Data (Use and Access) Bill [HL]

Lord Russell of Liverpool Excerpts

Committee stage
Monday 16th December 2024 Grand Committee

[Lord Kirkhope of Harrogate (Con)]

My Lords, I was not going to rise at all for the moment because there are other amendments coming later that are of interest. I declare my rather unusual interest: I was one of the architects of the GDPR in Brussels.

I rise to support Amendment 211A in the name of my noble friend Lord Holmes because here we are referring to AI. I know that other remarks have now been passed on this matter, which we will come to later, but it seems to me—this has come straight into my mind—that, when the preparation of the data legislation and the GDPR was being undertaken, we really did fail at that stage to accommodate the vast and important areas that AI brings to the party, as it were. We will fail again, I suspect, if we are not careful, in this piece of legislation. AI is with us now and moving at an enormous pace—faster than any legislator can ever manage to keep up with in order to control it and to make sure that there are sufficient protections in place for both the misuse of this technology and the way it may develop. So I support this amendment, particularly in relation to the trading or use of likenesses and the algorithmic effects that come about.

We will deal with that matter later, but I hope that the Minister will touch on this, particularly having heard the remarks of my noble friend Lord Holmes—and, indeed, the remarks of my noble friend Lady Harding a moment ago—because AI is missing. It was missing in the GDPR to a large extent. It is in the European Union’s new approach and its regulations on AI, but the EU has already shown that it has enormous difficulties in trying to offer, at one stage, control as well as redress and the proper involvement of human beings and individual citizens.

[Lord Russell of Liverpool (CB)]

My Lords, I rise briefly to support my noble friend Lady Kidron on Amendment 137. The final comments from the noble and learned Lord, Lord Thomas, in our debate on the previous group were very apposite. We are dealing with a rapidly evolving and complex landscape, which AI is driving at warp speed. It seems absolutely fundamental that, given the panoply of different responsibilities and the level of detail that the different regulators are being asked to cover, there is on the face of what they have to do with children absolute clarity in terms of a code of practice, a code of conduct, a description of the types of outcomes that will be acceptable and a description of the types of outcomes that will be not only unacceptable but illegal. The clearer that is in the Bill, the more it will do something to future-proof the direction in which regulators will have to travel. If we are clear about what the outcomes need to be in terms of the welfare, well-being and mental health of children, that will give us some guidelines to work within as the world evolves so quickly.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I have co-signed Amendment 137. I do not need to repeat the arguments that have already been made by those who have spoken before me on it; they were well made, as usual. Again, it seems to expose a gap in where the Government are coming from in this area of activity, which should be at the forefront of all that they do but does not appear to be so.

As has just been said, this may be as simple as putting in an initial clause right up at the front of the Bill. Of course, that reminds me of the battle royal we had with the then Online Safety Bill in trying to get up front anything that made more sense of the Bill. It was another beast that was difficult to ingest, let alone understand, when we came to make amendments and bring forward discussions about it.

My frustration is that we are again talking about stuff that should have been well inside the thinking of those responsible for drafting the Bill. I do not understand why a lot of what has been said today has not already appeared in the planning for the Bill, and I do not think we will get very far by sending amendments back and forward that say the same thing again and again: we will only get the response that this is all dealt with and we should not be so trivial about it. Could we please have a meeting where we get around the table and try and hammer out exactly what it is that we see as deficient in the Bill, to set out very clearly for Ministers where we have red lines—that will make it very easy for them to understand whether they are going to meet them or not—and do it quickly?

Data (Use and Access) Bill [HL]

Lord Russell of Liverpool Excerpts

Committee stage
Tuesday 10th December 2024 Grand Committee

Finally, all I can say of Amendment 196, from over a decade of work on online safety, is that small is not safe.

[Lord Russell of Liverpool (CB)]

My Lords, I put my name to the amendments from the noble Baroness, Lady Kidron, and will briefly support them. I state my interest as a governor of Coram, the children’s charity. One gets a strong sense of déjà vu with this Bill. It takes me back to the Online Safety Bill and the Victims and Prisoners Bill, where we spent an inordinate amount of time trying to persuade the Government that children are children and need to be treated as children, not as adults. That was hard work. They have an absolute right to be protected and to be treated differently.

