Data (Use and Access) Bill [HL]

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Wednesday 18th December 2024 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, Amendment 138 tabled by the noble Lord, Lord Clement-Jones, and Amendment 141, tabled by the noble Baroness, Lady Kidron, and the noble Lord, Lord Knight, would both require the ICO to publish a code of practice for controllers and processors on the processing of personal data by educational technologies in schools.

I say at the outset that I welcome this debate and the contributions of noble Lords on this important issue. As various noble Lords have indicated, civil society organisations have also been contacting the Department for Science, Innovation and Technology and the Department for Education directly to highlight their concerns about this issue. It is a live issue.

I am grateful to my noble friend Lord Knight, who talked about some of the important and valuable contributions that technology can play in supporting children’s development and guiding teaching interventions. We have to get the balance right, but we understand and appreciate that schoolchildren, parents and schoolteachers must have the confidence to trust the way that services use children’s personal data. That is at the heart of this debate.

There is a lot of work going on, on this issue, some of which noble Lords have referred to. The Department for Education is already exploring ways to engage with the edtech market to reinforce the importance of evidence-based quality products and services in education. On my noble friend Lord Knight’s comments on AI, the Department for Education is developing a framework outlining safety expectations for AI products in education and creating resources for teachers and leaders on safe AI use.

I recognise why noble Lords consider that a dedicated ICO code of practice could help ensure that schools and edtech services are complying with data protection legislation. The Government are open-minded about exploring the merits of this further with the ICO, but it would be premature to include these requirements in the Bill. As I said, there is a great deal of work going on and the findings of the recent ICO audits of edtech service providers will help to inform whether a code of practice is necessary and what services should be in scope.

I hope that we will bear that in mind and engage on it. I would be happy to continue discussions with noble Lords, the ICO and colleagues at the Department for Education, outside of the Bill’s processes, about the possibility of future work on this, particularly as the Secretary of State has powers under the Data Protection Act 2018 to require the ICO to produce new statutory codes, as noble Lords know. Considering the explanation that I have given, I hope that the noble Lord, Lord Clement-Jones, will consider withdrawing his amendment at this stage.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for her response and all speakers in this debate. On the speech from the noble Lord, Lord Knight, I entirely agree with the Minister and the noble Viscount, Lord Camrose, that it is important to remind ourselves about the benefits that can be achieved by AI in schools. The noble Lord set out a number of those. The noble Lord, Lord Russell, also reminded us that this is not a purely domestic issue; it is international across the board.

However, all noble Lords reminded us of the disbenefits and risks. In fact, the noble Lord, Lord Knight, used the word “dystopian”, which was quite interesting, although he gets very close to science fiction sometimes. He said that

“we have good reason to be concerned”,

particularly because of issues such as the national pupil database, where the original purpose may not have been fulfilled and was, in many ways, changed. He gave an example of procurement during Covid, where the choice was either Google or Microsoft—Coke or Pepsi. That is an issue across the board in competition law, as well.

There are real issues here. The noble Lord, Lord Russell, put it very well when he said that there is any number of pieces of guidance for schools but it is important to have a code of conduct. We are all, I think, on the same page in trying to find—in the words of the noble Baroness, Lady Kidron—a fairer and more equitable set of arrangements for children in schools. We need to navigate our way through this issue; of course, organisations such as Defend Digital Me and 5rights are seriously working on it.

Data (Use and Access) Bill [HL]

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Monday 16th December 2024 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, in carrying on on this group, I will speak to the question that Clause 78 stands part, and to Amendments 107, 109, 125, 154, 155 and 156, but to start I support Amendment 87 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd. We had a masterclass from him last Tuesday and he made an extremely good case for that amendment, which is very elegant.

The previous Government deleted the EU Charter of Fundamental Rights from the statute book through the Retained EU Law (Revocation and Reform) Act 2023, and this Bill does nothing to restore it. Although references in the UK GDPR to fundamental rights and freedoms are now to be read as references to the ECHR as implemented through the Human Rights Act 1998, the Government’s ECHR memorandum states:

“Where processing is conducted by a private body, that processing will not usually engage convention rights”.


As the noble and learned Lord mentioned, this could leave a significant gap in protection for individuals whose data is processed by private organisations and will mean lower data protection rights in the UK compared with the EU, so these Benches strongly support his Amendment 87, which would apply the convention to private bodies where personal data is concerned. I am afraid we do not support Amendments 91 and 97 from the noble Viscount, Lord Camrose, which seem to hanker after the mercifully defunct DPDI.

We strongly support Amendments 139 and 140 from the noble Baroness, Lady Kidron. Data communities are one of the important omissions from the Bill. Where are the provisions that should be there to support data-sharing communities and initiatives such as Solid? We have been talking about data trusts and data communities since as long ago as the Hall-Pesenti review. Indeed, it is interesting that the Minister herself only this April said in Grand Committee:

“This seems to be an area in which the ICO could take a lead in clarifying rights and set standards”.


Indeed, she put forward an amendment:

“Our Amendment 154 would therefore set a deadline for the ICO to do that work and for those rights to be enacted. The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, made a good case for broadening these rights in the Bill and, on that basis, I hope the Minister will agree to follow this up, and follow up his letter so that we can make further progress on this issue”.—[Official Report, 17/4/24; col. GC 322.]


I very much hope that, now the tables are turned, so to speak, the Minister will take that forward herself in government.

Amendments 154, 155 and 156 deal with the removal of the principle of the supremacy of EU law. They are designed to undo the lowering of the standard of data protection rights in the UK brought about by the REUL Act 2023. The amendments would apply the protections required in Article 23.2 of the UK GDPR to all the relevant exceptions in Schedules 2 to 4 to the Data Protection Act 2018. This is important because data adequacy will be lost if the standard of protection of personal data in the UK is no longer essentially equivalent to that in the EU.

The EU’s adequacy decision stated that it did not apply in the area of immigration and referred to the case of Open Rights Group v the Secretary of State for the Home Department in the Court of Appeal. This case was brought after the UK left the EU, but before the REULA came into effect. The case is an example of how the preservation of the principle of the supremacy of EU law continued to guarantee high data protection standards in the UK, before this principle was deleted from the statute book by the REULA. In broad terms, the Court of Appeal found that the immigration exception in Schedule 2 to the Data Protection Act 2018 conflicted with the safeguards in Article 23 of the UK GDPR. This was because the immigration exemption was drafted too broadly and failed to incorporate the safeguards prescribed for exemptions under Article 23.2 of the UK GDPR. It was therefore held to be unlawful and was disapplied.

The Home Office redrafted the exemption to make it more protective, but it took several attempts to bring forward legislation which provided sufficient safeguards for data subjects. The extent of the safeguards now set out in the immigration exemption underscores both what is needed for compatibility with Article 23.2 of the UK GDPR and the deficiencies in the rest of the Schedule 2 exemptions. It is clear when reading the judgment in the Open Rights case that the majority of the exemptions from data subject rights under Schedule 2 to the Data Protection Act fail to meet the standards set out in Article 23.2 to the UK GDPR. The deletion of the principle of the supremacy of EU law has removed the possibility of another Open Rights-style challenge to the other exemptions in Schedule 2 to the Data Protection Act 2018. I hope that, ahead of the data adequacy discussions with the Commission, the Government’s lawyers have had a good look at the amendments that I have tabled, drafted by a former MoJ lawyer.

The new clause after Clause 107 in Amendment 154 applies new protections to the immigration exemption to the whole of Schedule 2 to the DPA 2018, with the exception of the exemptions that apply in the context of journalism or research, statistics and archiving. Unlike the other exemptions, they already contain detailed safeguards.

Amendment 155 is a new clause extending new protections which apply to the immigration exemption to Schedule 3 to the DPA 2018, and Amendment 156 is another new clause applying new protections which apply to the immigration exemption to Schedule 2 to the DPA 2018.

As regards Amendment 107, the Government need to clarify how data processing under recognised legitimate interests are compatible with conditions for data processing under existing lawful bases, including the special categories of personal data under Articles 5 and 9 of the UK GDPR. The Bill lowers the standard of the protection of personal data where data controllers only have to provide personal data based on

“a reasonable and proportionate search”.

The lack of clarity on what reasonable and proportionate mean in the context of data subject requests creates legal uncertainty for data controllers and organisations, specifically regarding whether the data subject’s consideration on the matter needs to be accounted for when responding to requests. This is a probing amendment which requires the Secretary of State to explain why the existing lawful bases for data processing are inadequate for the processing of personal data when additional recognised legitimate interests are introduced. It requires the Secretary of State to publish guidance within six months of the Act’s passing to clarify what constitutes reasonable and proportionate protections of personal data.

Amendment 109 would insert a new clause, to ensure that data controllers assess the risk of collective and societal harms,

“including to equality and the environment”,

when carrying out data protection impact assessments. It requires them to consult affected people and communities while carrying out these assessments to improve their quality, and requires data controllers to publish their assessments to facilitate informed decision-making by data subjects and to enable data controllers to be held accountable.

Turning to whether Clause 78 should stand part, on top of Clause 77, Clause 78 would reduce the scope of transparency obligations and rights. Many AI systems are designed in a way that makes it difficult to retrieve personal data once ingested, or understand how this data is being used. This is not principally due to technical limitations but the decision of AI developers who do not prioritise transparency and explainability.

As regards Amendment 125, it is clear that there are still further major changes proposed to the GDPR on police duties, automated decision-making and recognised legitimate interests which continue to make retention of data adequacy for the purposes of digital trade with the EU of the utmost priority in considering those changes. During the passage of the Data Protection and Digital Information Bill, I tabled an amendment to require the Government to publish an assessment of the impact of the Bill on EU/UK data adequacy within six months of the Act passing; I have tabled a similar amendment, with one change, to this Bill. As the next reassessment of data adequacy is set for June 2025, a six-month timescale may prove inconsequential to the overall adequacy decision. We must therefore recommend stipulating that this assessment takes place before this reassessment.

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, I thank all noble Lords for their consideration of these clauses. First, I will address Amendment 87 tabled by the noble and learned Lord, Lord Thomas, and the noble and learned Lord—sorry, the noble Lord—Lord Clement-Jones.

[Lord Clement-Jones (LD)]

I will take any compliment.

[Baroness Jones of Whitchurch (Lab)]

We should take them while we can. Like the noble Lord, Lord Clement-Jones, I agree that the noble and learned Lord, Lord Thomas, made an excellent contribution. I appreciate this is a particularly technical area of legislation, but I hope I can reassure both noble Lords that the UK’s data protection law gives effect to convention rights and is designed to protect them. The Human Rights Act requires legislation to be interpreted compatibly with convention rights, whether processing is carried out by public or private bodies. ECHR rights are therefore a pervasive aspect of the rules that apply to public and private controllers alike. The noble and learned Lord is right that individuals generally cannot bring claims against private bodies for breaches of convention rights, but I reassure him that they can bring a claim for breaching the data protection laws giving effect to those rights.

I turn to Amendment 91, tabled by the noble Viscount, Lord Camrose, Amendment 107, tabled by the noble Lord, Lord Clement-Jones, and the question of whether Clause 78 should stand part, which all relate to data subject requests. The Government believe that transparency and the right of access is crucial. That is why they will not support a change to the language around the threshold for data subject requests, as this will undermine data subjects’ rights. Neither will the Bill change the current expectations placed on controllers. The Bill reflects the EU principle of proportionality, which has always underpinned this legislation, as well as existing domestic case law and current ICO guidance. I hope that reassures noble Lords.

Amendments 97 and 99, tabled by the noble Viscount, Lord Camrose, and the noble Lord, Lord Markham, relate to the notification exemption in Article 14 of the UK GDPR. I reassure noble Lords that the proportionality test provides an important safeguard for the existing exemption when data is collected from sources other than the data subject. The controller must always consider the impact on data subjects’ rights of not notifying. They cannot rely on the disproportionate effort exemption just because of how much data they are processing—even when there are many data subjects involved, such as there would be with web scraping. Moreover, a lawful basis is required to reuse personal data: a web scraper would still need to pass the balancing test to use the legitimate interest ground, as is usually the case.

The ICO’s recent outcomes report, published on 12 December, specifically referenced the process of web scraping. The report outlined:

“Web scraping for generative AI training is a high-risk, invisible processing activity. Where insufficient transparency measures contribute to people being unable to exercise their rights, generative AI developers are likely to struggle to pass the balancing test”.

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[Lord Clement-Jones (LD)]

The Minister said there is a power to amend, but she has not said whether she thinks that would be desirable. Is the power to be used only if we are found not to be data-adequate because the immigration exemption does not apply across the board? That is, will the power be used only if we are forced to use it?

[Baroness Jones of Whitchurch (Lab)]

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

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[Lord Clement-Jones (LD)]

When does the Minister anticipate that the ICO will produce that report?

[Baroness Jones of Whitchurch (Lab)]

I do not have the detail of all that. Obviously, the call for views has only recently gone out and he will need time for consideration of the responses. I hope the noble Lord will accept that the ICO is on the case on this matter. If we can provide more information, we will.

[Lord Clement-Jones (LD)]

May I ask the Minister a hypothetical question? If the ICO believes that these are not desirable, what instruments are there for changing the law? Can the ICO, under its own steam, so to speak, ban them; do we need to do it in primary legislation; or can it be done in secondary legislation? If the Minister cannot answer now, perhaps she can write to me.

[Baroness Jones of Whitchurch (Lab)]

Of course I will write to the noble Lord. It will be within the ICO’s normal powers to make changes where he finds that they are necessary.

I move to Amendment 160, tabled by noble Lord, Lord Lucas, which seeks to create a new exemption for advertising performance cookies. There is a balance to strike between driving growth in the advertising, news and publishing sectors while ensuring that people retain choice and control over how their data is used. To exempt advertising measurement cookies, we would need to assess how intrusive these cookies are, including what they track and where data is sent. We have taken a delegated power so that exemptions to the prohibition can be added in future once evidence supports it, and we can devise appropriate safeguards to minimise privacy risks. In the meantime, we have been actively engaging with the advertising and publishing sectors on this issue and will continue to work with them to consider the potential use of the regulation-making power. I hope that the noble Lord will accept that this is work in progress.

Amendment 161, also from the noble Lord, Lord Lucas, aims to extend the soft opt-in rule under the privacy and electronic communications regulations to providers of auto-enrolment pension schemes. The soft opt-in rule removes the need for some commercial organisations to seek consent for direct marketing messages where there is an existing relationship between the organisation and the customer, provided the recipient did not object to receiving direct marketing messages when their contact details were collected.

The Government recognise that people auto-enrolled by their employers in workplace pension schemes may not have an existing relationship with their pension provider, so I understand the noble Lord’s motivations for this amendment. However, pension providers have opportunities to ask people to express their direct mail preferences, such as when the customer logs on to their account online. We are taking steps to improve the support available for pension holders through the joint Government and FCA advice guidance boundary review. The FCA will be seeking feedback on any interactions of proposals with direct marketing rules through that consultation process. Again, I hope the noble Lord will accept that this issue is under active consideration.

Amendment 162, tabled by the noble Lord, Lord Clement-Jones, would create an equivalent provision to the soft opt-in but for charities. It would enable a person to send electronic marketing without permission to people who have previously expressed an interest in their charitable objectives. The noble Lord will recall, and has done so, that the DPDI Bill included a provision similar to his amendment. The Government removed it from that Bill due to the concerns that it would increase direct marketing from political parties. I think we all accepted at the time that we did not want that to happen.

As the noble Lord said, his amendment is narrower because it focuses on communications for charitable purposes, but it could still increase the number of messages received by people who have previously expressed an interest in the work of charities. We are listening carefully to arguments for change in this area and will consider the points he raises, but I ask that he withdraws his amendment while we consider its potential impact further. We are happy to have further discussions on that.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, we have had a really profound and significant debate on these issues; it has been really helpful that they have been aired by a number of noble Lords in a compelling and articulate way. I thank everybody for their contributions.

I have to say at the outset that the Government want data protection rules fit for the age of emerging technologies. The noble Lord, Lord Holmes, asked whether we are addressing issues of the past or issues of the future. We believe that the balance we have in this Bill is exactly about addressing the issues of the future. Our reforms will reduce barriers to the responsible use of automation while clarifying that organisations must provide stringent safeguards for individuals.

I stress again how seriously we take these issues. A number of examples have been quoted as the debate has gone on. I say to those noble Lords that examples were given where there was no human involved. That is precisely what the new provisions in this Bill attempt to address, in order to make sure that there is meaningful human involvement and people’s futures are not being decided by an automated machine.

Amendment 110 tabled by the noble Lords, Lord Clement-Jones and Lord Knight, seeks to clarify that, for human involvement to be meaningful, it must be carried out by a competent person. Our reforms make clear that solely automated decisions lack meaningful human involvement. That goes beyond a tick-box exercise. The ICO guidance also clarifies that

“the human involvement has to be active and not just a token gesture”;

that right is absolutely underpinned by the wording of the regulations here.

I turn next to Amendment 111. I can assure—

[Lord Clement-Jones (LD)]

My Lords, I was listening very carefully. Does “underpinned by the regulations” mean that it will be underpinned?

[Baroness Jones of Whitchurch (Lab)]

Yes. The provisions in this Bill cover exactly that concern.

[Lord Clement-Jones (LD)]

The issue of meaningful human involvement is absolutely crucial. Is the Minister saying that regulations issued by the Secretary of State will define “meaningful human involvement”, or is she saying that it is already in the primary legislation, which is not my impression?

[Baroness Jones of Whitchurch (Lab)]

Sorry—it is probably my choice of language. I am saying that it is already in the Bill; it is not intended to be separate. I was talking about whether solely automated decisions lack meaningful human involvement. This provision is already set out in the Bill; that is the whole purpose of it.

On Amendment 111, I assure the noble Viscount, Lord Camrose, that controllers using solely automated processing are required to comply with the data protection principles. I know that he was anticipating this answer, but we believe that it captures the principles he proposes and achieves the same intended effect as his amendment. I agree with the noble Viscount that data protection is not the only lens through which AI should be regulated, and that we cannot address all AI risks through the data protection legislation, but the data protection principles are the right ones for solely automated decision-making, given its place in the data protection framework. I hope that that answers his concerns.

On Amendment 112, which seeks to prohibit solely automated decisions that contravene the Equality Act 2010, I assure the noble Lords, Lord Clement-Jones and Lord Knight, that the data protection framework is clear that controllers must adhere to the Equality Act.

Amendments 113 and 114 would extend solely automated decision-making safeguards to predominantly automated decision-making. I assure the noble and learned Lord Thomas, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, that the safeguards in Clause 80 are designed to protect individuals where meaningful human involvement is lacking. Predominantly automated decision-making will already include meaningful human involvement and therefore does not require these additional safeguards.

On Amendments 114A and 115A, tabled by the noble Viscount, Lord Camrose, many noble Lords have spoken in our debates about the importance of future-proofing the legislation. These powers are an example of that: without them, the Government will not have the ability to act quickly to update protections for individuals in the light of rapid technology developments.

