Data (Use and Access) Bill [HL]

Lord Vallance of Balham Excerpts

Consideration of Commons amendments and / or reasons
Monday 12th May 2025 Lords Chamber

Moved by

[Lord Vallance of Balham]

That this House do agree with the Commons in their Amendment 1.

1: Clause 4, page 6, line 25, after “recipient” insert “in relation to business data”

[The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)]

My Lords, I will speak to some of the amendments made in the other place, starting with Amendments 1 to 31. These will ensure that smart data schemes can function optimally and that Part 1 is as clear as possible. Similarly, Amendments 35 to 42 from the other place reflect discussions on the national underground asset register with the devolved Governments. Finally, Amendments 70 to 79 make necessary consequential updates to the final provisions of the Bill and some updates to Schedules 11 and 15.

I will now speak to the amendments tabled by noble Lords, starting with those relating to sex data. Motion 32A disagrees with the amendment to remove Clause 28(3) and (4), and instead proposes changes to the initial drafting of those subsections. These would require the Secretary of State, when preparing the trust framework, to assess whether the 15 specified public authorities can reliably ascertain the data they collect, record and share. Amendment 32B limits this assessment to sex data, as defined through Amendment 32C; that definition limits sex to biological sex only and provides a definition of acquired gender.

It is also relevant to speak now to Motion 52A, which disagrees with the amendment to remove Clause 140 and, instead, suggests changes to the drafting. Clause 140, as amended by Amendment 52B, seeks to, through a regulation-making power, give the Secretary of State the ability to define sex as being only biological sex in certain areas or across public sector data processing more widely. Let me be clear that this Government accept the recent Supreme Court judgment on the definition of sex for the purposes of equality legislation. We need to work through the effects of this ruling holistically and with care, sensitivity and—dare I say it—kindness. In line with the law, we need to take care not to inappropriately extend its reach. This is not best done by giving the Secretary of State the power to define sex as biological in all cases through secondary legislation without appropriate scrutiny, given the potential impact on people’s human rights, privacy and dignity, and the potential to create legal uncertainty. Likewise, giving the Secretary of State a role in reviewing how other public authorities process sex data in all circumstances based on that definition would be inappropriate and disproportionate, and I note that the Supreme Court’s ruling relates specifically to the meaning of sex in equalities legislation.

The driver behind these amendments has been the importance of sex data being accurate when processed by public authorities. I strongly agree with that aim: accurate data is essential. This Government take data accuracy—including the existing legislation that requires personal data to be accurate—and data standards seriously. That is why we are addressing the question of sex information in public sector data. First, the EHRC is updating its statutory code of practice to support service providers in light of the Supreme Court judgment. Secondly, the Data Standards Authority is developing data standards on the monitoring of diversity information, including sex and gender data, and the effect of the Supreme Court judgment will be considered as part of that work.

Thirdly, the Office for Statistics Regulation published updated guidance on collecting and reporting data and statistics about sex and gender identity data last year. Fourthly, the Office for National Statistics published a work plan in December 2024 for developing harmonised standards on data more generally. Finally, the department is currently considering the implementation of the Sullivan review, published this year, which I welcome.

On digital verification services, I reassure noble Lords that these measures do not change the evidence that individuals rely on to prove things about themselves. The measures simply enable that to be done digitally. This Government are clear that data must be accurate for the purpose for which it is being used and must not be misleading. It should be clear to digital verification services what the information public authorities are sharing with them means. I will give an important example. If an organisation needs to know a person’s biological sex, this Government are clear that a check cannot be made against passport data, as it does not capture biological sex. DVS could only verify biological sex using data that records that attribute specifically, not data that records sex or gender more widely.

I know this is a concern of the noble Lord, Lord Arbuthnot, and I hope this provides some reassurance. The data accuracy principle of GDPR is part of existing law. That includes where data is misleading—this is a point I will return to. I hope that noble Lords find this commitment reassuring and, as such, will agree with Commons Amendment 32.

