Data (Use and Access) Bill [HL]

Lord Holmes of Richmond Excerpts

Committee stage
Wednesday 18th December 2024 Grand Committee

Moved by

[Lord Holmes of Richmond]

156A: After Clause 107, insert the following new Clause—
“Data use: definition of unauthorised access to computer programs or dataIn section 17 of the Computer Misuse Act 1990, at the end of subsection (5) insert—“(c) they do not reasonably believe that the person entitled to control access of the kind in question to the program or data would have consented to that access if they had known about the access and the circumstances of it, including the reasons for seeking it, and(d) they are not empowered by an enactment, by a rule of law, or by order of a court or tribunal to access of the kind in question to the program or data.””

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to take part in today’s Committee proceedings. In doing so, I declare my technology interests as set out in the register, not least as an adviser to Socially Recruited, an AI business. In moving Amendment 156A, I will also speak to Amendment 156B, and I thank the noble Lord, Lord Clement-Jones, for co-signing them.

We live in extraordinarily uncertain times, domestically and internationally. In many ways, it has always been thus. However, things are different and have accelerated, not least in the last two decades, because of the online environment and the digital selves that we find ourselves interacting with in a world that is ever changing moment by moment. These amendments seek to update an important statute that governs critical elements of how cybersecurity professionals in this nation seek to keep us all safe in these extraordinarily difficult times.

The Computer Misuse Act 1990 was introduced to defend telephony exchanges at a time when 0.5% of us were online. If that was the purpose of the Act—the statute when passed—that alone would suggest that it needs an update. Who among us would use our smartphone if we had had it for 34 years? Well, we could not—the iPhone has been around only since 2007. This whole world has changed profoundly in the last 20 years, never mind the last 34. It is not just that the Act needs to be updated because it falls short of how society and technology have changed in those intervening years; it needs, desperately and urgently, to be updated because it is currently putting every citizen in this nation at risk for want of being amended. This is the purpose of Amendments 156A and 156B.

The Computer Misuse Act 1990 is not only out of date but inadvertently criminalising the cybersecurity professionals we charge with the job of keeping us all safe. They oftentimes work, understandably, under the radar, behind not just closed but locked doors, doing such important work. Yet, for want of these amendments, they are doing that work, all too often, with at least one hand tied behind their back.

Let us take just two examples: vulnerability research and threat intelligence assessment and analysis. Both could find that cybersecurity professional falling foul of the provisions of the CMA 1990. Do not take my word for it: look to the 2024 annual report of the National Cyber Security Centre, which rightly and understandably highlights the increasing gap between the threats we face and its ability, and the ability of the cybersecurity professionals community, to meet those threats.

These amendments, in essence, perform one simple but critical task: to afford a legal defence for legitimate cybersecurity activities. That is all, but it would have such a profound impact for those whom we have asked to keep us safe and for the safety they can thus deliver to every citizen in our society.

Where is the Government’s work on updating the Computer Misuse Act 1990 in this respect? Will the Government take this opportunity to accept these amendments? Do they believe that these amendments would provide a materially positive benefit to our cybersecurity professionals and thus to our nation, and, if so, why would they not take this first opportunity to enact these amendments to this data Bill?

It is not time; it is well over time that these amendments become part of our law. If not now, when? If not these amendments, which amendments? If they do not accept these amendments, what will the Government say to all those people who will continue to be put in harm’s way for want of these protective provisions being passed? It is time to pass these amendments and give our cybersecurity professionals the tools they need. It is time, from the legislative perspective, to keep them safe so that they can do the self-same thing for all of us. It is time to cyber up. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I was delighted to see these amendments tabled by the noble Lord, Lord Holmes. He, the noble Lord, Lord Arbuthnot, and I, along with many other parliamentarians, have long argued for changes to the Computer Misuse Act. For context, the original Act was created largely in response to a famous incident in which professional hackers and a technology journalist broke into British Telecom’s Prestel system in the mid-1980s. The Bill received Royal Assent in June 1990, barely two months after Tim Berners-Lee and CERN made the world wide web publicly available for the first time. Who remembers Prestel? Perhaps this is the wrong House in which to ask that question.