I assure noble Lords that the regulation powers are subject to a number of safeguards. The Secretary of State must consult the Information Commissioner and have regard to other relevant factors, which can include the impact on individuals’ rights and freedoms as well as the specific needs and rights of children. As with all regulations, the exercise of these powers must be rational; they cannot be used irrationally or arbitrarily. Furthermore, the regulations will be subject to the affirmative procedure and so must be approved by both Houses of Parliament.

I assure the noble Lord, Lord Clement-Jones, that one of the powers means that his Amendment 123 is not necessary, as it can be used to describe specifically what is or is not meaningful human involvement.

Amendment 115A, tabled by the noble Viscount, Lord Camrose, would remove the reforms to Parts 3 and 4 of the Data Protection Act, thereby putting them out of alignment with the UK GDPR. That would cause confusion and ambiguity for data subjects.

[Lord Clement-Jones (LD)]

I am sorry to interrupt again as we go along but, a sentence or so ago, the Minister said that the definition in Amendment 123 of meaningful human involvement in automated decision-making was unnecessary. The amendment is designed to change matters. It would not be the Secretary of State who determined the meaning of meaningful human involvement; in essence, it would be initiated by the Information Commissioner, in consultation with the Secretary of State. So I do not quite understand why the Minister used “unnecessary”. It may be an alternative that is undesirable, but I do not understand why she has come to the conclusion that it is unnecessary. I thought it was easier to challenge the points as we go along rather than at the very end.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we would say that a definition in the Bill is not necessary because it is dealt with case by case and is supplemented by these powers. The Secretary of State does not define meaningful human involvement; it is best done case by case, supported by the ICO guidance. I hope that that addresses the noble Lord’s point.

[Lord Clement-Jones (LD)]

That is slightly splitting hairs. The noble Viscount, Lord Camrose, might want to comment because he wanted to delete the wording that says:

“The Secretary of State may by regulations provide that … there is, or is not, to be taken to be meaningful human involvement”.


He certainly will determine—or is able to determine, at least—whether or not there is human involvement. Surely, as part of that, there will need to be consideration of what human involvement is.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I am happy to write.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for her very detailed and careful response to all the amendments. Clearly, from the number of speakers in this debate, this is one of the most important areas of the Bill and one that has given one of the greatest degrees of concern, both inside and outside the Committee. I think the general feeling is that there is still concern. The Minister is quite clear that the Government are taking these issues seriously, in terms of ADM itself and the impact in the workplace, but there are missing parts here. If you add all the amendments together—no doubt we will read Hansard and, in a sense, tick off the areas where we have been given an assurance about the interpretation of the Bill—there are still great gaps.

It was very interesting to hear what the noble Lord, Lord Kamall, had to say about how the computer said “no” as he reached the gate. A lot of this is about communications. I would be very interested if any letter to the noble Lord, Lord Lucas, was copied more broadly, because that is clearly one of the key issues. It was reassuring to hear that the ICO will be on top of this in terms of definitions, guidance, audit and so on, and that we are imminently to get the publication of the records of algorithmic systems in use under the terms of the algorithmic transparency recording standard.

We have had some extremely well-made points from the noble Viscounts, Lord Colville and Lord Camrose, the noble Lords, Lord Lucas, Lord Knight and Lord Holmes, and the noble Baroness, Lady Kidron. I am not going to unpack all of them, but we clearly need to take this further and chew it over before we get to Report. I very much hope that the Minister will regard a will write letter on stilts as required before we go very much further, because I do not think we will be purely satisfied by this debate.

The one area where I would disagree is on treating solely automated decision-making as the pure subject of the Clause 80 rights. Looking at it in the converse, it is perfectly proper to regard something that does not have meaningful human involvement as predominantly automated decision-making. I do not think, in the words of the noble Viscount, Lord Camrose, that this does muddy the waters. We need to be clearer about what we regard as being automated decision-making for the purpose of this clause.

There is still quite a lot of work to do in chewing over the Minister’s words. In the meantime, I beg leave to withdraw my amendment.

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[Viscount Camrose (Con)]

I thank the noble Lord, Lord Clement-Jones; let me consider it a marker for future discussion.

[Baroness Jones of Whitchurch (Lab)]

I thank the noble Lord, Lord Clement-Jones, for coming to my rescue there.

I turn to the Clause 81 stand part notice tabled by the noble Lord, Lord Clement-Jones, which would remove Clause 81 from the Bill. Section 62 of the Data Protection Act requires law enforcement agencies to record their processing activities, including their reasons for accessing and disclosing personal information. Entering a justification manually was intended to help detect unauthorised access. The noble Lord was right that the police do sometimes abuse their power; however, I agree with the noble Viscount, Lord Camrose, that the reality is that anyone accessing the system unlawfully is highly unlikely to record that, making this an ineffective safeguard.

Meanwhile, the position of the National Police Chiefs’ Council is that this change will not impede any investigation concerning the unlawful processing of personal data. Clause 81 does not remove the strong safeguards that ensure accountability for data use by law enforcement that include the requirement to record time, date, and where possible, who has accessed the data, which are far more effective in monitoring potential data misuse. We would argue that the requirement to manually record a justification every time case information is accessed places a considerable burden on policing. I think the noble Lord himself said that we estimate that this clause may save approximately 1.5 million policing hours, equivalent to a saving in the region of £42.8 million a year.

[Lord Clement-Jones (LD)]

There were some raised eyebrows.

[Baroness Jones of Whitchurch (Lab)]

Yes, we could not see the noble Lord’s raised eyebrows.

Turning to Amendment 124, I thank the noble Baroness, Lady Morgan, for raising this important issue. While I obviously understand and welcome the intent, I do not think that the legislative change is what is required here. The Information Commissioner’s Office agrees that the Data Protection Act is not a barrier to the sharing of personal data between the police and the CPS. What is needed is a change in the operational processes in place between the police and the CPS that are causing this redaction burden that the noble Baroness spelled out so coherently.

We are very much aware that this is an issue and, as I think the noble Baroness knows, the Government are committed to reducing the burden on the police and the Home Office and to exploring with partners across the criminal justice system how this can best be achieved. We absolutely understand the point that the noble Baroness has raised, but I hope that she could agree to give space to the Home Office and the CPS to try to find a resolution so that we do not have the unnecessary burden of redaction when it is not necessary. It is an ongoing discussion—which I know the noble Baroness knows really—and I hope that she will not pursue it on that basis.

I will address Amendments 126 to 129 together. These amendments seek to remove parts of Schedule 8 to avoid divergence from EU legislation. The noble Lord, Lord Clement-Jones, proposes instead to remove existing parts of Section 73 of the Data Protection Act 2018. New Section 73(4)(aa), introduced by this Bill, with its bespoke path for personal data transfers from UK controllers to international processors, is crucial. In the modern age, where the use of such capabilities and the benefits they provide is increasing, we need to ensure that law enforcement can make effective use of them to tackle crime and keep citizens safe.

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[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for her response on this group, which was, again, very detailed. There is a lot to consider in what she had to say, particularly about the clauses beyond Clause 81. I am rather surprised that the current Government are still going down the same track on Clause 81. It is as if, because the risk of abuse is so high, this Government, like the previous one, have decided that it is not necessary to have the safeguard of putting down the justification in the first place. Yet we have heard about the Sarah Everard police officers. It seems to me perverse not to require justification. I will read further what the Minister had to say but it seems quite extraordinary to be taking away a safeguard at this time, especially when the Minister says that, at the same time, they need to produce logs of the time of the data being shared and so on. I cannot see what is to be gained—I certainly cannot see £42 million being saved. It is a very precise figure: £42.8 million. I wonder where the £800,000 comes from. It seems almost too precise to be credible.

[Baroness Jones of Whitchurch (Lab)]

I emphasise that we believe the safeguards are there. This is not a watering down of provisions. We are just making sure that the safeguards are more appropriate for the sort of abuse that we think might happen in future from police misusing their records. I do not want it left on the record that we do not think that is important.

[Lord Clement-Jones (LD)]

No. As I was saying, it seems that the Minister is saying that there will still be the necessity to log the fact that data has been shared. However, it seems extraordinary that, at the same time, it is not possible to say what the justification is. The justification could be all kinds of things, but it makes somebody think before they simply share the data. It seems to me that, given the clear evidence of abuse of data by police officers—data of the deceased, for heaven’s sake—we need to keep all the safeguards we currently have. That is a clear bone of contention.

I will read what else the Minister had to say about the other clauses in the group, which are rather more sensitive from the point of view of national security, data sharing abroad and so on.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank noble Lords for their consideration of the issues before us in this group. I begin with Amendment 134 from the noble Lord, Lord Clement-Jones. I can confirm that the primary duty of the commissioner will be to uphold the principal objective: securing an appropriate level of data protection, carrying out the crucial balancing test between the interests of data subjects, controllers and wider public interests, and promoting public trust and confidence in the use of personal data.

The other duties sit below this objective and do not compete with it—they do not come at the expense of upholding data protection standards. The commissioner will have to consider these duties in his work but will have discretion as to their application. Moreover, the new objectives inserted by the amendment concerning monitoring, enforcement and complaints are already covered by legislation.

I thank the noble Lord, Lord Lucas for Amendment 135A. The amendment was a previous feature of the DPDI Bill but the Government decided that a statement of strategic priorities for the ICO in this Bill is not necessary. The Government will of course continue to set out their priorities in relation to data protection and other related areas and discuss them with the Information Commissioner as appropriate.

Amendment 142 from the noble Viscount, Lord Camrose, would remove the ICO’s ability to serve notices by email. We would argue that email is a fast, accessible and inexpensive method for issuing notices. I can reassure noble Lords that the ICO can serve a notice via email only if it is sent to an email address published by the recipient or where the ICO has reasonable grounds to believe that the notice will come to the attention of the person, significantly reducing the risk that emails may be missed or sent to the wrong address.

Regarding the noble Viscount’s Amendment 143, the assumption that an email notice will be received in 48 hours is reasonable and equivalent to the respective legislation of other regulators, such as the CMA and Ofcom.

I thank the noble Lord, Lord Clement-Jones, for Amendment 144 concerning the ICO’s use of reprimands. The regulator does not commonly issue multiple reprimands to the same organisation. But it is important that the ICO, as an independent regulator, has the discretion and flexibility in instances where there may be a legitimate need to issue multiple reprimands within a particular period without placing arbitrary limits on that.

Turning to Amendment 144A, the new requirements in Clause 101 will already lead to the publication of an annual report, which will include the regulator’s investigation and enforcement activity. Reporting will be categorised to ensure that where the detail of cases is not public, commercially sensitive investigations are not inadvertently shared. Splitting out reporting by country or locality would make it more difficult to protect sensitive data.

Turning to Amendment 145, with thanks to the noble Baroness, Lady Kidron, I agree with the importance of ensuring that the regulator can be held to account on this issue effectively. The new annual report in Clause 101 will cover all the ICO’s regulatory activity, including that taken to uphold the rights of children. Clause 90 also requires the ICO to publish a strategy and report on how it has complied with its new statutory duties. Both of these will cover the new duty relating to children’s awareness and rights, and this should include the ICO’s activity to support and uphold its important age-appropriate design code.

I thank the noble Lord, Lord Clement-Jones, for Amendments 163 to 192 to Schedule 14, which establishes the governance structure of the information commission. The approach, including the responsibilities conferred on the Secretary of State, at the core of the amendments follows standard corporate governance best practice and reflects the Government’s commitment to safeguarding the independence of the regulator. This includes requiring the Secretary of State to consult the chair of the information commission before making appointments of non-executive members.

Amendments 165 and 167A would require members of the commission to be appointed to oversee specific tasks and to be from prescribed fields of expertise. Due to the commission’s broad regulatory remit, the Government consider that it would not be appropriate or helpful for the legislation to set out specific areas that should receive prominence over others. The Government are confident that the Bill will ensure that the commission has the right expertise on its board. Our approach safeguards the integrity and independence of the regulator, draws clearly on established precedent and provides appropriate oversight of its activities.

Finally, Clauses 91 and 92 were designed to ensure that the ICO’s statutory codes are consistent in their development, informed by relevant expertise and take account of their impact on those likely to be affected by them. They also ensure that codes required by the Secretary of State have the same legal effect as pre-existing codes published under the Data Protection Act.

Considering the explanations I have offered, I hope that the noble Lords, Lord Clement-Jones and Lord Lucas, the noble Viscount, Lord Camrose, and the noble Baroness, Lady Kidron, will agree not to press their amendments.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for that response. If I speak for four minutes, that will just about fill the gap, but I hope to speak for less than that.

The Minister’s response was very helpful, particularly the way in which she put the clarification of objectives. Of course, this is shared with other regulators, where this new growth duty needs to be set in the context of the key priorities of the regulator. My earlier amendment reflected a nervousness about adding innovation and growth duties to a regulator, which may be seen to unbalance the key objectives of the regulator in the first place, but I will read carefully what the Minister said. I welcome the fact that, unlike in the DPDI Bill, there is no requirement for a statement of strategic priorities. That is why I did not support Amendment 135A.

It is somewhat ironic that, in discussing a digital Bill, the noble Viscount, Lord Camrose, decided to go completely analogue, but that is life. Maybe that is what happens to you after four and a half hours of the Committee.

I do not think the Minister covered the ground on the reprimands front. I will read carefully what she said about the annual report and the need for the ICO—or the commission, as it will be—to report on its actions. I hope, just by putting down these kinds of amendments on reprimands, that the ICO will take notice. I have been in correspondence with the ICO myself, as have a number of organisations. There is some dissatisfaction, particularly with companies such as Clearview, where it is felt that the ICO has not taken adequate action on scraping and building databases from the internet. We will see whether the ICO becomes more proactive in that respect. I was reassured, however, by what the Minister said about NED qualifications and the general objective on the independence of the regulator.

There is much to chew on in what the Minister said. In the meantime, I beg leave to withdraw my amendment.

Data (Use and Access) Bill [HL]

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Tuesday 10th December 2024 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, I share the confusion of the noble Baroness, Lady Kidron, about the groupings. If we are not careful, we are going to keep returning to this issue again and again over four or five groups.

With the possible exception of the noble Lord, Lord Lucas, I think that we are all very much on the same page here. On the suggestion from the noble Viscount, Lord Colville, that we meet to discuss the precise issue of the definition of “scientific research”, this would be extremely helpful; the noble Baroness and I do not need to repeat the concerns.

I should declare an interest in two respects: first, my interests as regards AI, which are set out on the register; and, secondly—I very much took account of what the noble Viscount, Lord Camrose, and the noble Lord, Lord Markham, had to say—I chair the council of a university that has a strong health faculty. It does a great deal of health research and a lot of that research relies on NHS datasets.

This is not some sort of Luddism we are displaying here. This is caution about the expansion of the definition of scientific research, so that it does not turn into something else: that it does not deprive copyright holders of compensation, and that it does not allow personal data to be scraped off the internet without consent. There are very legitimate issues being addressed here, despite the fact that many of us believe that this valuable data should of course be used for the public benefit.



One of the key themes—this is perhaps where we come back on to the same page as the noble Lord, Lord Lucas—may be public benefit, which we need to reintroduce so that we really understand that scientific research for public benefit is the purpose we want this data used for.

I do not think I need to say much more: this issue is already permeating our discussions. It is interesting that we did not get on to it in a major way during the DPDI Bill, yet this time we have focused much more heavily on it. Clearly, in opposition, the noble Viscount has seen the light. What is not to like about that? Further discussion, not least of the amendment of the noble Baroness, Lady Kidron, further down the track will be extremely useful.

[Baroness Jones of Whitchurch (Lab)]

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

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

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[Lord Clement-Jones (LD)]

Can the Minister say whether this will be a Bill, a draft Bill or a consultation?

[Baroness Jones of Whitchurch (Lab)]

We will announce this in the usual way—in due course. I refer the noble Lord to the King’s Speech on that issue. I feel that noble Lords want more information, but they will just have to go with what I am able to say at the moment.

[Lord Clement-Jones (LD)]

Perhaps another aspect the Minister could speak to is whether this will be coming very shortly, shortly or imminently.

[Baroness Jones of Whitchurch (Lab)]

Let me put it this way: other things may be coming before it. I think I promised at the last debate that we would have something on copyright in the very, very, very near future. This may not be as very, very, very near future as that. We will tie ourselves in knots if we carry on pursuing this discussion.

On that basis, I hope that this provides noble Lords with sufficient reassurance not to press their amendments.

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[Lord Clement-Jones (LD)]

My Lords, I welcome the noble Viscount to the sceptics’ club because he has clearly had a damascene conversion. It may be that this goes too far. I am slightly concerned, like him, about the bureaucracy involved in this, which slightly gives the game away. It could be seen as a way of legitimising commercial research, whereas we want to make it absolutely certain that that research is for the public benefit, rather than imposing an ethical board on every single aspect of research which has any commercial content.

We keep coming back to this, but we seem to be degrouping all over the place. Even the Government Whips Office seems to have given up trying to give titles for each of the groups; they are just called “degrouped” nowadays, which I think is a sign of deep depression in that office. It does not tell us anything about what the different groups contain, for some reason. Anyway, it is good to see the noble Viscount, Lord Camrose, kicking the tyres on the definition of the research aspect.

[Baroness Jones of Whitchurch (Lab)]

I am not quite sure about the groupings, either, but let us go with what we have. I thank noble Lords who have spoken, and the noble Viscount, Lord Camrose, for his amendments. I hope I am able to provide some reassurance for him on the points he raised.

As I said when considering the previous group, the Bill does not expand the definition of scientific research. The reasonableness test, along with clarifying the requirement for researchers to have a lawful basis, will significantly reduce the misuse of the existing definition. The amendment seeks to reduce the potential for misuse of the definition of scientific research by commercial companies using AI by requiring scientific researchers for a commercial company to submit their research to an ethics committee. As I said on the previous group, making it a mandatory requirement for all research may impede studies in areas that might have their own bespoke ethical procedures. This may well be the case in a whole range of different research areas, particularly in the university sector, and in sectors more widely. Some of this research may be very small to begin with but might grow in size. The idea that a small piece of start-up research has to be cleared for ethical research at an early stage is expecting too much and will put off a lot of the new innovations that might otherwise come forward.

Amendment 80 relates to Clause 71 and the reuse of personal data. This would put at risk valuable research that relies on data originally generated from diverse contexts, since the difference between the purposes may not always be compatible.

Turning to Amendment 67, I can reassure noble Lords that the concept of broad consent is not new. Clause 68 reproduces the text from the current UK GDPR recitals because the precise definition of scientific research may become clear only during later analysis of the data. Obtaining broad consent for an area of research from the outset allows scientists to focus on potentially life-saving research. Clause 68 has important limitations. It cannot be used if the researcher already knows the specific purpose—an important safeguard that should not be removed. It also includes a requirement to give the data subject the choice to consent to only part of the research processing, if possible. Most importantly, the data subject can revoke their consent at any point. I hope this reassures the noble Viscount, Lord Camrose, and he feels content to withdraw his amendment on this basis.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, when the noble Lord, Lord Clement-Jones, opened his speech he said that he hoped that noble Lords would be made of strong stuff while he worked his way through it. I have a similar request regarding my response: please bear with me. I will address these amendments slightly out of order to ensure that related issues are grouped together.