Motion 34A on Amendments 34B and 34C address the security of the national underground asset register. Security has always been at the heart of the national underground asset register. We have therefore listened to the well-thought-through concerns that prompted the amendment previously tabled by the noble Viscount, Lord Camrose, regarding cybersecurity. Following consideration, the Government are instead proposing an amendment we have drafted with support of colleagues in the security services. We believe this addresses the intention of ensuring the security of the national underground asset register data, with three key improvements.

First, it broadens the scope from cybersecurity only to the general security of information kept in or obtained from the national underground asset register. This will ensure that front-end users have guidance on a range of measures for security good practice—for example, personnel vetting, which should be considered for implementation—while avoiding the need to publish NUAR-specific cybersecurity features that should not be in the public domain. Secondly, it specifies the audience for this guidance; namely, users accessing NUAR. Finally, it broadens the scope of the amendment to include Northern Ireland alongside England and Wales, consistent with the NUAR measures overall. Clearly, it remains the case that access to NUAR data can be approved for purposes only by eligible users, with all access controlled and auditable. As such, I hope that noble Lords will be content to support government Motion 34A and Amendments 34B and 34C.

Commons Amendment 43, made in the other place, on scientific research removes the public interest test inserted in the definition of scientific research by the noble Viscount, Lord Colville. While recognising the concern the noble Lord raises, I want to be clear that anything that does not count as scientific research now would not do so under the Bill. Indeed, we have tightened the requirement and added a reasonableness test. The Bill contains strong safeguards. Adding precise definitions in the Bill would not strengthen these protections but impose a significant, new legal obligation on our research community at a time when, in line with the good work of the previous Government, we are trying to reduce bureaucracy for researchers, not increase it with new processes. The test proposed will lead to burgeoning bureaucracy and damage our world-leading research. This disproportionate step would chill basic and curiosity-driven research, and is not one we can support.

I beg to move that the House agree with the Commons in their Amendment 1. I have spoken to the other amendments.

[Viscount Camrose (Con)]

My Lords, I first thank the Minister for his—as ever—clear and compelling remarks. I thank all noble Lords who have been working in a collegiate, collaborative fashion to find a way forward on the few but important remaining points of disagreement with the Government.

Before I come to the issue of accurate recording of personal data, I also thank the Minister, the noble Baroness, Lady Jones, for tabling the government amendments on the national underground asset register and her constructive engagement throughout the progress of the Bill.

As noble Lords will recall, I set out our case for stronger statutory measures to require the Secretary of State to provide guidance to relevant stakeholders on the cybersecurity measures that should be in place before they receive information from the national underground asset register. I am of course delighted that the Government have responded to the arguments that we and others made and have now tabled their own version of my amendment which would require the Secretary of State to provide guidance on the security of this data. We are happy to support them in that.

I turn to Motions 32A and 52A standing in my name, which seek to ensure that data is recorded accurately. They amend the original amendment, which my noble friends Lord Lucas and Lord Arbuthnot took through your Lordships’ House. My noble friend Lord Lucas is sadly unable to attend the House today, but I am delighted to bring these Motions forward from the Opposition Front Bench. In the other place, the Conservative Front Bench tabled new Clause 21, which would, we feel, have delivered a conclusive resolution to the problem. Sadly, the Government resisted that amendment, and we are now limited by the scope of the amendments of my noble friend Lord Lucas, so we were unable to retable the, in my view, excellent amendment in your Lordships’ House.

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[Lord Clement-Jones (LD)]

My Lords, I have had a misspent not-so-youth over the past 50 years. As a lawyer, when I read the wording in the amendment, I cannot see the outcome that he is suggesting. This wording does not cut across anything that he has had to say. I genuinely believe that. I understand how genuine he is in his belief that this is a threat, but I do not believe this wording is such a threat.

I also understand entirely what the noble Lord, Lord Tarassenko, had to say, but an awful lot of that was about the frustration and some of the controls over health data. That does not apply in many other areas of scientific research. The Frascati formula is universal and well accepted. The noble Viscount made an extremely good case; we should be supporting him.