I ask the Minister to spend some time, particularly when her cold is better, with some of her colleagues whom we worked alongside during the passage of those Bills in trying to persuade the then Government of the importance of children being specifically recognised and having specific safeguards. If she has time to talk to the noble Lords, Lord Ponsonby, Lord Stevenson and Lord Knight, and the noble Baroness, Lady Thornton —when she comes out of hospital, which I hope will be soon—she will have chapter, book and verse about the arguments we used, which I hope we will not have to rehearse yet again in the passage of this Bill. I ask her please to take the time to learn from that.

As the noble Baroness said, what is fundamental is not what is hinted at or implied at the Dispatch Box, but what is actually in the Bill. When it is in the Bill, you cannot wriggle out of it—it is clearly there, stating what it is there for, and it is not open to clever legal interpretation. In a sense, we are trying to future-proof the Bill by, importantly, as she said, focusing on outcomes. If you do so, you are much nearer to future-proofing than if you focus on processes, which by their very nature will be out of date by the time you have managed to understand what they are there to do.

Amendment 135 is important because the current so-called safeguard for the Information Commissioner to look after the interests of children is woefully inadequate. One proposed new section in Clause 90 talks of

“the fact that children may be less aware of the risks and consequences associated with processing of personal data and of their rights in relation to such processing”.

It is not just children; most adults do not have a clue about any of that, so to expect children to have even the remotest idea is just a non-starter. To add insult to injury, that new section begins

“the Commissioner must have regard to such of the following”—

of which the part about children is one—

“as appear to the Commissioner to be relevant in the circumstances”.

That is about as vague and weaselly as it is possible to imagine. It is not adequate in any way, shape or form.

In all conscience, I hope that will be looked at very carefully. The idea that the commissioner might in certain circumstances deem that the status and importance of children is not relevant is staggering. I cannot imagine a circumstance in which that would be the case. Again, what is in the Bill really matters.

On Amendment 94, not exempting the provision of information regarding the processing of children’s data is self-evidently extremely important. On Amendment 82, ring-fencing children’s data from being used by a controller for a different purpose again seems a no-brainer.

Amendment 196, as the noble Lord, Lord Clement-Jones, says, is a probing amendment. It seems eminently sensible when creating Acts of Parliament that in some senses overlap, particularly in the digital and online world, that the left hand should know what the right hand is doing and how two Acts may be having an effect on one another, perhaps not in ways that had been understood or foreseen when the legislation was put forward. We are looking for consistency, clarity, future-proofing and a concentration on outputs, not processes. First and foremost, we are looking for the recognition, which we fought for so hard and finally got, that children are children and need to be recognised and treated as children.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I think we sometimes forget, because the results are often so spectacular, the hard work that has had to happen over the years to get us to where we are, particularly in relation to the Online Safety Act. It is well exemplified by the previous speaker. He put his finger on the right spot in saying that we all owe considerable respect for the work of the noble Baroness, Lady Kidron, and others. I helped a little along the way. It is extraordinary to feel that so much of this could be washed away if the Bill goes forward in its present form. I give notice that I intend to work with my colleagues on this issue because this Bill is in serious need of revision. These amendments are part of that and may need to be amplified in later stages.

I managed to sign only two of the amendments in this group. I am sorry that I did not sign the others, because they are also important. I apologise to the noble Lord, Lord Clement-Jones, for not spotting them early enough to be able to do so. I will speak to the ones I have signed, Amendments 88 and 135. I hope that the Minister will give us some hope that we will be able to see some movement on this.

The noble Lord, Lord Russell, mentioned the way in which the wording on page 113 seems not only to miss the point but to devalue the possibility of seeing protections for children well placed in the legislation. New Clause 120B(e), which talks of

“the fact that children may be less aware of the risks and consequences associated with processing of personal data and of their rights in relation to such processing”,

almost says it all for me. I do not understand how that could possibly have got through the process by which this came forward, but it seems to speak to a lack of communication between parts of government that I hoped this new Government, with their energy, would have been able to overcome. It speaks to the fact that we need to keep an eye on both sides of the equation: what is happening in the online safety world and how data that is under the control of others, not necessarily those same companies, will be processed in support or otherwise of those who might wish to behave in an improper or illegal way towards children.