The Schedule 4 stand part notice, and Amendments 73 and 75, tabled by the noble Lord, Lord Clement-Jones, and supported by the noble Baroness, Lady Kidron, would remove the new lawful ground of “recognised legitimate interests” created by Clause 70 and Schedule 4 to the Bill. The aim of these provisions is to give data controllers greater confidence about processing personal data for specified and limited public interest objectives. Processing that is necessary and proportionate to achieve one of these objectives can take place without a person’s consent and without undertaking the legitimate interests balancing test. However, they would still have to comply with the wider requirements of data protection legislation, where relevant, ensuring that the data is processed in compliance with the other data protection principles.

I say in response to the point raised by the noble Lord, Lord Cameron, that the new lawful ground of recognised legitimate interest will apply from the date of commencement and will not apply retrospectively.

The activities listed include processing of data where necessary to prevent crime, safeguarding national security, protecting children or responding to emergencies. They also include situations where a public body requests that a non-public body share personal data with it to help deliver a public task that is sanctioned by law. In these circumstances, it is very important that data is shared without delay, and removal of these provisions from the Bill, as proposed by the amendment, could make that harder.

Amendment 74, tabled by noble Lord, Lord Scriven, would prevent health data being processed as part of this new lawful ground, but this could have some unwelcome effects. For example, the new lawful ground is designed to give controllers greater confidence about reporting safeguarding concerns, but if these concerns relate to a vulnerable person’s health, they would not be able to rely on the new lawful ground to process the data and would have to identify an alternative lawful ground.

On the point made by the noble Lord, Lord Clement-Jones, about which data controllers can rely on the new lawful ground, it would not be available to public bodies such as the NHS; it is aimed at non-public bodies.

I reassure noble Lords that there are still sufficient safeguards in the wider framework. Any processing that involves special category data, such as health data, would also need to comply with the conditions and safeguards in Article 9 of the UK GDPR and Schedule 1 to the Data Protection Act 2018.

Amendment 78A, tabled by the noble Lord, Lord Clement-Jones, would remove the new lawful ground for non-public bodies or individuals to disclose personal data at the request of public bodies, where necessary, to help those bodies deliver their public interest tasks without carrying out a legitimate interest balance test. We would argue that, without it, controllers may lack certainty about the correct lawful ground to rely on when responding to such requests.

Amendment 76, also tabled by the noble Lord, Lord Clement-Jones, would remove the powers of regulations in Clause 70 that would allow the Secretary of State to keep the list of recognised legitimate interests up to date. Alternatively, the noble Lord’s Amendment 78 would require the Secretary of State to publish a statement every time he added a new processing activity to the list, setting out its purpose, which controllers it was aimed at and for how long they can use it. I reassure the noble Lord that the Government have already taken steps to tighten up these powers since the previous Bill was considered by this House.

Any new processing activities added would now also have to serve

“important objectives of … public interest”

as described in Article 23.1 of the UK GDPR and, as before, new activities could be added to the list only following consultation with the ICO and other interested parties. The Secretary of State would also have to consider the impact of any changes on people’s rights and have regard to the specific needs of children. Although these powers are likely to be used sparingly, the Government think it important that they be retained. I reassure the Committee that we will be responding to the report from the Delegated Powers Committee within the usual timeframes and we welcome its scrutiny of the Bill.

The noble Lord’s Amendment 77 seeks to make it clear that organisations should also be able to rely on Article 6.1(f) to make transfers between separate businesses affiliated by contract. The list of activities mentioned in Clause 70 is intended to be illustrative only and is drawn from the recitals to the UK GDPR. This avoids providing a very lengthy list that might be viewed as prescriptive. Article 6.1(f) of the UK GDPR is flexible. The transmission of personal data between businesses affiliated by contract may constitute a legitimate interest, like many other commercial interests. It is for the controller to determine this on a case-by-case basis.

I will now address the group of amendments tabled by the noble Lord, Lord Clement-Jones, concerning the purpose limitation principle, specifically Amendments 83 to 86. This principle limits the ways that personal data collected for one purpose can be used for another, but Clause 71 aims to provide more clarity and certainty around how it operates, including how certain exemptions apply.

Amendment 84 seeks to clarify whether the first exemption in proposed new Annexe 2 to the UK GDPR would allow personal data to be reused for commercial purposes. The conditions for using this exemption are that the requesting controller has a public task or official authority laid down in law that meets a public interest objective in Article 23.1 of the UK GDPR. As a result, I and the Government are satisfied that these situations would be for limited public interest objectives only, as set out in law.

Amendments 85 and 86 seek to introduce greater transparency around the use of safeguarding exemptions in paragraph 8 of new Annexe 2. These conditions are drawn from the Care Act 2014 and replicated in the existing condition for sensitive data processing for safeguarding purposes in the Data Protection Act 2018. I can reassure the Committee that processing cannot occur if it does not meet these conditions, including if the vulnerability of the individual no longer exists. In addition, requiring that an assessment be made and given to the data subject before the processing begins could result in safeguarding delays and would defeat the purpose of this exemption.

Amendment 83 would remove the regulation-making powers associated with this clause so that new exceptions could not be added in future. I remind noble Lords that there is already a power to create exemptions from the purpose limitation principle in the DPA 2018. This Bill simply moves the existing exemptions to a new annexe to the UK GDPR. The power is strictly limited to the public objectives listed in Article 23.1 of the UK GDPR.

I now turn to the noble Lord’s Amendment 89, which seeks to set conditions under which pseudonymised data should be treated as personal data. This is not necessary as pseudonymised data already falls within the definition of personal data under Article 4.1 of the UK GDPR. This amendment also seeks to ensure that a determination by the ICO that data is personal data applies

“at all points in that processing”.

However, the moment at which data is or becomes personal should be a determination of fact based on its identifiability to a living individual.

I turn now to Clause 74 stand part, together with Amendment 90. Noble Lords are aware that special categories of data require additional protection. Article 9 of the UK GDPR sets out an exhaustive list of what is sensitive data and outlines processing conditions. Currently, this list cannot be amended without primary legislation, which may not always be available. This leaves the Government unable to respond swiftly when new types of sensitive data are identified, including as a result of emerging technologies. The powers in Clause 74 enable the Government to respond more quickly and add new special categories of data, tailor the conditions applicable to their use and add new definitions if necessary.

Finally, I turn to the amendment tabled by the noble Lord, Lord Clement-Jones, that would remove Schedule 7 from the Bill. This schedule contains measures to create a clearer and more outcomes-focused UK international data transfers regime. As part of these reforms, this schedule includes a power for the Secretary of State to recognise new transfer mechanisms for protecting international personal data transfers. Without this, the UK would be unable to respond swiftly to emerging developments and global trends in personal data transfers. In addition, the ICO will be consulted on any new mechanisms, and they will be subject to debate in Parliament under the affirmative resolution procedure.

I hope this helps explain the Government’s intention with these clauses and that the noble Lord will feel able to withdraw his amendment.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister. She covered quite a lot of ground and all of us will have to read Hansard quite carefully. However, it is somewhat horrifying that, for a Bill of this size, we had about 30 seconds from the Minister on Schedule 7, which could have such a huge influence on our data adequacy when that is assessed next year. I do not think anybody has talked about international transfers at this point, least of all me in introducing these amendments. Even though it may appear that we are taking our time over this Bill, we are not fundamentally covering all its points. The importance of this Bill, which obviously escapes most Members of this House—there are just a few aficionados—is considerable and could have a far-reaching impact.

I still get Viscount Camrose vibes coming from the Minister.

Data (Use and Access) Bill [HL]

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Tuesday 3rd December 2024 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, I am not sure whether I should open by saying that it is a pleasure to take part in the passage of the third iteration of this Bill, but, as I said at Second Reading, this is an improvement. Nevertheless, there are aspects of the Bill that need close scrutiny.

The noble Viscount, Lord Camrose, explained his approach to this Bill. Our approach is that we very much support the use of data for public benefit but, at the same time, we want to make sure that this Bill does not water down individual data rights and that they are, where necessary, strengthened. In that spirit, I wish to ask the Minister about the general nature of Clause 1, rather than following up on the amendments tabled by the noble Viscount.

The definition of “business data” seems quite general. A report that came out yesterday, Data On Our Minds: Affective Computing At Work, highlighted the kinds of data that are now being collected in the workplace. It is a piece of work sponsored by the Joseph Rowntree Charitable Trust, the Trust for London and the Institute for the Future of Work. They are concerned about the definition of “business data”. The Minister probably will not have an answer on this matter at this stage but it would be useful if she could write in due course to say whether the definition of excludes emotional data and neurosurveillance data collected from employees.

This is very much a workplace question rather than a question about the customer; I could ask the same question about the customer, I suppose, except the report is about workplace data collection. I thought I would opportunistically take advantage of the rather heavy de-grouping that has taken place and ask the Minister a question.

[The Parliamentary Under-Secretary of State, Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

First, let me say what a pleasure it is to be back on this old ground again, although with slightly different functions this time round. I very much support what the noble Viscount, Lord Camrose, said. We want to get the wording of this Bill right and to have a robust Bill; that is absolutely in our interests. We are on the same territory here. I thank the noble Viscount and other noble Lords for expressing their interest.

On Amendments 1 and 2, the Government consider the terms used in Part 1, as outlined in Clause 1, necessary to frame the persons and the data to which a scheme will apply. The noble Lord, Lord Clement-Jones, mentioned the powers. I assure him that the powers in Part 1 sit on top of the Data Protection Act. They are not there instead of it; they are another layer on top of it, and they provide additional rights over and above what already exists.

In relation to the specific questions from the noble Viscount, Lord Camrose, and the noble Lord, Lord Markham, smart data schemes require suppliers or providers of goods, services or digital content to provide data. They are referred to as “traders” in accordance with recent consumer legislation, including the Consumer Rights Act 2015. The term “data holder” ensures that the requirements may also be imposed on any third party that might hold the data on the trader’s behalf. That is why these additional terminologies have been included: it is based on existing good legislation. I hope noble Lords will recognise why this is necessary and that this explains the rationale for these terms. These terms are independent of terms in data protection legislation; they have a different scope and that is why separate terms are necessary. I hope that, on that basis, the noble Viscount will withdraw his amendment.

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[Lord Clement-Jones (LD)]

Does the Minister have any thoughts about where smart data schemes might be introduced? I am sure that they are being introduced for a purpose. Is there a plan to issue a policy document or is it purely about consulting different sectors? Perhaps the Minister can give us a glimpse of the future.

[Baroness Jones of Whitchurch (Lab)]

The noble Lord is tempting me. What I would say is that, once this legislation is passed, it will encourage departments to look in detail at where they think smart data schemes can be applied and provide a useful service for customers and businesses alike. I know that one issue that has been talked about is providing citizens with greater information about their energy supplies—the way that is being used and whether they can use their energy differently or find a different supplier—but that is only one example, and I do not want people to get fixated on it.

The potential is enormous; I feel that we need to encourage people to think creatively about how some of these provisions can be used when the Bill is finally agreed. There is a lot of cross-government thinking at the moment and a lot of considering how we can empower citizens more. I could say a lot off the top of my head but putting it on the record in Hansard would probably be a mistake, so I will not be tempted any more by the noble Lord. I am sure that he can write to me with some suggestions, if he has any.

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[Baroness Jones of Whitchurch (Lab)]

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

[Lord Clement-Jones (LD)]

Was the Minister saying that in view of the current duties of the ICO, Amendment 50 is not needed because public authorities will have the duty to inform the ICO of the information that they have been passing across to these identity services?

[Baroness Jones of Whitchurch (Lab)]

Again, I will have to write to the noble Lord on that. I think we were saying that it is outside the current obligations of the ICO, but we will clarify the responsibility.

[Lord Clement-Jones (LD)]

My Lords, I am not quite sure whether to be reassured or not because this is terra incognita. I am really struggling, given the Minister’s response. This is kind of saying, “Hands off, Parliament, we want the lightest touch on all of this, and the Secretary of State will decide”.

I should first thank the noble Baroness, Lady Kidron, for her support. I thought that the noble Viscount, Lord Colville, made an extremely good case for Amendment 35 because all of us want to make sure that we have that interoperability. One of the few areas where I was reassured by the Minister was on the consultations taking place.

I am sure that the noble Viscount, Lord Camrose, was right to ask what the consultations are. We need to be swimming in the right pool for our digital services to be interoperable. It is not as if we do not have contact with quite a number of these digital service providers. Some of them are extremely good and want a level of mandation for these international services. There is a worrying lack of detail here. We have devil and the deep blue sea. We have these rules on GOV.UK which are far too complicated for mere parliamentarians to comprehend. They are so detailed that we are going to get bogged down.

On the other hand, we do not know what the Secretary of State is doing. This is the detailed trust framework, but what is the governance around it? At the beginning of her speech, the Minister said that governance is different from certification and the conformity assessment service. I would have thought that governance was all part of the same warp and weft. I do not really understand. The Secretary of State has the power to refuse accreditation, so we do not need an independent appeals body. It would be much more straightforward if we knew that there was a regulator and that it was going to be transparent in terms of how the system worked. I just feel that this is all rather half baked at the moment. We need a lot more information than we are getting. To that extent, that is the case for all the amendments in this group.

The crucial amendment is Amendment 37 tabled by the noble Viscount, Lord Camrose, because we absolutely need to bring all this into the light of day by parliamentary approval, whether or not it is a complicated document. Perhaps we could put it through an AI model and simplify it somewhat before we debate it. We have to get to grips with this. I have a feeling that we are going to want to return to this aspect on Report because no good reason has been given, not to the DPRRC either, about why we are not debating this in Parliament in terms of the scheme itself. It is a bit sad to have to say this because we all support the digital verification progress, if you like. Yet, we are all in a bit of a fog about how it is all going to work.

I very much hope that the Minister can come back to us, perhaps with a must-write letter that sets it all out to a much more satisfactory extent. I hope she understands why we have had this fairly protracted debate on this group of amendments because this is an important aspect that the Bill is skeletal about. I beg leave to withdraw the amendment.

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[Baroness Jones of Whitchurch (Lab)]

I am grateful to the noble Viscount for joining me in my enthusiasm for NUAR. He is right: having seen it in practice, I am a great enthusiast for it. If it is possible to demonstrate it to other people, I would be very happy to do so, because it is quite a compelling story when you see it in practice.

Amendment 56, in the name of the noble Lord, Lord Clement-Jones, would place a duty on the Secretary of State to consult relevant private sector organisations before implementing the NUAR provisions under the Bill. I want to make clear then that the Geospatial Commission, which oversees NUAR, has been engaging with stakeholders on NUAR since 2018. Since then, there have been extensive reviews of existing processes and data exchange services. That includes a call for evidence, a pilot project, public consultation and numerous workshops. A series of in-person focus groups were completed last week and officials have visited commercial companies with specific concerns, including LinesearchbeforeUdig, so there has been extensive consultation with them.

I suppose one can understand why they feel slightly put out about NUAR appearing on the scene, but NUAR is a huge public asset that we should celebrate. We can potentially use it in other ways for other services in the future, once it is established, and we should celebrate the fact that we have managed to create it as a public asset. I say to the noble Lord, Lord Clement-Jones, that a further consultation on that basis would provide no additional benefit but would delay the realisation of the significant benefits that NUAR could deliver.

Moving on to the noble Lord’s other amendments, Amendments 193, 194, and 195, he is absolutely right about the need for data interoperability in the health service. We can all think of examples of where that would be of benefit to patients and citizens. It is also true that we absolutely need to ensure that our health and care system is supported by robust information standards. Again, we go back to the issue of trust: people need to know that those protections are there.

This is why we would ensure, through Clause 119 and Schedule 15, that suppliers of IT products and services used in the provision of health or adult social care in England are required to meet relevant information standards. In doing so, we can ensure that IT suppliers are held to account where information standards are not implemented. The application of information standards is independent of commercial organisations, and we would hold IT companies to them. Furthermore, the definition of healthcare as set out in the Health and Social Care Act 2012, as amended by the Health and Care Act 2022, already ensures that all forms of healthcare are within scope of information standards, which would include primary care. That was one of the other points that the noble Lord made.

As an add-on to this whole discussion, the noble Lord will know that the Government are preparing the idea of a national data library, which would encourage further interoperability between government departments to make sure that we use it to improve services. Health and social care is the obvious one, but the members of the Committee can all think of all sorts of other ways where government departments, if they collaborated on an interoperable basis, could drive up standards and make life easier for a whole lot of citizens in different ways. We are on the case and are absolutely determined to deliver it. I hope that, on that basis, the noble Lord will withdraw his amendment.

[Lord Clement-Jones (LD)]

I am sorry to interrupt the Minister, but she has whetted our appetite about the national data library. It is not included in the Bill. We talked about it a little at Second Reading, but I wonder whether she can tell us a little more about what is planned. Is it to be set up on a statutory basis or is it a shadow thing? What substance will it actually have and how?

[Baroness Jones of Whitchurch (Lab)]

Well, details of it were in our manifesto, in as much as a manifesto is ever detailed. It is a commitment to deliver cross-departmental government services and create a means whereby some of the GDPR blockages that stop one department speaking to another can, where necessary, be freed up to make sure that people exchange data in a more positive way to improve services. There will be more details coming out. It is a work in progress at the moment and may well require some legislation to underpin it. There is an awful lot of work to be done in making sure that one dataset can talk to another before we can progress in any major way, but we are working at speed to try to get this new system up and running.

[Lord Clement-Jones (LD)]

I thank the Minister for that, which was very interesting. We were talking about medical health IT and “GDPR blockages” almost has a medical quality to it. The embryonic national data library will obviously get some more mentions as we go through the Bill. It is a work in progress, so I hope that we will know more at the end of the Bill than we did at the beginning.

The Minister talked about datasets talking to each other. We will have to get the noble Viscount, Lord Camrose, to use other phrases, not just “Netflix in the age of Blockbuster” but something equally exciting about datasets talking to each other.

--- Later in debate ---

[Lord Clement-Jones (LD)]

I only come up with the really positive ones.

[Baroness Jones of Whitchurch (Lab)]

We support this service, of course—we can see the potential for expanding it further if we get this measure right—but I have to tell noble Lords that the current service is not in great shape in terms of its technology. It has suffered from insufficient investment over time and it needs to be improved before we can take it to the next stage of its potential. We consider that the best way to address this issue is, first, to upgrade its legacy technology, which is what we are operating at the moment. I realised that this is a problem only as I took over this brief; I had assumed that it would be more straightforward, but the problem seems to be that we are operating on ancient technology here.

Work is already under way to try to bring it all up to date. We are looking to improve the current service and at the opportunities to extend it to more of government. Our initial task is to try to extend it to some of the government departments that do not recognise it at the moment. Doing that will inform us of the potential limitations and the opportunities should we wish to extend it to the private sector in future. I say to the noble Lord that this will have to be a stage process because of the technological challenges that we currently have.