[Lord Vallance of Balham (Lab)]

I thank the noble Viscount, Lord Camrose, for his Motion 32A and Amendments 32B and 32C, and Motion 52A and Amendments 52B and 52C. I reiterate that this Government have been clear that we accept the Supreme Court judgment on the meaning of sex for equalities legislation. However, as the noble Viscount, Lord Hailsham, says, it is critically important that the Government work through the effect of this ruling with care, sensitivity and in line with the law.

When it comes to public sector data, we must work through the impacts of this judgment properly. This would involve considering the scope of the judgment and the upcoming EHRC guidance. Critically, the Equality and Human Rights Commission has indicated that it will be updating its statutory code of practice for services, public functions and associations in light of this ruling, which will include some of the examples raised this afternoon, including by my noble friend Lady Hayter.

Ministers will consider the proposals once the EHRC has submitted its updated draft. It is right that the Government and, indeed, Parliament fully consider this guidance alongside the judgment itself before amending the way that public authorities collect, hold and otherwise process data—a point made by the noble Lord, Lord Clement-Jones, about the EHRC ruling.

I set out in my opening speech that this Government take the issue of data accuracy seriously. That is why, as I outlined, there are numerous existing work streams addressing the way in which sex and gender data are collected and otherwise processed across the public sector.

The digital verification services amendments that we have discussed today are misplaced, because the Bill does not alter the evidence and does not seek to alter the content of data used by digital verification services. Instead, the Bill enables people to do digitally what they can do physically. It is for organisations to consider what specific information they need to verify their circumstances, and how they go about doing that. Any inconsistency between what they can do digitally and what they can do physically would cause further confusion.

While this Government understand the intention behind the amendments, the concerns regarding the way in which public authorities process sex and gender data should be considered holistically, taking into account the effects of the Supreme Court ruling, the upcoming guidance from the equalities regulator and the specific requirements of public authorities. It is very unlikely that the digital verification services would be used for many of the cases specifically raised by or with many noble Lords. We expect DVS to be used primarily to prove things like one’s right to work or one’s age, address or professional educational qualifications.

The noble Viscount, Lord Hailsham, rightly highlights that the proposals have the potential to interfere with the right to respect for private and family life under the Human Rights Act by, in effect, indiscriminately and indirectly pushing public authorities to record sex as biological sex in cases where it is not necessary or proportionate in that particular circumstance. I raise the example that has been brought up several times, and again by the noble Baroness, Lady Fox: it is not relevant for the French passport officer to know your biological sex. That is not the purpose of the passport.

We acknowledge, however, that there are safeguards that address the concerns raised by noble Lords, including those of the noble Viscount, Lord Camrose, and the noble Lord, Lord Arbuthnot, regarding information being shared under Clause 45 but without presenting issues that could cut across existing or prospective legislation and guidance. I remind the House that the data accuracy principle is already included in law. The principle requires that only data accurate for the purpose for which it is held can be used. Again, there are workstreams looking at data use to answer the points raised by the noble Lord, Lord Arbuthnot, and indeed by the noble and learned Baroness, Lady Butler-Sloss.

The noble Baroness, Lady Ludford, asked why it was not accurate for 15 years and what that means about our reliance on this accuracy. I am afraid the fact is that it was accurate for 15 years because there was a muddle about what was being collected. There was no requirement to push for biological sex, but that is the case now. In response to the question of whether you could end up with two different sources of digital verification showing two different biological sexes, the answer is no.

[Baroness Ludford (LD)]

I beg the House’s indulgence and indeed the Minister’s for my interrupting him. The fact is that the Supreme Court has confirmed what was always the law: that the Equality Act meant biological sex. It is therefore not true that the data accuracy principle has ensured that the law has been followed for the past 15 years. I am sorry, I find that answer a little dismissive. I do not think we can rely on that sort of assurance, and I apologise for saying that.

[Lord Vallance of Balham (Lab)]

I apologise to the noble Baroness if she found that dismissive. My point was to try to say that there is a clear imperative under the new situation to have biological sex verified as biological sex. As a result—though not in all cases; I have given an example where it would be inappropriate to have that information—where you need that, it would not be possible, to answer her second question, to have two different sources of verification that gave two different biological sexes.

