Age-verification arrangements”—it describes,

“the expectation that age-verification services and online pornography providers should take a privacy by design approach as recommended by the ICO”.

I have the privacy by design guidance from the ICO in front of me and I must say, if I was an age-verification provider, I would not find it particularly onerous, in terms of requiring me to try to find an anonymised age-verification solution. I find the Government’s guidance, as per Section 27 of the Act, extremely disappointing. I very much hope that the Minister can explain whether the ICO will have a role in this, what the impact of privacy by design is, in terms of enforcement, and whether the ICO will have the ability to impose a privacy impact assessment—or even a data impact assessment—on the object of the age-verification regulator’s regulation. Perhaps at the same time the Minister can explain in this particular space the boundary between what the ICO is empowered to do and what the age-verification regulator will be doing.

I am sorry to have to be disappointing in that respect, but I think that as part of the wider landscape—a matter we discussed last year—where we have got to is not particularly satisfactory if the general purpose of the age-verification regulator is to make sure that age-verification really works and that there is not the access for young people to these pornography sites that the Act was designed to prevent.

[The Earl of Erroll (CB)]

My Lords, I want to say a few words. I was quite involved in this issue when it was going through as part of our consideration of the Digital Economy Act. The Digital Policy Alliance, of which I am chairman, has had a working group on age verification for several years, looking at whether there are available solutions and encouraging people to develop them. I am pleased to tell the noble Lord, Lord Clement-Jones, that there are some solutions out there. I will explain something about that.

The only thing I want to say is that the Act received Royal Assent on 28 April, I think, so it has taken a very long time to get this guidance in place. That is a bit of a worry and a bit of a disappointment. I seem to remember that there was an intention to try to have enforcement within a year, otherwise there would be a huge great gap in the meantime. We are trying to protect children after all; that was the whole point of this. Waiting for a year—it will probably now be longer—is an awfully long time not to have protection in place.

I am very glad that the BBFC is finally about to get some teeth, get into operation and do something about this, which I am sure it will do extremely well. I know that it has been consulting an awful lot with a lot of different people from all the different sides, from child protection right through to the adult industry. The interesting thing is that quite a lot of the adult industry is happy to help and to co-operate, because it does not want children wasting its time. It is not in the job of trying to pervert children, but of trying to sell adult content to adults, so it is willing to co-operate. The world is watching. There is apparently now a willingness to realise that this will happen and to co-operate to a large extent.

The noble Lord, Lord Clement-Jones, has put his finger on the point about age-verification methods: they have to work and to do various things. I say to him, though, that there is a difference between the bit that is checking the attribute—the age—and the bit about privacy, which is not identifying who the person is to a website and to a casual visitor to that website. It would be career-limiting were it to be found out that the noble Lord himself was visiting an adult content site, even though it would be totally legal for him to do so. Therefore, it is important to ensure that privacy happens at that point, which is the ICO’s part. It is not the ICO’s job to say how age verification should be done. That is a different job.

In fact, we have developed, along with the British Standards Institution, a publicly available specification, PAS 1296, which should be coming out quite soon. It has been around the houses several times and has been revised. That should allow it to be possible for an organisation to see for itself how well it is doing. It might be that an industry body should be set up that can check whether age-verification providers are doing something in alignment with the PAS, which goes into great detail about how you can do these things and make sure that it can be privacy enforcing. The privacy side is left up to the GDPR, but it is mentioned in there as well.

Those are the main points that I wanted to make. It is time to get on with this. It is a huge leap forward. As I said, the world is watching. A whole lot of good will is out there to get this done properly. I look forward to seeing the final draft regulations, which will probably do the job.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, I am grateful to the noble Lords, Lord Stevenson and Lord Clement-Jones. There is a sense of déjà vu from the Digital Economy Act; we are continuing some of the discussions that we had then, and I am happy to do so. However, it is important to bear in mind what we are doing today, which is designating the BBFC. I hope we will come to other issues in the coming weeks. I will get into the definition of “soon” later.

[Lord Clement-Jones]

I apologise for interrupting the Minister. Perhaps he can explain why we are not doing this all in one fell swoop. It seems rather bitty. The draft guidance seems to be on the web, and certainly it seems to be all there, so why are we not trying to deal with this in a holistic way?

[Lord Ashton of Hyde]

The answer is that until the regulator is designated, it cannot issue guidance.

[Lord Clement-Jones]

My Lords, I was thinking of the government guidance.