We are reluctant to commit to a review and further expansion of the service at this time but, once the service is updated, we would absolutely be happy to talk to noble Lords and revisit this issue, because we see the potential of it. The update is expected to be completed in the next two years; I hope that we will be able to come back and give a progress report to noble Lords at that time. However, I have to say, this is what we have inherited—bear with us, because we have a job to do in bringing it up to date. I hope that, on that basis, the noble Lord will withdraw his amendment, albeit reluctantly.

Generative AI: Intellectual Property Rights

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Monday 11th November 2024 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, the AI and creative sectors are both essential to our mission to grow the UK economy. Our goal is to find the right balance between fostering innovation in AI while ensuring protection for creators and our vibrant creative industries. This is an important but complex area and we are very aware of the need to resolve the issues. We are working with stakeholders to understand their views and will set out our next steps soon.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for that reply, but the Prime Minister, in a recent letter to the News Media Association, said:

“We recognise the basic principle that publishers should have control over and seek payment for their work, including when thinking about the role of AI”.


Will the Minister therefore agree with the House of Lords Communications and Digital Committee and affirm the rights of copyright owners in relation to their content used for training purposes on large language models? Will she rule out any widening of the text and data-mining exception and include in any future AI legislation a duty on developers to keep records of the material and data used to train their AI models?

[Baroness Jones of Whitchurch (Lab)]

My Lords, I pay tribute to the Lords committee that has considered this issue. We are keen to make progress in this area but it is important that we get it right. The previous Government had this on their table for a long time and were not able to resolve it. The Intellectual Property Office, DSIT and DCMS are working together to try to find a way forward that will provide a solution for creative media and the AI sectors. Ministers—my colleagues Chris Bryant and Feryal Clark—held round tables with representatives of the creative industries and the AI sector recently, and we are looking at how we can take this forward to resolve the many issues and questions that the noble Lord has quite rightly posed for me today.

Online Safety Act 2023 (Priority Offences) (Amendment) Regulations 2024

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Monday 28th October 2024 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, these regulations were laid before the House on 12 September this year. The Government stated in their manifesto that they would

“use every government tool available to target perpetrators and address the root causes of abuse and violence”

in order to achieve their

“landmark mission to halve violence against women and girls in a decade”.

Through this statutory instrument, we are broadening online platforms’ and search engines’ responsibilities for tackling intimate image abuse under the Online Safety Act. More than one in three women have experienced abuse online. The rise in intimate image abuse is not only devastating for victims but also spreads misogyny on social media that can develop into potentially dangerous relationships offline. One in 14 adults in England and Wales has experienced threats to share intimate images, rising to one in seven young women aged 18 to 34.

It is crucial that we tackle these crimes from every angle, including online, and ensure that tech companies step up and play their part. That is why we are laying this statutory instrument. Through it, we will widen online platforms’ and search engines’ obligations to tackle intimate image abuse under the Online Safety Act. As noble Lords will know, the Act received Royal Assent on 26 October 2023. It places strong new duties on online user-to-user platforms and search services to protect their users from harm.

As part of this, the Act gives service providers new “illegal content duties”. Under these duties, online platforms need to assess the risk that their services will allow users to encounter illegal content or be

“used for the commission or facilitation of a priority offence”.

They then need to take steps to mitigate identified risks. These will include implementing safety-by-design measures to reduce risks and content moderation systems to remove illegal content where it appears.

The Online Safety Act sets out a list of priority offences for the purposes of providers’ illegal content duties. These offences reflect the most serious and prevalent online illegal content and activity. They are set out in schedules to the Act. Platforms will need to take additional steps to tackle these kinds of illegal activities under their illegal content duties.

The priority offences list currently includes certain intimate image abuse offences. Through this statutory instrument, we are adding new intimate image abuse offences to the priority list. This replaces an old intimate image abuse offence, which has now been repealed. These new offences are in the Sexual Offences Act 2003. They took effect earlier this year. The older offence was in the Criminal Justice and Courts Act 2015. The repealed offence covered sharing intimate images where the intent was to cause distress. The new offences are broader; they criminalise sharing intimate images without having a reasonable belief that the subject would consent to sharing the images. These offences include the sharing of manufactured or manipulated images, including so-called deepfakes.

Since these new offences are more expansive, adding them as priority offences means online platforms will be required to tackle more intimate image abuse on their services. This means that we are broadening the scope of what constitutes illegal intimate image content in the Online Safety Act. It also makes it clear that platforms’ priority illegal content duties extend to AI-generated deepfakes and other manufactured intimate images. This is because the new offences that we are adding explicitly cover this content.

As I have set out above, these changes affect the illegal content duties in the Online Safety Act. They will ensure that tech companies play their part in kicking this content off social media. These are just part of a range of wider protections coming into force next spring through the Online Safety Act that will mean that social media companies have to remove the most harmful illegal content, a lot of which disproportionately affects women and girls, such as through harassment and controlling or coercive behaviour.

Ofcom will set out the specific steps that providers can take to fulfil their illegal content duties for intimate image abuse and other illegal content in codes of practice and guidance documentation. It is currently producing this documentation. We anticipate that the new duties will start to be enforced from spring next year once Ofcom has issued these codes of practice and they have come into force. Providers will also need to have done their risk assessment for illegal content by then. We anticipate that Ofcom will recommend that providers should take action in a number of areas. These include content moderation, reporting and complaints procedures, and safety-by-design steps, such as testing their algorithm systems to see whether illegal content is being recommended to users. We are committed to working with Ofcom to get these protections in place as quickly as possible. We are focused on delivering.

Where companies are not removing and proactively stopping this vile material appearing on their platforms, Ofcom will have robust powers to take enforcement action against them. This includes imposing fines of up to £18 million or 10% of qualifying worldwide revenue, whichever is highest.

In conclusion, through this statutory instrument we are broadening providers’ duties for intimate image abuse content. Service providers will need to take proactive steps to search for, remove and limit people’s exposure to this harmful kind of illegal content, including where it has been manufactured or manipulated. I hope noble Lords will commend these further steps that we have taken that take the provisions in the Online Safety Act a useful further step forward. I commend these regulations to the Committee, and I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for her introduction. I endorse everything she said about intimate image abuse and the importance of legislation to make sure that the perpetrators are penalised and that social media outlets have additional duties under Schedule 7 for priority offences. I am absolutely on the same page as the Minister on this, and I very much welcome what she said. It is interesting that we are dealing with another 2003 Act that, again, is showing itself fit for purpose and able to be amended; perhaps there is some cause to take comfort from our legislative process.

I was interested to hear what the Minister said about the coverage of the offences introduced by the Online Safety Act. She considered that the sharing of sexually explicit material included deepfakes. There was a promise—the noble Viscount will remember it—that the Criminal Justice Bill, which was not passed in the end, would cover that element. It included intent, like the current offence—the one that has been incorporated into Schedule 7. The Private Member’s Bill of the noble Baroness, Lady Owen—I have it in my hand—explicitly introduces an offence that does not require intent, and I very much support that.

I do not believe that this is the last word to be said on the kinds of IIA offence that need to be incorporated as priority offences under Schedule 7. I would very much like to hear what the noble Baroness has to say about why we require intent when, quite frankly, the creation of these deepfakes requires activity that is clearly harmful. We clearly should make sure that the perpetrators are caught. Given the history of this, I am slightly surprised that the Government’s current interpretation of the new offence in the Online Safety Act includes deepfakes. It is gratifying, but the Government nevertheless need to go further.

Communications Act 2003 (Disclosure of Information) Order 2024

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Monday 28th October 2024 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, this order was laid before the House on 9 September this year. The Online Safety Act lays the foundations of strong protection for children and adults online. I am grateful to noble Lords for their continued interest in the Online Safety Act and its implementation. It is critical that the Act is made fully operational as soon as possible, and the Government are committed to ensuring that its protections are delivered as soon as possible. This statutory instrument will further support the implementation of the Act by Ofcom.

This statutory instrument concerns Ofcom’s ability to share business information with Ministers for the purpose of fulfilling functions under the Online Safety Act 2023, under Section 393 of the Communications Act 2003. This corrects an oversight in the original Online Safety Act that was identified following its passage.

Section 393 of the Communications Act 2003 contains a general restriction on Ofcom disclosing information about particular businesses without consent from the affected businesses, but with exemptions, including where this facilitates Ofcom in carrying out its regulatory functions and facilitates other specified persons in carrying out specific functions. However, this section does not currently enable Ofcom to share information with Ministers for the purpose of fulfilling functions under the Online Safety Act. This means that, were Ofcom to disclose information about businesses to the Secretary of State, it may be in breach of the law.

It is important that a gateway exists for sharing information for these purposes so that the Secretary of State can carry out functions under the Online Safety Act, such as setting the fee threshold for the online safety regime in 2025 or carrying out post-implementation reviews of the Act required under Section 178. This statutory instrument will therefore amend the Communications Act 2003 to allow Ofcom to share information with the Secretary of State and other Ministers, strictly for the purpose of fulfilling functions under the Online Safety Act 2023.

There are strong legislative safeguards and limitations on the disclosure of this information, and Ofcom is experienced in handling confidential and sensitive information obtained from the services it regulates. Ofcom must comply with UK data protection law and would need to show that the processing of any personal data was necessary for a lawful purpose. As a public body, Ofcom is also required to act compatibly with the Article 8 right of privacy under the European Convention on Human Rights.

We will therefore continue to review the Online Safety Act, so that Ofcom is able to support the delivery of functions under the Act where it is appropriate. That is a brief but detailed summary of why this instrument is necessary. I should stress that it contains a technical amendment to deal with a very small legal aspect. Nevertheless, I will be interested to hear noble Lords’ comments on the SI. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for her introduction and for explaining the essence of the SI. We all have a bit of pride of creation in the Online Safety Act; there are one or two of us around today who clearly have a continuing interest in it. This is one of the smaller outcomes of the Act and, as the Minister says, it is an essentially an oversight. I would say that a tidying-up operation is involved here. It is rather gratifying to see that the Communications Act still has such importance, 21 years after it was passed. It is somewhat extraordinary for legislation to be invoked after that period of time in an area such as communications, which is so fast-moving.

My question for the Minister is whether the examples that she gave or which were contained in the Explanatory Memorandum, regarding the need for information to be obtained by the Secretary of State in respect of Section 178, on reviewing the regulatory framework, and Section 86, on the threshold for payment of fees, are exclusive. Are there other aspects of the Online Safety Act where the Secretary of State requires that legislation?

We are always wary of the powers given to Secretaries of State, as the noble Viscount, Lord Camrose, will probably remember to his cost. But at every point, the tyres on legislation need to be kicked to make sure that the Secretary of State has just the powers that they need—and that we do not go further than we need to or have a skeleton Bill, et cetera—so the usual mantra will apply: we want to make sure that the Secretary of State’s powers are proportionate.

It would be very useful to hear from the Minister what other powers are involved. Is it quite a number, were these two just the most plausible or are there six other sets of powers which might not be so attractive? That is the only caveat I would make in this respect.

Independent Pornography Review

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Monday 14th October 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

The noble Lord is absolutely right. The scale of violent images featuring women and girls in our country is intolerable, and this Government will treat it as the national emergency it is. The noble Lord will be pleased to hear that the Government have set out an unprecedented mission to halve violence against women and girls within a decade. We are using every government tool we have to target the perpetrators and address the root cause of violence. That involves many legislative and non-legislative measures, as the noble Lord will appreciate, including tackling the education issue. However, ultimately, we have to make sure that the legislation is robust and that we take action, which we intend to do.

[Lord Clement-Jones (LD)]

My Lords, as the Minister and others have mentioned, there is considerable and increasing concern about deepfake pornographic material, particularly the so-called nudification apps, which can be easily accessed by users of any age. What action will the Government be taking against this unacceptable technology, and will an offence be included in the forthcoming crime and policing Bill?

[Baroness Jones of Whitchurch (Lab)]

The noble Lord raises an important point. Where nudification apps and other material do not come under the remit of the Online Safety Act, we will look at other legislative tools to make sure that all new forms of technology—including AI and its implications for online images —are included in robust legislation, in whatever form it takes. Our priority is to implement the Online Safety Act, but we are also looking at what other tools might be necessary going forward. As the Secretary of State has said, this is an iterative process; the Online Safety Act is not the end of the game. We are looking at what further steps we need to take, and I hope the noble Lord will bear with us.

AI Technology Regulations

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Tuesday 30th July 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

I thank my noble friend for those good wishes. Of course, he is raising a really important issue of great concern to all of us. During the last election, we felt that the Government were well prepared to ensure the democratic integrity of our UK elections. We did have robust systems in place to protect against interference, through the Defending Democracy Taskforce and the Joint Election and Security Preparedness unit. We continue to work with the Home Office and the security services to assess the impact of that work. Going forward, the Online Safety Act goes further by putting new requirements on social media platforms to swiftly remove illegal misinformation and disinformation, including where it is AI-generated, as soon as it becomes available. We are still assessing the need for further legislation in the light of the latest intelligence, but I assure my noble friend that we take this issue extremely seriously. It affects the future of our democratic process, which I know is vital to all of us.

[Lord Clement-Jones (LD)]

My Lords, I welcome the creation of an AI opportunities plan, announced by the Government, but, as the noble Lord, Lord Knight, says, we must also tackle the risks. In other jurisdictions across the world, including the EU, AI-driven live facial recognition technology is considered to seriously infringe the right to privacy and have issues with accuracy and bias, and is being banned or restricted for both law enforcement and business use. Will the Government, in their planned AI legislation, provide equivalent safeguards for UK citizens and ensure their trust in new technology?

[Baroness Jones of Whitchurch (Lab)]

I thank the noble Lord for that question and for all the work he has done on the AI issue, including his new book, which I am sure is essential reading over the summer for everybody. I should say that several noble Lords in this Chamber have written books on AI, so noble Lords might want to consider that for their holiday reading.

The noble Lord will know that the use and regulation of live facial recognition is for each country to decide. We already have some regulations about it, but it is already governed by data protection, equality and human rights legislation, supplemented by specific police guidance. It is absolutely vital that its use is only when it is necessary, proportionate and fair. We will continue to look at the legislation and at whether privacy is being sufficiently protected. That is an issue that will come forward when the future legislation is being prepared.

Digital Markets, Competition and Consumers Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Consideration of Commons amendments
Thursday 23rd May 2024 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I do not propose to go over old competition ground, but like the noble Lord, Lord Moynihan, our attitude to Motion A is not to oppose it but to be somewhat disappointed at the Government’s response; on the other hand, we welcome the fact that they have added new enforcement proposals and provisions and the promised review. I think it is quite unaccountable that they have resisted the almost irresistible force of the noble Lord, Lord Moynihan; it has been a sight to behold his persistence throughout not only this Bill but previous Bills. I am quite confident that eventually his campaigning will bear fruit because, when we look at the terms of the amendments that were not agreed to by the Commons on providing evidence of proof of purchase and of title to tickets, among other things they are only common sense and very good consumer protection.

I add my thank you valedictory to the Minister, his colleague the noble Viscount, Lord Camrose, who I see is riding shotgun today, and the noble Lord, Lord Parkinson, who made a cameo appearance on the Bill and was the Minister involved very heavily in the Online Safety Bill proceedings. Both Ministers have always been willing to engage. They have not always conceded, but they have always listened, so I thank them very much indeed for all their service. It has been a pretty long ride when one looks back to the beginning of the suite of digital Bills in the past two years, starting with the Online Safety Bill, then the digital markets Bill, and now the non-lamented data protection Bill, and I look forward to further digital legislation in the autumn or the beginning of next year.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I add my thanks, first, to the Ministers. As the noble Lord, Lord Clement-Jones, said, they have worked assiduously, and we have felt as if we were constantly in their company over the past six months or so. They have always been courteous and had a listening ear, and I thank them for that. I, too, add my thanks to the members of the Bill team for all their hard work in preparing the Bill and the quite substantial amendments on occasions that have been agreed on concession. I particularly thank the stakeholders in the wider scope of the Bill, the challenger firms and the consumers who have been so active in helping us shape what is becoming a good Bill.

I am sorry that the Government did not see the sense of what I thought was an extremely reasonable amendment from the noble Lord, Lord Moynihan. We remain hugely disappointed in Motion A for the reasons that we have ready rehearsed which I do not need to repeat. I particularly thank the noble Lord, Lord Moynihan, and Sharon Hodgson who have campaigned on this issue for many years. I hope that in due course they will get their reward.

I have to say that, if elected, a Labour Government would strengthen consumer rights legislation to protect fans from fraudulent ticket practices, to restrict the sale of more tickets than permissible and to ensure that anyone buying a ticket on the secondary market can see clearly the original price and where it comes from. We will put the interests of the fans and the public first on this. Nevertheless, we believe overall that this is a good Bill that takes the first steps to regulating the behaviour of the big tech companies, which is long overdue, giving a bit more security to challenger firms and adding protection to consumer rights. We are grateful for the concessions made along the way that have indeed improved the Bill. At this stage in the proceedings, we think it is right that the Bill do now pass and that we do not need to debate it any further.

Data Protection and Digital Information Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Wednesday 24th April 2024 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, has not that demonstrated the disproportionality of these measures?

[Baroness Jones of Whitchurch (Lab)]

The noble Viscount explained in response to the noble Lord, Lord Anderson, that at every stage where the powers are going to be expanded, it would come back as an affirmative regulation. I might have been a bit slow about this, but I have been having a look and I cannot see where it says that. Perhaps he could point that out to me, because that would provide some reassurance that each stage of this is coming back to us.

[Viscount Younger of Leckie (Con)]

I understand, very quickly, that it is in paragraph 1(1), but again, in the interests of time, maybe we could talk about that outside the Room.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I am afraid that I will speak to every single one of the amendments in this group but one, which is in the name of the noble Baroness, Lady Jones, and I have signed it. We have already debated the Secretary of State’s powers in relation to what will be the commission, in setting strategic priorities for the commissioner under Clause 32 and recommending the adoption of the ICAO code of practice before it is submitted to Parliament for consideration under Clause 33:

“Codes of practice for processing personal data”.


We have also debated Clause 34:

“Codes of practice: panels and impact assessments”.


And we have debated Clause 35:

“Codes of Practice: Secretary of States recommendations”.


The Secretary of State has considerable power in relation to the new commission, and then on top of that Clause 143 and Schedule 15 to the Bill provide significant other powers for the Secretary of State to interfere with the objective and impartial functioning of the information commission by the appointment of non-executive members of the newly formed commission. The guarantee of the independence of the ICO is intended to ensure the effectiveness and reliability of its regulatory function and that the monitoring and enforcement of data protection laws are carried out objectively and free from partisan or extra-legal considerations.