When information is shared through the gateway, it will be clear what that information represents, including in relation to sex and gender. In the light of the Supreme Court judgment, I further reassure Members by clarifying that, before the information gateway provision is commenced, the Government will carefully consider how and when biological sex may be relevant in the context of digital verification checks, and will take that into account when preparing the DVS code of practice.

I hope that these commitments and the assurance about the EHRC will provide noble Lords with reassurances that their concerns will indeed be taken into account. The amendments proposed do not fully take into account the fact that the Gender Recognition Act gives those with gender recognition certificates a level of privacy and control over who has access to information about their gender history. It is essential that Government have the chance to fully assess the Supreme Court judgment and update guidance accordingly. Given the need to consider this area holistically to ensure alignment with existing legislation and upcoming EHRC guidance, the breadth of work already being carried out on public data standards and data harmonisation and statistics, and the specific reassurance on compliance with the accuracy principle under the UK GDPR, I hope the noble Viscount feels comfortable not pressing his amendments.

I turn to Motion 43A from the noble Viscount, Lord Colville. Scientific research is one of the UK’s great strengths. We are home to four of the top 10 universities in the world and are in the top three in scientific outputs. Today’s researchers depend on data, and the UK data protection framework contains certain accommodations for processing personal data for purposes that meet the definition of scientific research in Clause 67. I understand the noble Viscount’s intention to avoid misuse of these research provisions, but the Royal Society has said the reasonableness test in the Bill provides adequate protection against that. The Bill actually tightens the current position, with the ICO being able to use the reasonableness test. “Reasonable” does not mean the subjective opinion of an uninformed person; it refers to an objective, fair observer with good judgment and knowledge of the relevant facts. Such tests are well known to UK courts.

The Bill does not extend and expand that definition. If something is not considered scientific research now, it will not be under the Bill. Similarly, the Bill does not provide any new permission for reusing data for other research purposes. Moreover, further safeguards are provided in Clause 86 and the wider UK GDPR, including the requirement that processing be fair. The Bill clarifies that all reuse of data must have a lawful basis, putting an end to previous confusion on the matter. Adding further specific conditions to the definition in law will be unnecessary and impose a disproportionate burden on researchers, who already say they spend too much time on red tape. The previous Government rightly started to tackle the pernicious creep of increased bureaucracy in research. We should not add more. At worst, this could have an unintended harmful consequence and exclude genuine researchers.

The Frascati manual provides useful guidance; it is not, however, a legal definition. Requiring researchers to start complying with a new legal standard, and one that might change, would undoubtedly create more committees and more bureaucracy—the very thing that Max Perutz argued against in his guidelines on great research.

My noble friend Lord Winston and the noble Lord, Lord Tarassenko, have given powerful examples. Let me give two examples of where the proposals might cause problems. Does requiring research to be creative hinder the essential task in science of testing or reproducing existing findings? Does the Frascati manual definition of “systematic”, which means “budgeted”, exclude unfunded, early research trying to get a foothold? Let us not dampen the UK’s world-leading research sector for a protection that is already included in the Bill.

I sympathise with the intentions of the noble Viscount, Lord Colville. I assure him that the Bill also contains a power to add to the existing safeguards and narrow access to the research provisions if necessary. The Government would not hesitate to use that power if it ever became necessary to tackle misuse.

Motion on Amendment 1 agreed.

Data (Use and Access) Bill [HL]

Lord Vallance of Balham Excerpts

Committee stage
Wednesday 18th December 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

I can tell the noble Lord, Lord Holmes, that we published our analysis of the consultation responses to the previous Home Office investigation in November 2023, so all those mixed responses are on the record. It was therefore concluded by the Government that further work needed to be done on this. On my noble friend’s report, was there a government response?

[Lord Vallance of Balham (Lab)]

Yes, the Government accepted the recommendations in full.

[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.

--- Later in debate ---

Ultimately, we need to know considerably more about this before Report, so I ask the Minister to write with a detailed technical description of the proposed solution, terms of reference for the consultation exercise and the Government’s plans to drive international adoption of their approach or to adapt their approach based on international proposals.