At the very least, what is in these amendments needs to be brought into the Bill. In fact, other additions may need to be made. I shall certainly keep my eye on it.

Data (Use and Access) Bill [HL]

Lord Russell of Liverpool Excerpts

2nd reading
Tuesday 19th November 2024 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I thank the noble Lord, Lord Lucas, for injecting a bit of reality into this discussion. I declare my interest as a governor of Coram. I thank the noble Lord very much for his comments about the Cross Benches. Perhaps if we let HOLAC choose the Cross Benches and Copilot the political appointees, we might be slightly more successful than we have been in recent years.

I am conscious that I am the only person between your Lordships and the joys of the Front-Bench spokespeople, so I shall not take too long. I welcome the Bill, but I have some concerns. In particular, in reading through the introduction on page 1 line by line, I counted 12 instances of the Bill being “to make provision” and not a single specific mention of protection, which I feel is perhaps a slight imbalance.

I have six areas of concern that I suspect I and many others will want to explore in Committee. I am not going to dive into the detail at this stage, because I do not think it is appropriate.

Like many noble Lords, including the noble Lords, Lord Knight, Lord Vaux and Lord Bassam, and the noble and learned Lord, Lord Thomas, I have some concerns about the extension of the UK’s data adequacy status beyond June next year. Given that one of the key objectives of this Bill is to help economic growth, it is incredibly important that that happens smoothly. It is my hope and expectation that the new His Majesty’s Government will find it slightly less painful and more straightforward to talk to some of our colleagues across the water in the EU to try to understand what each side is thinking and to ease the way of making that happen.

Secondly, like many noble Lords, I have a lot of concern about what is rather inelegantly known as “web scraping”—a term that sounds to me rather like an unpleasant skin rash—of international property and its sheer disregard for IP rights, so undermining the core elements of copyright and the value of unique creative endeavour. It is deeply distasteful and very harmful.

One area that I hope we will move towards in Committee is the different departments of His Majesty’s Government that have an interest in different parts of this Bill consciously working together. In the case of web scraping, I think the engagement of Sir Chris Bryant in his dual role as Minister of State for Data Protection and Minister for Creative Industries will be very important. I hope and expect that the Minister and her colleagues will be able to communicate as directly as possible and have a sort of interplay between us in Committee and that department to make sure that we are getting the answers that we need. It is frankly unfair on the Minister, given that she is covering the ground of I-do-not-know-how-many Ministers down the other end, for her also to take on board the interests, concerns and views of other departments, so I hope that we can find a way of managing that in an integrated way.

Thirdly, like my noble friend Lady Kidron, I am appalled by AI-produced child sexual abuse material. To that extent, I make a direct request to the Minister and the Bill team that they read an article published on 18 October in the North American Atlantic magazine by Caroline Mimbs Nyce, The Age of AI Child Abuse is Here. She writes about what is happening the USA, but it is unpleasantly prescient. She writes,

“child-safety advocates have warned repeatedly that generative AI is now being widely used to create sexually abusive imagery of real children”—

not AI avatars—

“a problem that has surfaced in schools across the country”.

It is certainly already happening here. It will be accelerating. Some of your Lordships may have read about a scandal that has emerged in South Korea. My daughter-in-law is South Korean. AI-created adult sexual material has caused major trauma and a major decline in female mental health. In addition, when it comes to schools, there are real concerns about the ability of companies to scoop up photographic information about children from photos that schools have on their own websites or Facebook pages. Those images can then potentially be used for variety of very unpleasant reasons, so I think that is an area which we would want to look at very carefully.