These amendments would limit the Secretary of State’s powers and leeway to interfere with the objective and impartial functioning of the new information commission, in particular by modifying Schedule 15 to the Bill to transfer budget responsibility and the appointment process of the non-executive members of the information commission to the relevant Select Committee. If so amended, the Bill would ensure that the new information commission has sufficient arm’s-length distance from the Government to oversee public and private bodies’ uses of personal data with impartiality and objectivity. DSIT’s delegated powers memorandum to the DPRRC barely mentions any of these powers, yet they are of considerable importance. Therefore, I am not surprised that there was no mention of them, but they are very significant.

We have discussed data adequacy before; of course, in his letter to us, the Minister tried to rebut some of the points we made about it. In fact, he quoted somebody who has briefed me extensively on it and has taken a very different view to the one he alleges she took in a rather partial quotation from evidence taken by the European Affairs Committee, which is now conducting an inquiry into data adequacy and its implications for the UK-EU relationship. We were told by Open Rights Group attendees at a recent meeting with the European Commission that it expressed concern to those present about the risk that the Bill poses to the EU adequacy agreement; this was not under Chatham House rules. It expressed this risk in a meeting at which a number of UK groups were present, which is highly significant in itself.

I mentioned the European Affairs Committee’s inquiry. I understand that the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs has also given written evidence on its concerns about this Bill, its impact on adequacy and how it could impact the agreement. It put its arguments rather strongly. Has the Minister seen this? Is he aware of the written evidence that it has given to the European Affairs Select Committee? I suggest that he becomes aware of it and takes a view on whether we need to postpone Report until we have seen the European Affairs Select Committee’s report. If it comes to the conclusion that data adequacy is at risk, the Government will have to go back to the drawing board in a number of respects on this Bill. If the Select Committee report comes out and says that the impact of the Bill will not be data adequate, it would be rather foolish if we had already gone through Report by that time. Far be it from me not to want the Government to have egg on their face but it would be peculiar if they did not carefully observe the evidence being put to the European Affairs Select Committee and the progress that it is making in its inquiry. I beg to move.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for introducing his amendments so ably. When I read them, I had a strong sense of déjà vu as attempts by the Government to control the appointments and functioning of new regulators have been a common theme in other pieces of legislation that we have debated in the House and which we have always resisted. In my experience, this occurred most recently in the Government’s proposals for the Office for Environmental Protection, which was dealing with EU legislation being taken into by the UK and is effectively the environment regulator. We were able to get those proposals modified to limit the Secretary of State’s involvement; we should do so again here.

I very much welcome the noble Lord’s amendments, which give us a chance to assess what level of independence would be appropriate in this case. Schedule 15 covers the transition from the Information Commissioner’s Office to the appointment of the chair and non-executive members of the new information commission. We support this development in principle but it is crucial that the new arrangements strengthen rather than weaken the independence of the new commission.

The noble Lord’s amendments would rightly remove the rights of the Secretary of State to decide the number of non-executive members and to appoint them. Instead, his amendments propose that the chair of the relevant parliamentary committee should oversee appointments. Similarly, the amendments would remove the right of the Secretary of State to recommend the appointment and removal of the chair; again, this should be passed to the relevant parliamentary committee. We agree with these proposals, which would build in an additional tier of parliamentary oversight and help remove any suspicion that the Secretary of State is exercising unwarranted political pressure on the new commission.

The noble Lord’s amendments beg the question of what the relevant parliamentary committee might be. Although we are supportive of the wording as it stands, it is regrettable that we have not been able to make more progress on establishing a strong bicameral parliamentary committee to oversee the work of the information commission. However, in the absence of such a committee, we welcome the suggestion made in the noble Lord’s Amendment 256 that the Commons Science, Innovation and Technology Committee could fulfil that role.

Finally, we have tabled Amendment 259, which addresses what is commonly known as the “revolving door” whereby public sector staff switch to jobs in the private sector and end up working for industries that they were supposedly investigating and regulating previously. This leads to accusations of cronyism and corruption; whether or not there is any evidence of this, it brings the reputation of the whole sector into disrepute. Perhaps I should have declared an interest at the outset: I am a member of the Advisory Committee on Business Appointments and therefore have a ringside view of the scale of the revolving door taking place, particularly at the moment. We believe that it is time to put standards in public life back at the heart of public service; setting new standards on switching sides should be part of that. Our amendment would put a two-year ban on members of the information commission accepting employment from a business that was subject to enforcement action or acting for persons who are being investigated by the agency.

I hope that noble Lords will see the sense and importance of these amendments. I look forward to the Minister’s response.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, as ever, the noble Baroness, Lady Kidron, has nailed this issue. She has campaigned tirelessly in the field of child sexual abuse and has identified a major loophole.

What has been so important is learning from experience and seeing how these new generative AI models, which we have all been having to come to terms with them for the past 18 months, are so powerful in the hands of ordinary people who want to cause harm and sexual abuse. The important thing is that, under existing legislation, there are of course a number of provisions relating to creating deepfake child pornography, the circulation of pornographic deepfakes and so on. However, as the noble Baroness said, what the legislation does not do is go upstream to the AI system—the AI model itself—to make sure that those who develop those models are caught as well. That is what a lot of the discussion around deepfakes is about at the moment—it is, I would say, the most pressing issue—but it is also about trying to nail those AI system owners and users at the very outset, not waiting until something is circulated or, indeed, created in the first place. We need to get right up there at the outset.

I very much support what the noble Baroness said; I will reserve any other remarks for the next group of amendments.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am pleased that we were able to sign this amendment. Once again, the noble Baroness, Lady Kidron, has demonstrated her acute ability to dissect and to make a brilliant argument about why an amendment is so important.

As the noble Lord, Lord Clement-Jones, and others have said previously, what is the point of this Bill? Passing this amendment and putting these new offences on the statute book would give the Bill the purpose and clout that it has so far lacked. As the noble Baroness, Lady Kidron, has made clear, although it is currently an offence to possess or distribute child sex abuse material, it is not an offence to create these images artificially using AI techniques. So, quite innocent images of a child—or even an adult—can be manipulated to create child sex abuse imagery, pornography and degrading or violent scenarios. As the noble Baroness pointed out, this could be your child or a neighbour’s child being depicted for sexual gratification by the increasingly sophisticated AI creators of these digital models or files.

Yesterday’s report from the Internet Watch Foundation said that a manual found on the dark web encourages “nudifying” tools to remove clothes from child images, which can then be used to blackmail them into sending more graphic content. The IWF reports that the scale of this abuse is increasing year on year, with 275,000 web pages containing child sex abuse being found last year; I suspect that this is the tip of the iceberg as much of this activity is occurring on the dark web, which is very difficult to track. The noble Baroness, Lady Kidron, made a powerful point: there is a danger that access to such materials will also encourage offenders who then want to participate in real-world child sex abuse, so the scale of the horror could be multiplied. There are many reasons why these trends are shocking and abhorrent. It seems that, as ever, the offenders are one step ahead of the legislation needed for police enforcers to close down this trade.

As the noble Baroness, Lady Kidron, made clear, this amendment is “laser focused” on criminalising those who are developing and using AI to create these images. I am pleased to say that Labour is already working on a ban on creating so-called nudification tools. The prevalence of deepfakes and child abuse on the internet is increasing the public’s fear of the overall safety of AI, so we need to win their trust back if we are to harness the undoubted benefits that it can deliver to our public services and economy. Tackling this area is one step towards that.

Action to regulate AI by requiring transparency and safety reports from all those at the forefront of AI development should be a key part of that strategy, but we have a particular task to do here. In the meantime, this amendment is an opportunity for the Government to take a lead on these very specific proposals to help clean up the web and rid us of these vile crimes. I hope the Minister can confirm that this amendment, or a government amendment along the same lines, will be included in the Bill. I look forward to his response.

Data Protection and Digital Information Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Monday 22nd April 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, in moving Amendment 209, I will also speak to Amendment 210, and I thank the noble Lord, Lord Clement-Jones, for adding his support.

These amendments return to the major debate that we had on day 2 in Committee regarding direct marketing for the use of democratic engagement. It is fair to say that no-one was convinced by the Minister’s arguments about why that relaxation of the rules for political parties was necessary. We will no doubt return to that issue on Report, so I shall not repeat the arguments here. Meanwhile, Clause 113 leads into the democratic engagement provisions in the Bill and provides a soft opt-in for the use of electronic mail for direct marketing for charitable, political or other non-commercial activities when the data has been collected for other purposes.

As we made clear in the previous debate, we have not asked for these more relaxed rules about political electronic marketing. We believe that these provisions take us fundamentally in the wrong direction, acting against the interests of the electorate and risking damaging the already fragile level of trust between politicians and voters. However, we support extending the soft opt-in for charities and other non-commercial organisations. This is a measure that many charities have supported.

Of course, we want to encourage campaigning by charitable organisations to raise awareness of the critical issues of the day and encourage healthy debate, so extending their opportunities to use electronic marketing for this purpose could produce a healthy boost for civic engagement. This is what our amendments are hoping to achieve.

Therefore, our Amendments 209 and 210 would amend the wording of Clause 113 to remove the relaxation of the rules specifically for political parties and close the loophole by which some political parties may try to negate the provisions by describing themselves as non-commercial entities. We believe that this is the right way forward. Ideally, these amendments would be combined with the removal of the democratic engagement provisions in Clause 114 that we have already debated.

I hope noble Lords will see the sense of these proposals and that the Minister will agree to take these amendments away and rethink the whole proposition of Clauses 113 and 114. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, tracking the provenance of Clause 113 has been a very interesting exercise. If we think that Clause 114 is pretty politically motivated, Clause 113 is likewise. These rules relating to the fact that political parties cannot avail themselves of the soft opt-in provision have been there since 2005. The Information Commissioner issued guidance on political campaigning, and it was brought within the rules. Subsequently, there has been a ruling in a tribunal case which confirmed that: the SNP was issued with an enforcement notice and the information tribunal dismissed the appeal.

The Conservative Party was fined in 2021 for sending emails to people who did not ask for them. Then, lo and behold, there was a Conservative Party submission to the House of Lords Democracy and Digital Technologies Committee in 2020, and that submission has been repeated on a number of occasions. I have been trying to track how many times the submission has been made by the Conservative Party. The submission makes it quite clear that there is frustration in the Conservative Party. I have the written evidence here. It says:

“We have a number of concerns about the Information Commissioner’s draft code”—


as it then was: it is now a full code—

“on the use of data for political campaigning. In the interests of transparency, I enclose a copy of the response that the Conservative Party sent to the consultation. I … particularly flag the potential chilling effect on long-standing practices of MPs and councillors from engaging with their local constituents”.

Now, exactly as the noble Baroness has said, I do not think there is any call from other political parties to change the rules. I have not seen any submissions from any other political party, so I would very much like to know why the Government have decided to favour the Conservative Party in these circumstances by changing the rules. It seems rather peculiar.

The guidance for personal data in political campaigning, which I read while preparing for this debate, seems to be admirably clear. It is quite long, but it is admirably clear, and I congratulate the ICO on tiptoeing through the tulips rather successfully. However, the fact is that we have very clear guidance and a very clear situation, and I entirely agree with the noble Baroness that we are wholly in favour of charities being able to avail themselves of the new provisions, but allowing political parties to do so is a bridge too far and, on that basis, I very much support the amendment.

Data Protection and Digital Information Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Wednesday 17th April 2024 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, it has been a pleasure to listen to noble Lords’ speeches in this debate. We are all very much on the same page and have very much the same considerations in mind. Both the protection of biometric data itself and also the means by which we regulate its use and have oversight over how it is used have been mentioned by everyone. We may have slightly different paths to making sure we have that protection and oversight, but we all have the same intentions.

The noble Lord, Lord Holmes, pointed to the considerable attractions of, in a sense, starting afresh, but I have chosen a rather different path. I think it was the noble Lord, Lord Vaux, who mentioned Fraser Sampson, the former Biometrics and Surveillance Camera Commissioner. I must admit that I have very high regard for the work he did, and also for the work of such people as Professor Peter Fussey of Essex University. Of course, a number of noble Lords have mentioned the work of CRISP in all this, which kept us very well briefed on the consequence of these clauses.

No one has yet spoken to the stand part notices on Clauses 130 to 132; I will come on to those on Clauses 147 to 149 shortly. The Bill would drastically change the way UK law enforcement agencies can handle biometric personal data. Clauses 130 to 132 would allow for data received from overseas law enforcement agencies to be stored in a pseudonymised, traceable format indefinitely.

For instance, Clause 130 would allow UK law enforcement agencies to hold biometric data received from overseas law enforcement agencies in a pseudonymised format. In cases where the authority ceases to hold the material pseudonymously and the individual has no previous convictions or only one exempt conviction, the data may be retained in a non-pseudonymous format for up to three years. Therefore, the general rule is indefinite retention with continuous pseudonymisation, except for a specific circumstance where non-pseudonymised retention is permitted for a fixed period. I forgive noble Lords if they have to read Hansard to make total sense of that.

This is a major change in the way personal data can be handled. Permitting storage of pseudonymised or non-pseudonymised data will facilitate a vast biometric database that can be traced back to individuals. Although this does not apply to data linked to offences committed in the UK, it sets a concerning precedent for reshaping how law enforcement agencies hold data in a traceable and identifiable way. It seems that there is nothing to stop a law enforcement agency pseudonymising data just to reattach the identifying information, which they would be permitted to hold for three years.

The clauses do not explicitly define the steps that must be taken to achieve pseudonymisation. This leaves a broad scope for interpretation and variation in practice. The only requirement is that the data be pseudonymised

“as soon as reasonably practicable”,

which is a totally subjective threshold. The collective impact of these clauses, which were a late addition to the Bill on Report in the Commons, is deeply concerning. We believe that these powers should be withdrawn to prevent a dangerous precedent being set for police retention of vast amounts of traceable biometric data.

The stand part notices on Clauses 147 to 149 have been spoken to extremely cogently by the noble Lord, Lord Vaux, the noble Viscount, Lord Stansgate, and the noble Baroness, Lady Harding. I will not repeat a great deal of what they said but what the noble Baroness, Lady Harding, said about the Human Fertilisation and Embryology Authority really struck a chord with me. When we had our Select Committee on Artificial Intelligence, we looked at models for regulation and how to gain public trust for new technologies and concepts. The report that Baroness Warnock did into fertilisation and embryology was an absolute classic and an example of how to gain public trust. As the noble Baroness, Lady Harding, said, it has stood the test of time. As far as I am concerned, gaining that kind of trust is the goal for all of us.

What we are doing here risks precisely the reverse by abolishing the office of the Biometrics and Surveillance Camera Commissioner. This was set up under the Protection of Freedoms Act 2012, which required a surveillance camera commissioner to be appointed and a surveillance camera code of practice to be published. Other functions of the Biometrics and Surveillance Camera Commissioner are in essence both judicial and non-judicial. They include developing and encouraging compliance with the surveillance camera code of practice; raising standards for surveillance camera developers, suppliers and users; public engagement; building legitimacy; reporting annually to Parliament via the Home Secretary; convening expertise to support these functions; and reviewing all national security determinations and other powers by which the police can retain biometric data. The Bill proposes to erase all but one—I stress that—of these activities.

The noble Lord, Lord Vaux, quoted CRISP. I will not repeat the quotes he gave but its report, which the noble Viscount, Lord Stansgate, also cited, warns that

“plans to abolish and not replace existing safeguards in this crucial area will leave the UK without proper oversight just when advances in artificial intelligence (AI) and other technologies mean they are needed more than ever”.

The Bill’s reduction of surveillance-related considerations to data protection compares unfavourably to regulatory approaches in other jurisdictions. Many have started from data protection and extended it to cover the wider rights-based implications of surveillance. Here, the Bill proposes a move in precisely the opposite direction. I am afraid this is yet another example of the Bill going entirely in the wrong direction.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have contributed to what has been an excellent debate on this issue. We have all been united in raising our concerns about whether the offices of the biometrics commissioner and the surveillance camera commissioner should be abolished. We all feel the need for more independent oversight, not less, as is being proposed here.

As we know, the original plan was for the work of the biometrics commissioner to be transferred to the Information Commissioner, but when he raised concerns that this would result in the work receiving less attention, it was decided to transfer it to the Investigatory Powers Commissioner instead. Meanwhile, the office of the surveillance camera commissioner is abolished on the basis that these responsibilities are already covered elsewhere. However, like other noble Lords, we remain concerned that the transfer of this increasingly important work from both commissioners will mean that it does not retain the same level of expertise and resources as it enjoys under the current regime.

These changes have caused some alarm among civic society groups such as the Ada Lovelace Institute and the Centre for Research into Information Surveillance and Privacy, to which noble Lords have referred. They argue that we are experiencing a huge expansion in the reach of surveillance and biometric technology. The data being captured, whether faces, fingerprints, walking style, voice or the shape of the human body, are uniquely personal and part of our individual identity. The data being captured can enhance public safety but can also raise critical ethical concerns around privacy, free expression, bias and discrimination. As the noble Lord, Lord Vaux, said, we need a careful balance of those issues between protection and privacy.

The noble Baroness, Lady Harding, quite rightly said that there is increasing public mistrust in the use of these techniques, and that is why there is an urgent need to take people on the journey. The example the noble Baroness gave was vivid. We need a robust legal framework to underpin the use of these techniques, whether it is by the police, the wider public sector or private institutions. As it stands, the changes in the Bill do not achieve that reassurance, and we have a lot of lessons to learn.

Rather than strengthening the current powers to respond to the huge growth and reach of surveillance techniques, the Bill essentially waters down the protections. Transferring the powers from the BSCC to the new Information Commissioner brings the issue down to data protection when the issues of intrusion and the misuse of biometrics and surveillance are much wider than that. Meanwhile, the impact of Al will herald a growth of new techniques such as facial emotional appraisal and video manipulation, leading to such things as deep fakes. All these techniques threaten to undermine our sense of self and our control of our own personal privacy.

The amendment in the name of the noble Lord, Lord Holmes, takes up the suggestion, also made by the Ada Lovelace Institute, to establish a biometrics office within the ICO, overseen by three experienced commissioners. The functions would provide general oversight of biometric techniques, keep a register of biometric users and set up a process for considering complaints. Importantly, it would require all entities processing biometric data to register with the ICO prior to any use.

We believe that these amendments are a really helpful contribution to the discussion. They would place the oversight of biometric techniques in a more effective setting where the full impacts of these techniques can be properly monitored, measured and reported on. We would need more details of the types of work to be undertaken by these commissioners, and the cost implications but, in principle, we support these amendments because they seem to be an answer to our concerns. We thank the noble Lord for tabling them and very much hope the Minister will give the proposals serious consideration.

Data Protection and Digital Information Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Monday 15th April 2024 Grand Committee

[Viscount Camrose (Con)]

I am not sure I accept that it is “quite something”, in the noble Lord’s words. As and when the appropriate solution emerges, we will bring it forward—no doubt between Committee and Report.

On Amendment 115, we share the noble Lords’ feelings on the importance of redress for data subjects. That is why the Secretary of State must already consider the arrangements for redress for data subjects when making a data bridge. There is already an obligation for the Secretary of State to consult the ICO on these regulations. Similarly, when considering whether the data protection test is met before making a transfer subject to appropriate safeguards using Article 46, the Government expect that data exporters will also give consideration to relevant enforceable data subject rights and effective legal remedies for data subjects.