As the noble Lord, Lord Holmes, explained, there is no statutory public interest defence in the Act. This omission creates a legal risk for cybersecurity researchers and professionals conducting legitimate activities in the public interest. The Post Office Horizon scandal demonstrated how critical independent computer system investigation is for uncovering systemic problems and highlighted the need for protected legal pathways for researchers and investigators to examine potentially flawed systems.

I am delighted that the noble Lord, Lord Vallance, is here for this set of amendments. His Pro-innovation Regulation of Technologies Review explicitly recommends incorporating such a defence to provide stronger legal protections for cybersecurity researchers and professionals engaged in threat intelligence research. This recommendation was rooted in the understanding that such a defence would have, it said,

“a catalytic effect on innovation”

within the UK’s cybersecurity sector, which possesses “considerable growth potential”.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I turn to Amendments 156A and 156B, tabled by the noble Lord, Lord Holmes. I understand the strength of feeling and the need to provide legal protections for legitimate cybersecurity activities. I agree with the noble Lord that the UK should have the right legislative framework to allow us to tackle the harms posed by cybercriminals. We have heard examples of some of those threats this afternoon.

I reassure the noble Lord that this Government are committed to ensuring that the Computer Misuse Act remains up to date and effective in tackling criminality. We will continue to work with the cybersecurity industry, the National Cyber Security Centre and law enforcement agencies to consider whether there are workable proposals on this. The noble Lord will know that this is a complex and ongoing issue being considered as part of the review of the Computer Misuse Act being carried out by the Home Office. We are considering improved defences by engaging extensively with the cybersecurity industry, law enforcement agencies, prosecutors and system owners. However, engagement to date has not produced a consensus on the issue, even within the industry, and that is holding us back at this moment—but we are absolutely determined to move forward with this and to reach a consensus on the way forward.

I think the noble Lord, Lord Clement-Jones, said in the previous debate that the amendments were premature, and here that is certainly the case. The specific amendments that the noble Lord has tabled are premature, because we need a stronger consensus on the way forward, notwithstanding all the good reasons that noble Lords have given for why it is important that we have updated legislation. With these concerns and reasons in mind, I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Holmes of Richmond (Con)]

Could the Minister say a few words on some of those points of discourse and non-consensus, to give the Committee some flavour of the type of issues where there is no consensus as well as the extent of the gap between some of those perspectives?

[Lord Clement-Jones (LD)]

Just to follow up, have the Government formally responded to the original review from the noble Lord, Lord Vallance? That would be very helpful as well, in unpacking what were clearly extremely well-informed recommendations. It should, no doubt, be taken extremely seriously.

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[Lord Clement-Jones (LD)]

Before the Minister sits down or stands up or whatever the appropriate phrase should be, I very much hope that, since the previous Government gave that indication, this Government will take that as a spur to non-glacial progress. I hope that at least the speed might get up to a number of miles per hour before too long.

[Lord Holmes of Richmond (Con)]

My Lords, I thank all noble Lords who have taken part in this important debate and, indeed, the Minister for her thoughtful response. We find ourselves in a position of extraordinary good fortune when it comes to these and many other amendments, not least in the area of artificial intelligence. We had a first-class report from the then Sir Patrick Vallance as CSA. It is not often in life that in a short space of time one is afforded the opportunity in government of bringing much of that excellent work into being through statute, regulation, codes and other guidance. I await further steps in this area.

There can barely be, in many ways, a more serious and pressing issue to be addressed. For every day that we delay, harms are caused. Even if the Government were only to do this on their growth agenda, much spoken of, this would have an economic benefit to the United Kingdom. It would be good to meet the Minister between Committee and Report to see if anything further can be done but, from my perspective and others, we will certainly be returning to this incredibly important issue. I beg leave to withdraw the amendment.