[Lord Ashton of Hyde]

We have the government guidance that the Secretary of State has issued. The important issue, which I was going to come to in answering the noble Lord’s question, is that this is a series of steps that involves consultation and then issuing guidance. Until the regulator is designated, it cannot begin to consult or issue guidance. It is a sequential process. There is no question that we want to get on with this; we are not trying to delay it. We are conscious that this needs to be done as soon as possible, and I will come to the steps that might explain that further.

The noble Lord, Lord Clement-Jones, was asking about how the system is going to operate and the level of detail. As I said, the Secretary of State’s guidance to the regulator is there for as and when it is designated, but then the regulator is required to publish its guidance on the age-verification arrangements that it will treat as compliant. So, as I was saying, once the BBFC has been designated, that draft guidance will be laid before Parliament. The noble Lord will be able to raise his objections or queries then, when he has seen the guidance that the regulator itself has made. Until that happens, it cannot either consult or lay the guidance. Parliament can then scrutinise it. That will involve the affirmative procedure in both Houses, so that will be an appropriate point to debate the issues.

We have absolutely understood the need for things like privacy. We understand that it is important to outline those issues and priorities in the Secretary of State’s guidance to the regulator, as and when it is designated. It is then up to the regulator to get into the detail of what it will consider compliant. There is no question that it will choose a particular method. It will set criteria. There will not just be one system, for example; it will make sure that its criteria are clear in the guidance. As I say, we will have a chance to debate that.

The noble Earl, Lord Erroll, talked about when the powers are going to come into force. As I said, we want to do that as quickly as possible. In fact the current Secretary of State said it was his ambition to complete it within a year, although that is going to be difficult. We want to get it right; we want the process of consultation and guidance to be done properly. Of course, there was the small matter of purdah and an election in the way. Now, however, if this House approves the regulator today, we will be well on the way to doing that, and we are definitely trying to do it as quickly as possible.

We take data protection and privacy very seriously. The age verification arrangements should be concerned with verifying only age, not identity; we absolutely agree with that. Providers of age-verification controls will be subject to data protection laws—the GDPR—from 25 May, and the BBFC will work with the Information Commissioner’s Office to ensure that its standards are met by age verification providers, particularly with regard to security, data minimisation and privacy by design. So the ICO is there to uphold the law and enforce data protection law and the GDPR. To go further on that point, the noble Lord, Lord Clement-Jones, mentioned the relationship. The BBFC and the ICO are going to agree a memorandum of understanding to ensure and clarify how they are going to work together and separate their various responsibilities.

I know the noble Lord, Lord Stevenson, is not entirely happy with some of the arrangements; we debated some of them on the Digital Economy Bill. He also mentioned definitions and said one of the things that the regulator—that is, the BBFC if it is designated—will have to do is regulate the definition of extreme pornography that is unlawful even if it has age verification in place. That is not really the subject of debate today. Noble Lords will have an opportunity to discuss that when the regulations come—

Brexit: Audio-visual Services

Lord Clement-Jones Excerpts

Monday 29th January 2018 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the ability of United Kingdom audiovisual services to take advantage of the European Union country of origin rules after Brexit.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, the broadcasting industry has continuously emphasised the significance of maintaining the country of origin principle. We are committed to working with the sector to ensure that those points are explored and considered as the UK develops its stance on exit negotiations as part of the overall effort to secure the best deal for the UK as a whole. The effect of leaving the EU will depend on the exit negotiations.

[Lord Clement-Jones (LD)]

My Lords, there are hundreds of channels based here which are broadcast to the EU and get the benefit of a single regulator in the form of Ofcom. The Creative Industries Federation states, in its report today on global trade and Brexit:

“To ensure the UK remains a leading hub for international broadcasters, the continued mutual recognition of broadcasting licences between the UK and EU Member States is imperative”.


Does the Minister agree with that statement, and will the Government treat this as a priority in trade negotiations? Is this not another example of where the straightforward solution would be to stay in the single market?

[Lord Ashton of Hyde]

My Lords, I am very pleased to confirm to the noble Lord that we will treat this as a priority. Of course he is right that the broadcasting industries are one of the UK’s success stories. In fact, 55% of the TV channels based in the UK mainly targeted the European market in 2016, and 53% of the video-on-demand services primarily targeted the EU. It is definitely one of the top priorities of my department, and we communicate regularly with the Department for Exiting the European Union to ensure that it is one of its.