Our rules mean that companies that transfer UK personal data must uphold the high data protection standards we expect in this country. Otherwise, they face action from the ICO, which has powers to conduct investigations, issue fines and compel companies to take corrective action if they fail to comply. We will continue to monitor and mitigate a wide range of data security risks, regardless of provenance. If there is evidence of threats to our data, we will not hesitate to take the necessary action to protect our national security.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we heard from the two noble Lords some concrete examples of where those data breaches are already occurring, and it does not appear to me that appropriate action has been taken. There seems to be a mismatch between what the Minister is saying about the processes and the day-to-day reality of what is happening now. That is our concern, and it is not clear how the Government are going to address it.

[Lord Clement-Jones (LD)]

My Lords, in a way the Minister is acknowledging that there is a watering down taking place, yet the Government seem fairly relaxed about seeing these issues. If something happens, the Government will do something or other, or the commissioner will. But the Government are proposing to water down Article 45, and that is the essence of what we are all talking about here. We are not satisfied with the current position, and watering down Article 45 will make it even worse; there will be more Yandexes.

Data Protection and Digital Information Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Wednesday 27th March 2024 Grand Committee

[Lord Clement-Jones (LD)]

Yes. We will not stand on ceremony.

[Baroness Jones of Whitchurch (Lab)]

As long as that applies to us on occasion as well.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, given the hour, I will be brief. That was an absolute tour de force by the noble Baroness. As with all the Minister’s speeches, I will read her speech over Easter.

I was very interested to be reminded of the history of Napster, because that was when many of us realised that we were, in many ways, entering the digital age in the creative industries and beyond. The amendments that the noble Baroness put forward are examples of where the Bill could make a positive impact, unlike the impact that so much of the rest of it is making in watering down rights. She described cogently how large language models are ingesting or scraping data from the internet, social media and journalism, how very close to the ingestion of copyright material this whole agenda is and how it is being done by anonymous bots in particular. It fits very well with the debate in which the Minister was involved last Friday on the Private Member’s Bill of the noble Lord, Lord Holmes, who inserted a clause requiring transparency on the ingestion or scraping of data and copyright material by large language models. It is very interesting.

The opportunity in the data area is currently much greater than it is in the intellectual property area. At least we have the ICO, which is a regulator, unlike the IPO, which is not really a regulator with teeth. I am very interested in the fact that the ICO is conducting a consultation on generative AI and data protection, which it launched in January. Conterminously with this Bill, perhaps the ICO might come to some conclusions that we can use. That would of course include the whole area of biometrics, which, in the light of things such as deepfakes and so on, is increasingly an issue of great concern. The watchword is “transparency”: we must impose a duty on the generative AI models about the use of the material that they use to train their models and then use in operation. I fully support Amendments 103 and 104 in the name of the noble Baroness, even though, as she describes them, they are a small step.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I, too, will be relatively brief. I thank the noble Baroness, Lady Kidron, for her amendments, to which I was very pleased to add my name. She raised an important point about the practice of web scrapers, who take data from a variety of sources to construct large language models without the knowledge or permission of web owners and data subjects. This is a huge issue that should have been a much more central focus of the Bill. Like the noble Baroness, I am sorry that the Government did not see fit to use the Bill to bring in some controls on this increasingly prevalent practice, because that would have been a more constructive use of our time than debating the many unnecessary changes that we have been debating so far.

As the noble Baroness said, large language models are built on capturing text, data and images from infinite sources without the permission of the original creator of the material. As she also said, it is making a mockery of our existing data rights. It raises issues around copyright and intellectual property, and around personal information that is provided for one purpose and commandeered by web scrapers for another. That process often happens in the shadows, whereby the owner of the information finds out only much later that their content has been repurposed.

What is worse is that the application of AI means that material provided in good faith can be distorted or corrupted by the bots scraping the internet. The current generation of LLMs are notorious for hallucinations in which good quality research or journalistic copy is misrepresented or misquoted in its new incarnation. There are also numerous examples of bias creeping into the LLM output, which includes personal data. As the noble Baroness rightly said, the casual scraping of children’s images and data is undermining the very essence of our existing data protection legislation.

It is welcome that the Information Commissioner has intervened on this. He argued that LLMs should be compliant with the Data Protection Act and should evidence how they are complying with their legal obligations. This includes individuals being able to exercise their information rights. Currently, we are a long way from that being a reality and a practice. This is about enforcement as much as giving guidance.

I am pleased that the noble Baroness tabled these amendments. They raise important issues about individuals giving prior permission for their data to be used unless there is an easily accessible opt-out mechanism. I would like to know what the Minister thinks about all this. Does he think that the current legislation is sufficient to regulate the rise of LLMs? If it is not, what are the Government doing to address the increasingly widespread concerns about the legitimacy of web scraping? Have the Government considered using the Bill to introduce additional powers to protect against the misuse of personal and creative output?

In the meantime, does the Minister accept the amendments in the name of the noble Baroness, Lady Kidron? As we have said, they are only a small part of a much bigger problem, but they are a helpful initiative to build in some basic protections in the use of personal data. This is a real challenge to the Government to step up to the mark and be seen to address these important issues. I hope the Minister will say that he is happy to work with the noble Baroness and others to take these issues forward. We would be doing a good service to data citizens around the country if we did so.

Digital Markets, Competition and Consumers Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

3rd reading
Tuesday 26th March 2024 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I am delighted that the Minister has come back at Third Reading as he undertook to and that he has produced this amendment. I am only sorry that the noble Lord, Lord Lucas, is not present to be able to take the credit for it.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we welcome the Government’s amendment on subscription reminder notices. As has been said, the noble Lord, Lord Lucas, made a very sensible intervention when we debated this in Committee and on Report, and it provides a helpful clarification to service providers. I hope that this amendment and the other changes that we made on Report have now struck a much better balance between businesses’ needs and consumer interests.

We look forward to hearing details of the department’s further work on implementing the gift aid protections and other work on cancellation methods, but, for now, we are pleased with the progress that has been made on the Bill and we wish it a speedy onward passage.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Stowell. I agree with a huge amount of what she said.

I reiterate the welcome that we on these Benches gave to the Bill at Second Reading. We believe it is vital to tackle the dominance of big tech and to enhance the powers of our competition regulators to tackle it, in particular through the new flexible pro-competition powers and the ability to act ex ante and on an interim basis.

We were of the view, and still are, that the Bill needs strengthening in a number of respects. We have been particularly concerned about the countervailing benefits exemption under Clause 29. This must not be used by big tech as a major loophole to avoid regulatory action. A number of other aspects were inserted into the Bill on Report in the Commons about appeals standards and proportionality. During the passage of the Bill, we added a fourth amendment to ensure that the Secretary of State’s power to approve CMA guidance will not unduly delay the regime coming into effect.

As the noble Baroness, Lady Stowell, said, we are already seeing big tech take an aggressive approach to the EU Digital Markets Act. We therefore believe the Bill needs to be more robust in this respect. In this light, it is essential to retain the four key amendments passed on Report and that they are not reversed through ping-pong when the Bill returns to the Commons.

I thank both Ministers and the Bill team. They have shown great flexibility in a number of other areas, such as online trading standards powers, fake reviews, drip pricing, litigation, funding, cooling-off periods, subscriptions and, above all, press ownership, as we have seen today. They have been assiduous in their correspondence throughout the passage of the Bill, and I thank them very much for that, but in the crucial area of digital markets we have seen no signs of movement. This is regrettable and gives the impression that the Government are unwilling to move because of pressure from big tech. If the Government want to dispel that impression, they should agree with these amendments, which passed with such strong cross-party support on Report.

In closing, I thank a number of outside organisations that have been so helpful during the passage of the Bill—in particular, the Coalition for App Fairness, the Public Interest News Foundation, Which?, Preiskel & Co, Foxglove, the Open Markets Institute and the News Media Association. I also thank Sarah Pughe and Mohamed-Ali Souidi in our own Whips’ Office. Last, but certainly not least, I thank my noble friend Lord Fox for his support and—how shall I put it?—his interoperability.

Given the coalition of interest that has been steadily building across the House during the debates on the Online Safety Bill and now this Bill, I thank all noble Lords on other Benches who have made common cause and, consequently, had such a positive impact on the passage of this Bill. As with the Online Safety Act, this has been a real collaborative effort in a very complex area.

[Baroness Jones of Whitchurch (Lab)]

My Lords, before the Bill passes, I put on record my thanks to the Ministers—the noble Viscount, Lord Camrose, and the noble Lord, Lord Offord—as well as the noble Lord, Lord Parkinson, who made a guest appearance. I also put on record my huge appreciation for the Bill team for their timely letters and briefings, and their immense good humour when we asked for even more information.

The whole experience has been a good illustration that, when we fully engage in discussion on a Bill, we can deliver genuine improvements that have broad support. I hope that our colleagues in the Commons appreciate the careful thought and hard work that is behind these changes. I hope that we do not have to be here again on this Bill, but I reiterate that our door is always open if further discussions would help. For now, I hope that the Bill will soon be on the statute book and I look forward to its progress.

Data Protection and Digital Information Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Monday 25th March 2024 Grand Committee

[Lord Clement-Jones (LD)]

It would be very useful to have the Minister respond on that but, of course, as far as the impact assessment is concerned, a lot of this depends on the Government’s own estimates of what this Bill will produce—some of which are somewhat optimistic.

[Baroness Jones of Whitchurch (Lab)]

My Lords, can we join in with the request to see that information in a letter? We would like to see where these savings will be made and how much will, as noble Lords have said, be affected by the clauses that we are debating today.

[Lord Clement-Jones (LD)]

The noble Baroness, Lady Jones, has given me an idea: if an impact assessment has been made, clause by clause, it would be extremely interesting to know just where the Government believe the golden goose is.

Digital Markets, Competition and Consumers Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Report stage
Monday 11th March 2024 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow that piece of logic. I do not need to speak for very long in support of the many important amendments that have been spoken to in this group. The Minister, in Committee and in his welcome letters and meetings, has attempted to rebut the need for them—but I am afraid that, in all cases, their proponents have been rather more persuasive in wishing to see the CMA unambiguously able to exercise its powers.

In a different context, the Communications and Digital Committee, chaired by the noble Baroness, Lady Stowell of Beeston, in its report on large language models, said that there was a considerable “risk of regulatory capture”. Mindful of that, we need to make sure that the CMA has those powers.

I turn to the amendment proposed by the noble Lord, Lord Faulks, and his argument about the dangers of introducing proportionality, also spoken to by the noble Lord, Lord Wolfson. On these Benches, we fully support having that provision in the Bill, as in the noble Lord’s Amendment 13. Human rights for big tech is not really a slogan that I am prepared to campaign on.

The noble Baroness, Lady Jones, will no doubt introduce her Amendments 43, 46, 51 and 52 on appeal mechanisms for penalties, which differ from all the other decisions of the CMA. We very much support her in those amendments, and we have signed them. I also support the noble Baroness’s Amendment 59. The Minister took the trouble to write, explaining why the Government did not consider including a duty to citizens, but sometimes such clarification, as in this case, makes us only more enthusiastic for change. I am afraid that citing overlap and the creation and operation of the DRCF is not enough; nor is citing the risk of regulatory overreach, given its inclusion 20 years ago in the Communications Act. We agree with the conclusions of the original task force.

We also support the noble Lord, Lord Lansley, on the importance of placing time limits on the Secretary of State in approving the CMA guidance under the digital markets provisions of the Bill, in Amendment 56. Although I believe that the noble Baroness, Lady Stowell of Beeston, will not be pressing it to a vote, we very much support her in her relentless campaign for improved parliamentary scrutiny. This has been identified by so many parliamentary committees, not least by the Industry and Regulators Committee on which I sit. It seems extraordinary that we are still waiting to implement the kind of solution that she is putting forward, and I hope very much that the House will take forward her suggestion.

We also very much support in principle the amendment proposed by the noble and learned Lord, Lord Etherton, on collective proceedings. He may not press the amendment to a Division today, but this is a vital change that we should make to ensure that rights in this area can be properly exercised and enforced. If the noble Lord, Lord Faulks, seeks the opinion of the House on his Amendment 13, the noble Baroness, Lady Jones, on her Amendment 43, and the noble Lord, Lord Lansley, on his Amendment 56, we will support them.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have contributed this afternoon to what is a very important group of amendments. I add my thanks to the Ministers and officials for their time in the run-up to this debate in trying to resolve the many issues that we have tabled today.

I thank the Minister for tabling Amendment 1 and for listening to our concerns about the Secretary of State’s power to amend the conditions that would determine whether a tech company has a position of strategic significance. I am glad that the Minister has listened to our concerns, and we are happy to say that we accept the new proposals.

Our Amendments 43, 44, 46, 51, and 52 would reinstate judicial review principles as the means by which penalty decisions are heard, rather than being determined on the merits. I thank all noble Lords who have spoken this afternoon, and indeed those who have added their names to these amendments, for their support. As we debated in Committee and again today, these amendments are among the several we are debating in which the original balance between big tech companies and challenger firms was distorted by late government amendments on Report in the Commons. The Minister has already admitted that the changes came about as a result of lobbying by the big tech companies to No. 10. They clearly would not have done this unless they were expecting to benefit from those changes.

The debate around the appeals mechanism goes to the heart of those concerns. We know that penalties such as fines are the most significant deterrent in preventing SMS companies breaking the conduct requirements established by the CMA. There is a real concern that a merits appeals process would allow the SMS firms to deliberately delay implementation of the fines and open up the judgment of the CMA right back to square one. This is why the CMA has itself argued that it prefers the judicial review process, which is widely used elsewhere and avoids protracted litigation. We agree with the CMA and believe that appeals through judicial review will deliver swifter and more effective outcomes. We want to close down the opportunities for unnecessary litigation from huge corporate lawyers with time on their side and deep pockets to fund their activities.

As the noble Lord, Lord Black, and the noble Baroness, Lady Kidron, have said, the worrying news from Europe as to the responses so far from Apple and the other tech companies to their fines for anti-competitive behaviour underlines why it is so important to have robust and legally watertight regulation in place in the UK.

I do not think that the Minister, in Committee or in subsequent discussions, has been able to persuade us that a merits review process will not open the door to lengthy litigation designed to frustrate the whole process. If we remain unpersuaded by his arguments this afternoon, I give notice that I will wish to test the opinion of the House on Amendment 43.

These concerns also apply to Amendments 13 and 35 in the name of the noble Lord, Lord Faulks. In this case, replacing the word “appropriate” with “proportionate” has particular legal implications, which the noble Lord, Lord Faulks, has described extremely eloquently. We know that the CMA already has a duty to act proportionality, so repeating it in the Bill takes on a new legal emphasis that might lead a court to widen the scope of a judicial review challenge. In our view, “appropriate” has a much more common-sense meaning of rationality, whereas “proportionate” is a matter of judgment and is more easily disputed.

The Minister has argued that there is a need for extra clarity to reassure the tech companies on the intent of the clause. The amendment from the noble Lord, Lord Faulks, would require the CMA to act proportionately, as its current duty requires, and also appropriately. This is a win-win, which should provide the clarity that tech companies are seeking. I look forward to hearing the Minister’s further clarification on these issues, but, unless there is any new, compelling justification for the changes, we would support the noble Lord, Lord Faulks, if he chooses to test the opinion of the House.

Throughout our deliberations, the noble Baroness, Lady Stowell, has raised important questions about the need to strengthen parliamentary oversight of the CMA’s activities. Her Amendments 55 and 57 provide an excellent route to addressing these concerns. Like other noble Lords, I am sorry that they have not yet found favour with the Government and I very much hope that she will continue to pursue them.

Meanwhile, Amendment 49 from the noble and learned Lord, Lord Etherton, raises the right of consumers to bring collective proceedings where they have suffered the same harm or loss from a breach of conduct requirements. As he has argued, this is a vital lifeline for individuals or small businesses that cannot afford to finance legal proceedings alone. His amendment would create a means of effective enforcement of existing rights once a breach has occurred. We agree that we ought to find a mechanism to allow these class actions to occur in specific circumstances.

However, we also agree with the amendment of the noble Baroness, Lady Harding, that the courts need to avoid proceedings which conflict with or overlap the CMA’s ongoing investigations. We hope the Minister can provide some reassurance that the Government recognise the importance of these issues and will carry out a review. I hope this will provide sufficient reassurance to the noble Lord, Lord Etherton, that a vote on his amendment is not necessary.

Digital Markets, Competition and Consumers Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Wednesday 7th February 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have spoken. This truly is a miscellaneous group of amendments and I will add to the miscellany of all this, because my Amendment 215A addresses the ambiguity that arises from the current laws on marketing infant formula.

Perhaps I may briefly explain the background as to why this is before us today. The Infant Formula and Follow-on Formula (England) Regulations 2007 were designed to prevent supermarkets promoting infant formula over breastfeeding. They arose because, prior to that, aggressive marketing and advertising techniques had been used by the milk formula industry to mislead parents over the best way in which to feed their babies. The current rules state that infant formula should not be advertised or promoted in a shop. They also say that no coupons, special sales offers, discounts or gifts should be offered to mothers or their families.

Meanwhile, noble Lords will be aware that the cost of infant formula has risen recently and is a huge extra burden on families, who are particularly suffering in the cost of living crisis. It is estimated that the cost increased by 22% in the past year alone. But because of the current regulations, supermarkets still cannot accept vouchers, even those provided by food banks and local authorities to purchase that infant formula. There have therefore been calls for the marketing rules to be reviewed to allow, for example, retailers to accept loyalty points, grocery vouchers and store gift cards, as well as free vouchers, for infant formula.

Our amendment addresses the current ambiguity in the regulations and calls for a review to clarify the marketing rules and their impact on the pricing and affordability of infant formula. This Bill is seen as the best mechanism to get this review under way. I should stress that our aims are to clarify the law and to tackle the unfair pricing currently taking place. However, we want to ensure that parents remain protected from the aggressive advertising that has misled them in the past. I hope that noble Lords and the Minister will see the sense of this amendment.

On a completely different issue, I listened carefully to the noble Lord, Lord Lucas, about double- glazing. I agree that he made an important point. I did not know that there were still double-glazing salesmen, but he raised them so I am sure there must be. I agree with him that, if they still exist, they should be regulated.

I turn to a completely different issue again. I am grateful to the noble Lords, Lord Holmes and Lord Clement-Jones, for their amendments on AI. We look forward to debating the Private Member’s Bill of the noble Lord, Lord Holmes, on AI regulation in the coming weeks. These Benches take this issue hugely seriously. We recognise that AI has the potential to deliver life-changing benefits for working people, from early cancer diagnosis to relieving traffic congestion, but these benefits must be set firmly in new standards and new regulation to keep people safe and their data protected. The EU and the US are speeding ahead on this while the UK is dragging its heels, so we believe that new regulations on the control of AI are essential.