[The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)]

As someone who has spent my life creating IP, protecting IP and sometimes giving IP away, I welcome this debate. I am extremely grateful to the noble Baroness, Lady Kidron, for a very thoughtful set of proposals. The fact that many noble Lords have spoken in this debate shows that the rapid development of AI has clearly raised concerns about how to protect the creative industries. The Government take this very seriously. As the noble Lord, Lord Lucas, pointed out, we need to get it right, which is why we have launched a very wide-ranging consultation on a package of interventions to address copyright and AI issues. It is an important first step in an area where the existing situation is clearly not working and we run the risk of many long-lasting court cases, which will not help the situation in which we find ourselves.

We are committed both to supporting human-centred creativity and to the potential of AI to unlock new horizons. Many in the creative industries use AI very widely already. Our goal is to support AI innovation in the UK while maintaining robust protection for creators and our vibrant creative industry. In response to a point that the noble Baroness, Lady Kidron, raised earlier, option 1 in the consultation refers to existing copyright law and asks for views about maintaining and increasing it. The consultation sets out the Government’s objectives for this area and proposes a range of measures on which we are seeking views. Specifically, it aims to support rights-holders to continue to exercise control over the use of their content and their ability to seek remuneration for this. As many noble Lords have pointed out, that has to be made easy and technically feasible. It also promotes greater trust and transparency and proposes mechanisms by which you can see who is looking at the data and what they are doing with it.

Finally, it aims to support the development of world-leading AI models in the UK by ensuring that access can be appropriately wide but, of course, lawful and with the approval of those it is got from. This includes the subjects of the noble Baroness’s amendments. The consultation seeks views on technological measures that can provide greater control over access to and use of the online material, as well as transparency measures that help copyright owners understand whether their work is being used by AI developers. Again, this needs to be made easy. Various technologies are coming along which can do that, including, as has been said, the watermarking approach.

Much of this needs to be wrapped into an approach to standards. It is important that this is done in a way that is reproducible and reliable. Through this consultation, we will address some of these issues and seek to continue to get input from stakeholders on all of them. We will also work towards internationally interoperable solutions, as raised by many noble Lords, including the noble Lord, Lord Freyberg, and the noble Earl, Lord Effingham.

I agree with the noble Baroness, Lady Kidron, that a vibrant and effective licensing approach—a system that works well and provides access and rights—is important. She asked about an impact assessment. I do not have the information with me now, but I will write. I look forward to updating her on this work in due course and, in the meantime, hope that she is content to withdraw her amendment.

[Baroness Kidron (CB)]

Does the Minister recognise the characterisation of noble Lords who have said that this is theft? Currently, we have a law and copyright is being taken without consent or remuneration. Does he agree with them that this is what the creative industries and, I presume, some of his community are experiencing?

[Lord Vallance of Balham (Lab)]

At the moment we have a system where it is unclear what the rights are and how they are being protected, and therefore things are being done which people are unable to get compensation for. We can see that in the court cases going on at the moment. There is uncertainty which needs to be resolved.

[Baroness Kidron (CB)]

I thank the Minister for his answer and welcome him very much to the Dispatch Box—I have not yet had the pleasure of speaking with him in a debate. I hope he saw the shaking heads when he answered my question about theft and this lack of clarity. If you say “Write me the opening chapter of a Stephen King novel”, and the AI can do it, you can bet your bottom dollar that it has absorbed a Stephen King novel. We know that a lot of this material is in there and that it is not being paid for. That goes for issues big and small.

I understand that it is late and we have more to do—I have more to say on other issues—but I want to reiterate three points. First, creative people are not anti-tech; they just want control over the things they create. AI is a creation on top of a creation, and creative people want to be paid for their efforts and to be in control of them. I am not sure whether I can mention it, because it was in a private meeting, but a brand that many people in most countries will have heard of said: “We need to protect our brand. We mean something. An approximation of us is not us. It is not just the money; it is also the control”.

I also make the point that, earlier this week, Canal+ had its IPO on the London Stock Exchange. I heard the CEO answer the question, “Why is it that Canal+ decided to come and do its IPO in the UK when everybody else is scarpering elsewhere?”, by saying a lot of very warm-hearted things about Paddington Bear, then, “Because you have very good copyright laws”. That is what they said. I just want to mention that.