Amendment 156A withdrawn.

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Moved by

[Lord Holmes of Richmond]

211B: After Clause 132, insert the following new Clause—
“Consultation: data centre power usageOn the day on which this Act is passed, the Secretary of State must launch a consultation on the implications of the provisions in this Act for the power usage and energy efficiency of data centres.”

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to introduce this group of amendments. I have a 35-minute speech prepared. In moving Amendment 211B, I shall speak also to Amendments 211C to 211E. The reason for this group of amendments is to try to get an increased focus on the range of issues they touch on.

I turn to Amendment 211B first. It seems at least curious to have a data Bill without talking about data centres in terms of their power usage, their environmental impact and the Government’s view of the current PUE standard. Is it of a standard that they think gives the right measure of confidence to consumers and citizens across the country, in terms of how data centres are being operated and their impacts?

Similarly, on Amendment 211C, not enough consideration is given to supply chains. I am not suggesting that they are the most exciting subject but you have to go only one or two steps back in any supply chain to get into deep depths of opacity. With this amendment, I am seeking to gain more clarity on data supply chains and the role of data across all supply chains. Through the combination of data and AI, we could potentially enable a transformation of our supply chain in real time. That would give us so much more flexibility to try for economic benefits and environmental benefits. I look forward to the Minister’s response.

I now move on to Amendment 211D. It is always a pleasure to bring AI into a Bill that really does not want to have AI in it. I am interested in the whole question of data input and output, not least with large language models. I am also interested in the Government’s view on how this interacts with the 1988 copyright Act. There may be some mileage in looking into some standards and approaches in this area, which would potentially go some way towards conditions of market access. We have some excellent examples to look at in other sectors of our economy and society, as set out in the amendment; I would welcome the Minister’s views on that.

I am happy that this group ends with Amendment 211E on the subject of public trust. In many ways, it is the golden thread that should run through everything when we talk about data; I wanted it to be the golden thread that ran through my AI regulation Bill. I always say that Clause 6 is the most important clause in that Bill because it goes to the question of public engagement and trust. Without that level of public engagement and trust, it does not matter how good the technologies are, how good the frameworks are or how good the chat around the data is. It might be golden but, if the public do not believe in it, they are not going to come and be part of it. The most likely consequence of this is that they will not be able to avail themselves of the benefits but they will almost certainly be saddled with the burdens. What these technologies enable is nothing short of a transformation of that discourse between citizen and state, with the potential to reimagine completely the social contract for the benefit of all.

Public engagement and public trust are the golden thread and the fuel for how we gain those economic, social and psychological benefits from the data. I will be very interested in the Minister’s response on what more could be done by the Government, because previous consultations, not least around some of these technologies, have been somewhat short of what we could achieve. With that #brevity and #our data, I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I shall be #even shorter. Data centres and their energy consumption are important issues. I agree that at a suitable moment—probably not now—it would be very interesting to hear the Government’s views on that. Reports from UK parliamentary committees and the Government have consistently emphasised the critical importance of maintaining public trust in data use and AI, but sometimes, the actions of the Government seem to go contrary to that. I support the noble Lord, Lord Holmes, in his call for essentially realising the benefits of AI while making sure that we maintain public trust.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Lord, Lord Holmes, for tabling Amendment 221B and his other amendments in this group, which are on a range of varied and important issues. Given the hour, I hope he will be content if I promise to write to him on each of these issues and in the meantime, I ask him to withdraw the amendment.

[Lord Holmes of Richmond (Con)]

I thank all noble Lords who participated: I will not go through them by name. I thank the Minister for her response and would very much welcome a letter. I am happy to meet her on all these subjects but, for now, I beg leave to withdraw the amendment.

Amendment 211B withdrawn.