I listened carefully to the noble Lords. I do not disagree with what they are trying to achieve but I query whether this is the right place to pursue these amendments. The data protection Bill will come before the House shortly; that will give us a much greater opportunity to address the impact of AI on the lives of consumers and citizens. I hope that we will have a really detailed exploration of the protections needed in that Bill at that time. However, having listened to the noble Lord, Lord Clement-Jones, on music labelling just now, I realise that I cannot just pass this issue on to the data protection Bill in the way I wanted to, because he made an important point about the consumer issues arising. Again, I have some sympathy with the noble Lord, Lord Lucas, who challenged this and asked, “How can we know? What percentage of music is AI?”

[Lord Clement-Jones (LD)]

I entirely agree that it is a question to be asked. Of course, there is the general principle of transparency. If you look at the amendment, you will see that it talks about content “whether assisted or generated” by AI. It could be partly or wholly generated by AI but, in transparency terms, just the knowledge that at least some of the elements were created by AI is important. The consumer can then take it or leave it, basically. If they like the sound of AI music—believe me, some of it is pretty dreadful—that is fine, but it is an acquired taste.

[Lord Clement-Jones (LD)]

It all depends on how sober the audience is, I suspect.

[Baroness Jones of Whitchurch (Lab)]

Gosh—I cannot help feeling that this is the beginning of a much longer conversation. We may not want to have that conversation now, but this is an important issue; I absolutely understand why the noble Lord, Lord Clement-Jones, is raising it. We need to find a way to ensure that consumers are properly informed.

On standard-essential patents, I am grateful to the noble Lord, Lord Clement-Jones, for explaining the background to his amendment. Again, this is an issue with which I was not familiar, but the noble Lord spoke persuasively. I hope that the Minister will agree to follow up on the Intellectual Property Office’s review and provide some reassurance that the issue is in hand.

The Minister will be pleased to hear that we support his Amendment 195. With that, I look forward to hearing his response to the various issues that we raised in this group.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, it gives me great pleasure to speak to this group, partly because, for many years, I was on the board of a very good ombudsman scheme. I suppose I should own up to it being very ably chaired, at the time, by the noble Lord, Lord Clement-Jones. But that was some time ago, so I should not have to declare it as a current conflict of interest.

As a result, I have seen how the best models of ADR can work and provide quick, free, independent consumer redress without having to go anywhere near a court, which was exactly the point made by the noble and learned Lord, Lord Etherton. But, sadly, not all ADR schemes are so responsive, which is why we have tabled Amendments 208A, 209A and 209B, and why I was pleased to add my name to Amendment 209, in the name of the noble and learned Lord, Lord Etherton. He provided a very good introduction and analysis of why a review of ADR provision in the UK needs urgently to be carried out. As he rightly pointed out, this is business-friendly; it actually reduces the cost for consumers and businesses, in many ways, so what is not to like about it?

First, I should say that we welcome the measures in the Bill as far as they go. We need an improved verification system for ADR schemes. I hope that this measure will help root out misleading company schemes that masquerade as ombudsmen but, in truth, are a different branch of the same business; they lack independence and have no real incentive either to resolve consumers’ complaints or to provide appropriate redress. They have been giving ombudsman schemes a bad name. We hope that a review will tackle the more fundamental faults in the current landscape. In some sectors, there are multiple ombudsman schemes; in others, the majority of traders refuse to participate in such schemes.

Even knowledgeable consumers find it difficult to navigate the variety of schemes on offer. The information and signposting are often notoriously poor. Why would a trader notify a consumer that they have the right to go to an ombudsman when that trader may incur the cost or inconvenience of a judgment that goes against them? The bad actors—there are many of them—do not have any incentive to provide this important information. Yet the best ombudsman schemes help to improve overall service standards and breed customer loyalty for the longer term by dealing with complaints efficiently and, as I say, free of cost.

Our Amendment 209B is a case in point. The aviation sector has been plagued by stories of poor service and a lack of refunds. There is no compulsion for airlines to be part of an ombudsman scheme. The aviation ADR scheme, which exists, is not recognised by the Ombudsman Association because it did not meet its criteria for independence, fairness and transparency. It provides consumer redress for easyJet and Ryanair, among others. It once took me about 18 months of doggedness and perseverance to get a refund for a cancelled flight from Ryanair; this is not how ombudsman schemes are meant to work.

Our amendment calls for a detailed, time-limited review of ADR in the aviation sector, consulting consumers and passenger organisations in the sector as well as looking at what further regulatory measures are necessary to bring the aviation sector in line with the standards expected in the best ombudsman schemes elsewhere. I hope that noble Lords and the Minister will feel able to support our amendment, which will help bring well-overdue reform to consumer rights in this sector.

Our Amendment 208A addresses another concern around ADR schemes: how do consumers find out about them in the first place? It is crucial that details of an ADR provider are prominently displayed to consumers who have a complaint. It is not clear why the requirement to display a name and website has been taken out of the regulations; I look forward to the Minister’s explanation for this.

Our Amendment 209A addresses the issue of traders refusing to pay money awards made against them by an ADR provider. It is hugely frustrating for consumers who fight and win a case then to find that they have limited powers to enforce the compensation. This amendment would give them greater powers to have a payment enforced by a court, as would have been the case had the judgment been made in a court in the first place. Again, I hope that noble Lords see the sense of this amendment.

All these amendments complement the proposal of the noble and learned Lord, Lord Etherton, that there should be a review. I hope the Minister confirms that the Government are prepared to carry out this long-overdue ADR review; I therefore look forward to his response.

[Lord Clement-Jones (LD)]

My Lords, I rise to speak briefly in support of all the amendments in this group. I say “briefly” because I have a strong interest to declare as chair of the board of the Trust Alliance Group, which runs the energy and telecoms ombudsman schemes. The noble Baroness, Lady Jones, is entirely right: she was a valued and knowledgeable member of the board of what was then called Ombudsman Services. In everything she says, she speaks with a great deal of experience of the delivery of ombudsman services.

I will be extremely brief because it would not be right for me to extol the virtues of ombudsman services overly. In many ways, they speak for themselves in terms of the alternative dispute resolution process described by the noble and learned Lord, Lord Etherton. However, they are an extremely effective way for consumers to resolve complaints that they have been unable to address directly with the businesses involved.

In this context, I commend a very good House of Commons Library briefing, Consumer Disputes: Alternative Dispute Resolution (ADR), of May 2022. It describes the pros of ADR, but it also fairly describes the cons and what the dispute resolver is able to do. I regret that the ADR directive, which came into force in 2014 or 2015, was not more comprehensively adopted; otherwise, we would not be in this position. The noble and learned Lord, Lord Etherton, is entirely right: it needs extension across a much greater variety of sectors.

Digital Markets, Competition and Consumers Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Monday 5th February 2024 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, I will speak to Amendments 150 and 151 and Amendments 153 to 167. This is a rather voluminous set of amendments, but they are all designed to try to bring the pre-contract information requirement for subscription contracts back to some of the language of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The theme for these provisions is: if it ain’t broke, why fix it?

These amendments seek to maintain the flexibility for traders currently provided by those regulations by taking account of the limited time and space available for providing pre-contract information for certain formats and connected devices, and by recognising that certain key pre-contract information may be apparent from the context. The new clauses—Clauses 254 and 255—together with Schedule 21 are designed to replace the pre-contract information requirements for subscription contracts set out in the regulations. The clauses establish two sets of pre-contract information: a long set of full pre-contract information that must be given or made available to consumers before they sign a contract and a shorter set of key pre-contract information that must be given to the consumer all together, separately to any other information. The latter set must be displayed in such a way that it does not require the consumer to take any steps, such as clicking a link, and it must be displayed prior to the consumer entering into the contract.

But the Bill does not provide for the limited time and space allowances established by Regulation 13(4) of the CCR, which are necessary for certain formats and connected devices. In addition, the Bill does not reflect the flexibility provided by the CCR in terms of recognising key pre-contract information that is apparent from the context. This one-size-fits-all approach is not appropriate, given the many different types of subscription contract and consumer journey that the Bill is intended to cover, and given the varying screen sizes that consumers may use to enter into a contract, particularly on mobile devices.

These amendments are designed to amend Clauses 254 and 255 and Schedule 21 to provide more flexibility for the presentation of pre-contract information. They would import a standard of reasonableness to a trader’s assessment of whether information is apparent from the context. They would distinguish between the timing of pre-contract information and full pre-contract information, in line with the current approach of the CCR. They would enable traders to choose the most appropriate techniques to bring the pre-contract information to the attention of the consumer. They would add a new clause to reflect the limited time and space allowances provided by Regulation 13(4) of the CCR—this is necessary for certain screen formats and connected devices. They would enable traders to choose how best to present pre-contract information in a clear and comprehensible manner, on the basis that providing information all at once will not always be the most effective or transparent approach. They would simplify information about cancellation and avoid duplication. They would remove the pro-rated monthly price from the key information about a subscription, as this may confuse consumers, and they would make clear that certain information should be presented only if applicable.

In summary, it is not clear why we are going so much further than the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations, which, in the view of many, have worked quite well. Of course, we will deal with the difference in the cooling-off requirements—also covered by the CCR—when we debate the amendments of the noble Lord, Lord Black, in a few groups’ time. In the meantime, I very much hope that the Government will adopt a rather more flexible approach than they seem to have in the Bill as it stands.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I will speak briefly on this group because I am very aware that we will have a more substantive debate on subscriptions in the coming groups, so forgive me if I am very brief on some of the issues raised.

I am very grateful to the noble Lord, Lord Lucas, for his amendment. We have consistently argued for clarity, and he is right to hold our feet to the fire over the meaning of the consumer bringing the contract to the end. I am grateful for him probing a little more on what that actually means, and I look forward to hearing the Minister’s clarification on this.

I was concerned when I first read the amendments of the noble Lord, Lord Clement-Jones, that they seemed to be an unnecessary watering down of the rights of consumers under the consumer contracts regulations and introduced some ambiguity where there had previously been clarity. He has gone some way to clarifying what he meant by this. It is very unusual for me to be at odds with him. He might know far more about the subject than I did, because I was just going on what I was reading. I would be happy to talk to him more about it.

I of course understand that some mobile devices are too small to display complex pre-contract information. I am sure that we have all been guilty of ticking the box to say that we accept the terms and conditions when we have not actually read them. However, there should be a responsibility on traders to publish the pre-contract details in a simpler form, using better digital design, rather than being given more legal flexibility about how that information is communicated, which rather lets them off the hook. Maybe this is a discussion that we could carry on outside this debate.

Meanwhile, I am grateful to the noble Lord, Lord Mott, for raising the question of microbusinesses and what conditions should apply before the subscription contract regime kicks in. He raised a very interesting question which I have some sympathy with, about very local traders in a locality such as a farmer’s vineyard. I would be interested to hear what the Minister has to say on this, because we need to protect against the unintended consequences of what he is saying. We need to double check that we are not encouraging rogue businesses to re-describe themselves to get through the loophole, but I am sure that he will address that point when he replies.

As noble Lords can see, I am sitting on the fence on most of these amendments, and I am happy to stay there for the time being. I look forward to hearing what the Minister says, which might persuade me either way.

Digital Markets, Competition and Consumers Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee stage
Monday 22nd January 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, we have also added our names to Amendment 7. At the outset, I should say that we are in broad agreement with all the amendments in this group.

Before I explain the detail of our amendment, and without wishing to rerun the Second Reading debate, I would just like to say that we believe that the essence of the Bill is important and necessary. Our concerns, where we have them, are about some of the details in the Bill and we will give them proper challenge and scrutiny. However, it is not in the interests of consumers or businesses for the Bill to be unduly delayed and we hope to get it on the statute book in an improved form and in a timely manner.

Part 1 of necessity gives the CMA considerable new powers. We support the model that is being proposed, with priority being given to identifying the big tech players that have strategic market status. However, it is important that those new powers are carried out with clarity and with transparency and a number of our amendments in this and other groups address this issue. Our Amendment 1 is a simple but important amendment. It would enable the CMA to draw on its analysis and consultations that have taken place before the passing of the Bill.

Those of us who attended the briefings with the CMA last week will have heard the amount of detailed preparation that it has carried out in anticipation of the Bill being passed. We believe that it is important that it can draw on this wealth of knowledge without starting from scratch and having to do it all again. This will strengthen its effectiveness going forward, as it can reflect on the lessons learned and the outcomes of the various consultations that have already been undertaken.

When this issue came up in the Commons, the Minister, Paul Scully, said:

“I strongly support the point that the CMA should not have to repeat work that it has already done. It is for the DMU to decide what is and is not relevant analysis to its investigations, and it should be able to draw on insight from previous analysis or consultations when carrying out an SMS investigation where it is appropriate and lawful to do so. I am happy to confirm that the Bill does not prevent the DMU from doing that”.—[Official Report, Commons, Digital Markets, Competition and Consumers Bill Committee, 20/6/23; col. 116.]


However, this is our concern. The Bill as it currently stands is silent on the issue. It does not make it clear either way and, specifically, it does not make it clear that this retrospection is within the powers of the CMA. We want to put this clarity in the Bill to avoid the potential for any legal challenges about the way the CMA is going about its investigation. Noble Lords will be familiar with this argument, as it will be a running theme during our scrutiny of the Bill. We want the rules to be watertight and we want to close any legal loopholes from those who stand to lose if the CMA rules against them. Therefore, we believe that this amendment is important in shoring up the CMA’s powers to act and I beg to move.

[Lord Clement-Jones (LD)]

My Lords, at the opening of this Committee stage, I want to repeat, rather in the same way as the noble Baroness, Lady, Jones, what I said on Second Reading: we broadly welcome this Bill. In fact, since the Furman report was set up five years ago, we have been rather impatient for competition law in the digital space to be reformed and for the DMU to be created.

At the outset, I also want to thank a number of organisations—largely because I cannot reference them every time I quote them—for their help in preparing for the digital markets aspects of the Bill: the Coalition for App Fairness, the Public Interest News Foundation, Which?, Preiskel & Co, Foxglove, the Open Markets Institute and the News Media Association. They have all inputted helpfully into the consideration of the Bill.

The ability to impose conduct requirements and pro-competition interventions on undertakings designated as having strategic market status is just about the most powerful feature of the Bill. One of the Bill’s main strengths is its flexible approach, whereby once a platform is designated as having SMS, the CMA is able to tailor regulatory measures to its individual business model in the form of conduct requirements and pro-competition interventions, including through remedies not exhaustively defined in the Bill.

However, a forward-looking assessment of strategic market status makes the process vulnerable to being gamed by dominant platforms. The current five-year period does not account for dynamic digital markets that will not have evidence of the position in the market in five years’ time. It enables challengers to rebut the enforcer’s claim that they enjoy substantial and entrenched market power, even where their dominance has yet to be meaningfully threatened. Clause 5 of the Bill needs to be amended so that substantial and entrenched market power is based on past data rather than a forward-looking assessment. There should also be greater rights to consultation of businesses that are not of SMS under the Bill. As the noble Baroness, Lady Jones, said, this will be discussed later, under another group of amendments.

The provisions of Clause 5, as it is currently worded, risk causing problems for the CMA in practice. Part of the problem is the need for evidence to support a decision by the CMA of a market position over the entire five-year period. The five-year period requires current evidence of the position in the market in five years’ time. In dynamic digital markets such as these, no such evidence is likely to exist today. The CMA needs evidence to underpin its administrative findings. Where no such evidence exists, it cannot designate an SMS firm.

The CMA will have evidence that exists up to the date of the decision—evidence of the current entrenched position, market shares, barriers to entry, intellectual property rights and so on. In that respect, we support the noble Baroness, Lady Jones, with her Amendment 1, because it should of course include earlier investigations by the CMA. All that evidence exists today in 2024, but what the position will be in 2028 will need to be found and it has to be credible evidence to support a CMA decision under Clause 5. Particularly in fast-moving technology markets, the prediction of future trends is not a simple matter, so lack of sufficient evidence of the entrenched nature of a player at year 5 or over the entire period would prevent a rational decision-maker from being able to make a decision that the player will have SMS over the five-year period, as demanded by the Bill. Every designation and subsequent requirement or investigation imposed on the designated undertaking risks being subject to challenge on the basis of insufficient evidence.

As the Open Markets Institute says,

“the inevitably speculative nature of a forward-looking assessment makes the process vulnerable to being gamed by dominant platforms. For example, such firms may use the emergence—and even hypothetical emergence—of potential challengers to rebut the enforcer’s claim that they enjoy substantial and entrenched market power, even where their dominance has yet to be meaningfully threatened by those challengers”.

It gives the example of the rise of TikTok, which Meta has used in arguments to push back against anti-trust scrutiny:

“Yet while experiencing rapid growth in terms of user numbers, TikTok has so far failed to seriously challenge the economic dominance of Meta in online advertising (the basis of Meta’s market power), generating less”


than

“a tenth of the latter’s global revenues. Dominant platforms will also use emerging technologies—such as generative AI—to claim that their dominance is transitory, claims that will be difficult for the CMA to rebut given future uncertainty”.


Our Amendments 3, 4, 5 and 6—here I thank the noble Lord, Lord Vaux, for his support for them, and sympathise with him because I gather that his presence here today has been delayed by Storm Isha—suggest that the number of years should be removed and the provision clarified so that the assessment is made based on current evidence and facts. If the market position changes, the CMA has the power to revoke such designation in any event, on application from the SMS business, as provided for by Clause 16.

That is the argument for Amendments 3, 4, 5 and 6 in Clause 5. I look forward to hearing what the noble Viscount, Lord Colville, has to say on Amendment 7, which we very much support as well.

Ivory Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee: 1st sitting (Hansard): House of Lords
Monday 10th September 2018 Lords Chamber

[Baroness Jones of Whitchurch]

My Lords, that is not the issue. The problem is that we simply do not have the resources to go around carbon-dating every single piece of ivory on the market. That is why we have to find some way of restricting it. If not, people will put their own classification on the ivory; sometimes it will be correct and sometimes it will be incorrect. We do not have the wherewithal or the facilities to manage that effectively. That is why the Bill is before us today: it gives us a structure for managing what ivory is coming on to the market and a more authenticated version of whether it is legitimate.

I take issue also with what the noble Lord said about the consultation. Around the Chamber, there are noble Lords who represent a number of the elephant charities whose members care passionately about the issue, but if we were to ask anybody in the street what they thought the priorities were, I think that the vast majority would say that they cared more about the elephants than the issues that he is raising today. That is the reality; the noble Lord has a very niche view of it, but I think that most people care more about seeing elephants and other animals living at peace in the wild.

The issue is not whether people own ivory. The noble Lord put great emphasis on sequestration and confiscation, but that is not what this Bill is about; it is about the buying and selling of ivory. People can own all the lovely pieces that he was talking about; they can pass it down through the family, but it is only when they want to buy or sell it that it becomes an issue. The Bill does not stop people valuing, loving and caring for family heirlooms. It is only the commercial market that is under question.