Fourthly, there are real concerns about the pervasive spread of educational technology—edtech, as it is known informally—driven, understandably, by commercial rather than educational ambition in many cases. We need to ensure that the age-appropriate design code applies to edtech and that is something we should explore. We need to prioritise the creation of a code of practice for edtech. We know of many instances where children’s data has been collected in situations where the educational establishments themselves, although they are charged with safeguarding, are wholly inadequate in trying to do it, partly because they do not really understand it and partly because they do not necessarily have the expertise to do it. It is unacceptable that children in school, a place that should be a place of safety, are inadvertently exposed to potential harm because schools do not have the power, resources and knowledge to protect the children for whom they are responsible. We need to think carefully about what we need to do to enhance their ability to do that.

On my fifth concern, the noble Lords, Lord Stevenson and Lord Holmes, made a very good point, in part about the Bletchley declaration. It would be helpful for us as a country and certainly as Houses of Parliament to have some idea of where the Government think we are going. I understand that the new Government are relatively recently into their first term and are somewhat cautious about saying too much about areas that they might subsequently regret, but I think there is a real appetite for a declaratory vision with a bit of flesh on it. We all understand that it might need to change as AI, in particular, threatens to overtake it, but having a stab at saying where we are, what we are doing, why we are doing it, the direction of travel and what we are going to do to modify it as we go along, because we are going to have to because of AI, would be helpful and, frankly, reassuring.

Lastly, during the passage of the Online Safety Bill, many of us tried to make the case for a Joint Committee to oversee digital regulation and the regulators themselves. I think it would be fair to say that the experience of those of us who were particularly closely involved with what is now the Online Safety Act and the interactions that we have had formally or informally with the regulator since then, and the frustrations that have emerged from those interactions, have demonstrated the value of having a joint statutory committee with all the powers that it would have to oversee and, frankly, to call people to account. It would really concentrate minds and make the implementation of that Act, and potentially this Act, more streamlined, more rapid and more effective. It could be fine-tuned thereafter much more effectively, in particular if we are passing a Bill that I and my fellow members of the Secondary Legislation Scrutiny Committee will have the joy of looking at in the form of statutory instruments. Apart from anything else, having a Joint Committee keep a close watch on the flow of statutory instruments would be enormously helpful.

As we are dealing with areas which are in departments that are not immediately within the remit of the Minister, such as the Department for Education given what I was talking about with schools, anything we can do to make it clear that the left hand knows what the right hand is doing would be extraordinarily helpful. I think there have been precedents in particular cases in Committee when we are dealing with quite detailed amendments for colleagues from other departments to sit on the Bench alongside the Minister to provide real departmental input. That might be a course that we could fruitfully follow, and I would certainly support it.

Independent Pornography Review

Lord Russell of Liverpool Excerpts

Monday 14th October 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

We are working with Ofcom on the requirement to introduce age-appropriate protections. A number of businesses are already beginning to do that, as I am sure the noble Lord knows. Our task is not to find the technology, which I believe is already out there; it is to make sure we have a standardised system that runs across all businesses and social media sites, so that people can be assured the same rules are being applied across the piece, rather than individual companies introducing their own age-assurance and age-protection requirements. I would like to think that it is not a technological bar we are confronting.

[Lord Russell of Liverpool (CB)]

My Lords, as the Minister will be aware, a great deal of the efforts of those of us involved in the passage of the Online Safety Act were focused on safeguarding children. Given that primary school children onwards can easily access the internet and online pornography, and given that research shows that one in eight pieces of pornography is actively violent, and eight and nine year-olds are seeing that, will the Government please recognise this issue and take action? I do not want to be asking this question again in a year’s time.

[Baroness Jones of Whitchurch (Lab)]

The noble Lord is quite right about that. However, I reassure him that Ofcom has robust enforcement powers that will be available to use against companies that do not fulfil their duties to take action against these sites. The frustration is, in part, because not all aspects of the Online Safety Act have been introduced yet; some are not coming onstream until next year. But I like to think that once all the elements of the Act are introduced, we will have a robust system. As I have said, if gaps appear we will take action to try to fill them. It is not our intention to have an incomplete range of legislative tools to tackle what, as the noble Lord says, is a very important threat to our country.