There are very good reasons for our trying to put in the Bill tightly worded exemptions—we shall talk about those shortly. The restrictions have to be extremely tight and the rarest and most precious items have to be recognised and distinguished. Not all items produced prior to 1918 are beautiful or valuable. There would be that cut-off date, but to allow all ivory unrestricted circulation in an unrestricted market would skew the market and undermine the wider intent of the Bill. The very existence of such markets would encourage fraud in a similar way to that which made the 1947 date unworkable. With a free flow of pre-1918 ivory, I think that everybody would start to reclassify ivory and the whole date would become blurred.

I am summarising—I am sure that Minister will do it better than me. We had a huge debate on this at Second Reading. I did not persuade the noble Lord; he did not persuade me, and I think that we will carry on the debate as the Committee proceeds. At the end of the day, it is about priorities. As far as I am concerned, the priority is the elephants living in the wild. On this issue, the noble Lord has his priorities wrong.

[Lord Clement-Jones (LD)]

My Lords, due to illness in the family, my noble friend Lady Bakewell is not present for this part of Committee, although I believe that she will be along later. In her absence, I want to intervene briefly in support of the remarks of the noble Baroness, Lady Jones.

The noble Lord, Lord Cormack, has started off Committee in fine, eloquent style, but the phrase “coach and horses” springs to mind as a result of what he had to say. The noble Baroness is absolutely right: the kind of amendment that the noble Lord is putting forward would serve only to introduce further ambiguity and uncertainty into a Bill which has been designed to make sure that we do not have the ambiguities and uncertainties of the current legislation. The noble Lord, Lord Berkeley, had it absolutely right: the difficulties in identifying the difference between pre-1947 and pre-1918 ivory are rife. John Betjeman disapproved strongly of fish knives—

Digital Economy Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support these two amendments. As the noble Lord knows, they have been the subject of considerable discussion and debate in the past. We all share the objective of allowing family-friendly filters to remain on internet services and mobile networks in the UK. As the noble Lord set out, the arrangements we currently have in the UK were brought into question by the EU net neutrality rules introduced last year, which appeared to ban individual countries from restricting access in this way. Since then, there have been a number of different interpretations of how the EU rules would affect the UK—perhaps complicated by the fact the Ministers themselves were not able to clarify the situation with their usual adeptness. Indeed, it still appears that the EU open access regulations and our commitment to family friendly filters are in some ways in contradiction.

The Minister will know that many of the internet companies have taken the view that the less said about this issue the better. Their argument is that if attention is not drawn to the contradiction, they can carry on with the previous practice—under the wire, so to speak. Of course, for a lot of reasons this is not a very attractive proposition, and we accept that it would make the status of family-friendly filters more vulnerable as time went on.

So, instead we have the amendments tabled by the Minister today. When I asked at a previous meeting with the Minister whether the amendments had been checked out legally, I was assured that this was the case. We have not seen that legal advice and therefore have to take it on trust that what is before us today is legally watertight and does not contravene EU rules.

To some extent we are taking all of this on trust. While it would be easy to demand more evidence, I accept that it would not help the case of those committed to family-friendly filters—I suspect that the more we probe, the more the robustness of the proposals before us could unravel. We support the intent behind these amendments and it is certainly not our intention to bring them into question in any way. I hope that they achieve the outcome to which we are all committed. I hope therefore that noble Lords will support the amendment.

[Lord Clement-Jones]

My Lords, both my noble friend Lady Benjamin and the noble Baroness, Lady Jones, are far more authoritative on this subject than I could possibly be. I just want to add our support from the Front Bench for these two amendments. The noble Baroness made an important point, which is that we very much hope that the amendments are effective in clarifying the situation. There is no absolute guarantee of that but they have a fair wind because of the nature of the voluntary system of family-friendly filters that they underpin. I very much hope we do not do too much “probing”—I think that is the word that the noble Baroness used—as we are just happy that we can continue with the same system as we had before. I also think my noble friend Lady Benjamin asked an important question regarding where the gaps are in terms of the smaller players.

Digital Economy Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Committee: 2nd sitting (Hansard - continued): House of Lords
Thursday 2nd February 2017 Lords Chamber

[Baroness Jones of Whitchurch]

My Lords, in moving Amendment 57, I shall speak also to Amendments 59, 60, 61 and 64. These amendments address the issue set out by the Minister this morning, but I make no apology for revisiting this and setting out our position so that it is on the record, although I take the point that he may not be able to answer all the points this afternoon.

Nevertheless, I should like us to have that debate. These amendments would remove the reference in Clause 22 to the regulator defining and imposing new controls on what is prohibited material on the internet. Noble Lords will know that there has been increasing concern about the implications of this wording. It is felt that it would give the regulator extended powers of censorship beyond that originally envisaged in the Bill. When our colleagues in the Commons originally raised concerns about press reports that the Bill could be used in practice to extend internet censorship for adults, the Minister, Matt Hancock, was quite clear. He said:

“I have also seen those reports. I think that they misread the Bill. That is neither our intention, nor our understanding of the working of the new clauses”.—[Official Report, Commons, 28/11/16; col. 1284.]


However, others have since put a different interpretation on the scope of the wording, so there has been ongoing concern about what can best be described as mission creep.

The purpose of Part 3 of the Bill is to provide protection for children from accessing online pornography. We all agree with this intention. However, as the wording stands, it potentially sets new limits on consenting adults accessing pornography that is not harmful to themselves or others. This is material that would not receive a film classification certificate, but neither would it be subject to prosecution. It is not helped by the fact that, by all accounts, the Crown Prosecution Service’s guidelines on this issue are out of date. There is a resulting grey area of pornography that by practice, but not by statute, is not prosecuted. We strongly contend that this is not the place to resolve these wider debates on adult consensual pornography. It is an issue for public debate and for consultation at another time.

In more recent days, Matt Hancock has met with various groups of us and has, I understand, accepted that the wording in the Bill is not as it was intended. He has proposed, albeit informally, that instead a definition of prohibited material should be based on that of extreme pornography, as defined in the Criminal Justice and Immigration Act 2008. We agree that this is a helpful proposal that could well resolve the debate.

We regret, therefore, that the Government were not able to produce an amendment along these lines in time for today’s Committee, which is really where some of these important principles should be resolved, before we get into the more formal, technical detail on Report. These amendments flag up our concerns with the current wording to urge the Government to come forward with detailed proposals before Report and, we hope, to build a consensus to go forward on this issue. Child safety is the issue here, not adult consensual pornography. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, briefly, I strongly support what the noble Baroness, Lady Jones, said. That is why these Benches support the amendments. I took quite a look of comfort from what the Minister said early on in today’s proceedings. As the noble Baroness, Lady Jones, said, there are considerable concerns about the width of “prohibited material” and the very existence of that particular set of conditions inserted at a fairly late stage in the Commons.

Of course, we have talked about the site-blocking provisions but the prohibited material aspects really confuse the issue as they deal with access by adults. It was very useful having the meeting with the Minister and his colleague, Matt Hancock, to talk about these issues. Having discussed the matter, we felt that the proposed new definition of prohibited material, limited to the 2008 Act, was acceptable as that is very tightly defined. Again, I entirely agree with the noble Baroness that it was very disappointing that immediately after that meeting the wording as in this amendment was not made available or put down for the Committee. That would have been enormously helpful in settling people’s concerns about the width of the definition of prohibited material, which goes well beyond the harm test used by the BBFC under the Video Recordings Act.

That is really the essence of it—tying it back. I hope the Minister will shortly explain this in greater detail than he did at the beginning of this session to allay our many fears about something fairly extraneous being introduced into the Bill. I stood corrected earlier by the noble Lord, Lord Maxton, about the exact purpose of Part 3, which is to prevent access by children to online pornography. We must be very clear that that is what we are about, rather than trying to censor the internet on a broader basis.

Gambling (Licensing and Advertising) Bill

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Tuesday 4th March 2014 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, Amendment 3 calls for a review of the effects of online gambling adverts shown to children before the 9 pm watershed. Our amendment calls on the Secretary of State to conduct an investigation into whether there are sufficient controls, and report back to Parliament.

Our amendment recognises that the world of gambling adverts has changed dramatically since the 2005 Act, which gave exemptions to adverts for betting on televised sporting events and for bingo. Since then, televised sports coverage has multiplied so that it is now possible to watch sports programmes 24 hours a day, seven days a week. This has coincided with the massive growth in online gambling, so rather than place a bet in a betting shop on the outcome of a race or a match, gambling is now carried out at home. It is instant, compulsive and has become more complex. It is no longer enough to bet on the outcome of a game, you are now encouraged to bet on the first no-ball, the first corner, the first goal scorer and so on. This has been fuelled by the growth of spread betting with high stakes and winnings, but also potentially high losses.

As we have already identified, these days, viewers of televised sporting events are bombarded with betting adverts in the commercial breaks, with all kinds of tempting, and often misleading, offers for correctly predicting the run of play and the outcome. They capitalise on viewers’ excitement and emotion in the moment.

Equally, in 2005, I do not think that anyone predicted the rise of online bingo. In its original form, bingo had a strong social aspect, providing a safe community activity, particularly for women, in predominantly working-class areas. However, online bingo has none of these attributes: it is solitary, repetitive and addictive. It is not surprising to discover that most online bingo adverts are on daytime TV, targeting those who are home alone.

There is a third development which was also not anticipated, which is the rise of gambling adverts throughout the day on social media and music websites, which by their very nature are targeting a younger audience. We know that gambling adverts are profitable and increasingly prolific. For example, between 2005 and 2012, while the total number of TV adverts almost doubled, over the same period the number of gambling adverts increased eightfold to more than 4% of the total adverts shown. It may be that a more general review of the regulation of these adverts is necessary, but our amendment seeks to address one aspect of particular concern, which is the exposure of children to these ads before the 9 pm watershed.

Of course, these adverts are not specifically targeted at children, and there are codes of practice that prevent adverts seeking to exploit young people or appealing to children. However, this is not the point. The fact is that children are being increasingly exposed to remote gambling adverts as they watch TV sport or daytime TV, or listen to music channels. We know that children will often be accessing these programmes without their parents being present, and we know that children are more computer savvy than their parents and can therefore be tempted to find ways to participate in these betting opportunities. We also know from other studies how susceptible children can be to adverts, which is why there are already restrictions on other adverts before 9 pm.

Following Committee, the Minister wrote to us on this issue and I am grateful to him for the letter. He referred us to an Ofcom report published in November last year and went on to say that its research suggests that the current arrangements are working well. I have to say to the Minister that I have looked at the report and it was far from reassuring. Instead, it showed that since 2005 children’s exposure to gambling ads has increased by 272%, whereby in 2012 there were 1.8 billion views of these ads by children. Moreover, in 2012 children were exposed to more than 8% of all the lottery and scratchcard ads on music channels. I could quote more examples but the point is that I do not see anything in that Ofcom report that suggests that these statistics are acceptable.

The truth is that we do not know the extent to which children are influenced by these ads but we know that sports, bingo and social media ads are multiplying and becoming more sophisticated. This is why our amendment calls on the Secretary of State to initiate an investigation into the impact of these adverts on children and report to Parliament on her findings. We were therefore pleased to read at the weekend that the Secretary of State has now accepted the need to look again at the regulation of gambling advertising with the aim of providing better protection for children and the vulnerable. We were also pleased to receive yesterday a letter from the Minister confirming that an independent review will now be carried out, with the aim of implementing any changes in the autumn of this year.

It would therefore be helpful if the noble Lord could confirm today who will be involved in this review and who will make the ultimate recommendations to the Secretary of State. Can he also confirm whether the review will be underpinned by an open consultation? Can he reassure the House that Parliament will have the ultimate say on the proposals? Can he confirm the projected timetable for this review if it is anticipated that the changes will be implemented in the autumn?

It is in all our interests that we understand, while there is still time to act, whether these ads are encouraging a gambling culture among children. I hope that the noble Lord is able to reassure us that the Government are now prepared to take this issue seriously and have a robust and accountable review process in place. I look forward to his response on this matter.

[Lord Clement-Jones (LD)]

My Lords, my motives in speaking to this amendment are entirely about probing further. I appreciated much of what the noble Baroness had to say about the opposition amendment and I am massively impressed by the growing consensus between the two Front Benches as the evening draws on.

However, the nature of the amendment is much narrower in scope than the review that the Secretary of State has promised. I am a little concerned about the sudden switch that has taken place. The noble Baroness referred to the letter of 22 January from my noble friend, as compared to the most recent letter of 3 March. There has been quite a turnaround, and we had the article from the Secretary of State in the Sunday Times last weekend. What concerns me is that this or any inquiry has to be firmly rooted in the evidence. I absolutely share what the noble Baroness had to say about the importance of child protection and the exposure of children to these gambling adverts but I do not want us to engage in some kind of moral panic when it comes to advertising to adults.

Gambling and the activities that take place, whether in casinos or remotely, are legitimate and it is legitimate to advertise them. Unless there a clearly established connection between advertising and problem gambling—from the research so far, it does not appear to be a major factor—I hope that this debate will be devoted largely to looking at the impact on children. There probably are conflicting views on the nature of the Ofcom evidence: the Advertising Association seems to be saying that only 42 seconds of advertising out of nearly 17 hours spent watching television each week is seen by 10 to 15 year-olds. I do not know whether that is the case or whether the figures that the noble Baroness, Lady Jones, cited are correct. If there is an issue here, we should definitely explore it. From his letter, I know that the Minister will clearly respond positively.

However, I am concerned, particularly when the Secretary of State makes a statement referring to a 600% increase in gambling advertising. I am not a mathematician; in fact, I am virtually innumerate but I know that if you use percentages such as that it can sometimes be from a very low base. Let us face it, between 2006 and now, remote gambling of the kind that is advertised so heavily has grown hugely as an industry, and it is hardly surprising that gambling advertising of that nature has increased in that period.

All that I am saying is that I hope that when the Secretary of State commissions this inquiry, questions of the kind being asked by the noble Baroness will be answered. I also hope that those answers will be firmly rooted in evidence and that we do not just rush to condemn gambling advertising per se, when what we are really after is the impact on the under-18s.

Licensing Act 2003 (Descriptions of Entertainment) (Amendment) Order 2013

Debate between Lord Clement-Jones and Baroness Jones of Whitchurch

Monday 3rd June 2013 Grand Committee

[Lord Clement-Jones]

I thank my noble friend the Minister for that introduction to the SI. As he will be aware, I am in general a strong supporter of arts and entertainment deregulation. A little over a year ago we were celebrating the success of a five-year campaign to deregulate the performance of live music in small venues under the Licensing Act, dating back to the recommendations of the Live Music Forum of 2007 with the passing of the Live Music Act. That success was a tribute to a great many individuals, and not least to the strong co-operation between the DCMS itself and Ministers and officials.

UK Music, which with help from the Musicians’ Union and others helped to push through the Live Music Act, believes that the new legislation has the potential to create a major economic impact, with thousands of musicians who can add to the £1.5 billion currently earned by the live music sector. I was delighted that the MU published a live music kit when the Act came into force that is a comprehensive guide to hosting and promoting live music.

The key now is to ensure that there is an accurate way to measure the economic and creative impact of the new Act. Research commissioned by UK Music will help to provide some of these answers. The creative and artistic benefits of the new Act will take time to work through the system, but I hope that in a year or so no one who loves music, and live music in particular, will be able to argue that deregulating the performance of live music has been anything but good for the grass-roots scene, and indeed for the community as a whole. I very much hope, therefore, that the same will be true in other areas of deregulation of entertainment.

While the Live Music Bill was going through, as the Minister has explained the Government themselves published their own deregulation proposals in September 2011. The proposal was to deregulate all regulated entertainment of a similar description to live music, recorded music or dance and entertainment before audiences of over 5,000, except boxing, wrestling and adult entertainment. That meant that between 8 am and 11 pm most performances of a play, exhibitions of a film, indoor sporting events and so on would be exempt from Licensing Act regulation. The aim of the proposals, in the words of the consultation, was to,

“improve the quality of life for all through cultural and sporting activities, support the pursuit of excellence, and champion the tourism, creative and leisure industries”.

Those are all extremely important aims.

In seeking to reduce the overall burden of regulation faced by smaller organisations, the Government also wished to encourage the performance of music, dance and sport and to encourage community creativity and expression—all much to be desired. In most cases, as the Minister said today, the consultation rightly asserted that adequate protections against potential problems were already provided by existing legislation, such as the Environmental Protection Act 1990, the Anti-social Behaviour Act 2003 and the Noise Act 1996. As the Minister also stated, licence conditions would still apply and be used for premises licensed to sell alcohol. The threat and use of review powers under the Licensing Act 2003 will provide sufficient protection to communities.

The consultation sought views on the proposed regulation of capacity under 500, but mentioned that the police preferred a 499 limit. We all recognised that these were, to say the least, very radical deregulatory proposals. If implemented they would have had a significant effect and in some cases unintended consequences. Although I am in favour generally of deregulation, I am glad to say that rather less radical views prevailed. Following the end of the consultation, as my noble friend said, the Government, in January 2013, published their response and proposals. They proposed deregulating these events between 8 am and 11 pm for those hosted by local authorities and educational establishments, and for others, in the case of an audience of up to 500, except for indoor sporting events, where the audience is limited to 1,000, and films, where partial regulation will continue to ensure age classification.

As the Minister described, I am delighted that we now have before us the draft SI, which implements that proposal, which I wholly support. However, clearly the DCMS is still not a boxing, martial arts or wrestling fan—they remain regulated. Greco-Roman wrestling at first was going to be exempt but now seems caught up in continuing regulation. Is that correct? Can the Minister give the Committee some explanatory background to this distinction?

The consultation response in January also said that the audience limit for exemptions under the Live Music Act will be raised to 500, which was great news. I hope my noble friend can tell us when we can expect that change to be introduced and what mechanism will be used to effect the change in the provisions of the Live Music Act. What other consequential changes arising from the policy announcement in January will need to be made and by what mechanism will they be made? I look forward to the Minister’s reply.

[Baroness Jones of Whitchurch]

My Lords, I thank the Minister for his very helpful explanation of the background to this order. I also make it clear from the outset that we very much support the intention set out in the order. The local licensing of community arts, sports and music events has been too complicated for far too long. That is why we were also pleased to support the Private Member’s Bill of the noble Lord, Lord Clement-Jones. I am pleased to be able to commend him in person on his move.

There is no doubt at all that the Live Music Act sent a strong message of encouragement to local artists and musicians who were finding it impossible to find a venue to perform in and that it has gone a great way to alleviate that problem. However, that highlights the fact that this order tackles only a small part of a complicated local licensing arrangement that has made life difficult for performers and community organisations alike.

Obviously, by its very nature, secondary legislation tends to be implemented on a rather piecemeal basis, but it would be helpful to know how this fits into the grander plan to update the licensing laws and the rules governing local live performances, building perhaps on the question asked by the noble Lord, Lord Clement-Jones. Can the Minister shed a little more light on the review of film performances, which are not included in this order but which I understand are still under consideration? In other words, can the Minister clarify what further measures will be presented before this House in due course as part of the bigger review of the licensing arrangements and where the details of that can be found?