Finally, I am grateful to the Minister for saying that there is the option of staying with the status quo; I will look at that and try to understand it clearly. However, when he writes about the issue that I raised in terms of opting in or opting out—I am grateful to him for doing so—I would also like an answer about where the Government think the money is going to go. What is the secondary value of the AI companies, which are largely headquartered in the US? Where will the IP, which those companies have already said they want to protect—they did so in their response to the Government’s consultation; I said that it in my speech, for anyone who was not listening—go? I would like the Government to say what their plans are, if we lose the £1.6 billion and the 2.4 million jobs, to replace that money and those jobs, as well as their incredible soft power.

With that, I beg leave to withdraw the amendment.

Data (Use and Access) Bill [HL]

Lord Vallance of Balham Excerpts

Committee stage
Monday 16th December 2024 Grand Committee

[Viscount Camrose (Con)]

My Lords, I address the amendments tabled by the noble Lord, Lord Clement-Jones. These proposals aim to transfer jurisdiction from courts to tribunals; to establish a new right of appeal against decisions made by the Information Commissioner; and to grant the Lord Chancellor authority to implement tribunal procedure rules. I understand and recognise the noble Lord’s intent here, of course, but I have reservations about these amendments and urge caution in accepting them.

The suggestion to transfer jurisdiction from courts to tribunals raises substantial concerns. Courts have a long-standing authority and expertise in adjudicating complex legal matters, including data protection cases. By removing these disputes from the purview of the courts, the risk is that we undermine the depth and breadth of legal oversight required in such critical areas. Tribunals, while valuable for specialised and expedited decisions, may not provide the same level of rigorous legal analysis.

Cases such as those cited by the noble Lord, Lord Clement-Jones—Killock and another v the Information Commissioner and Delo v the Information Commissioner—demonstrate to me the intricate interplay between data protection, administrative discretion and broader legal principles. It is questionable whether tribunals, operating under less formal procedures, can consistently handle such complexities without diminishing the quality of justice. Further, I am not sure that the claim that this transfer will streamline the system and reduce burdens on the courts is fully persuasive. Shifting cases to tribunals does not eliminate complexity; it merely reallocates it, potentially at the expense of the detailed scrutiny that these cases demand.

I turn to the right of appeal against the commissioner’s decisions. Although the introduction of a right of appeal against these decisions may seem like a safeguard, it risks creating unnecessary layers of litigation. The ICO already operates within a robust framework of accountability, including judicial review for cases of legal error or improper exercise of discretion. Adding a formal right of appeal risks encouraging vexatious challenges, overwhelming the tribunal system and diverting resources from addressing genuine grievances.

I think we in my party understand the importance of regulatory accountability. However, creating additional mechanisms should not come at the expense of efficiency and proportionality. The existing legal remedies are designed to strike an appropriate balance, and further appeals risk creating a chilling effect on the ICO’s ability to act decisively in protecting data rights.

On tribunal procedure rules and centralised authority, the proposed amendment granting the Lord Chancellor authority to set tribunal procedure rules bypasses the Tribunal Procedure Committee, an independent body designed to ensure that procedural changes are developed with judicial oversight. This move raises concerns about the concentration of power and the erosion of established checks and balances. I am concerned that this is a case of expediency overriding the principles of good governance. While I acknowledge that consultation with the judiciary is included in the amendment, it is not a sufficient substitute for the independent deliberative processes currently in place. The amendment risks undermining the independence of our legal institutions and therefore I have concerns about it.

These amendments overall, while presented as technical fixes, and certainly I recognise the problem and the intent, would have far-reaching consequences for our data protection framework. The vision of my party for governance is one that prioritises stability, legal certainty and the preservation of integrity. We must avoid reforms that, whatever their intent, introduce confusion or inefficiency or undermine public trust in our system. Data protection is, needless to say, a cornerstone of our modern economy and individual rights. As such, any changes to its governance must be approached with the utmost care.

[The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)]

I thank the noble Lord, Lord Clement-Jones, for his Amendments 108, 146 to 153 and 157, and I am grateful for the comments by the noble Lord, Lord Holmes, and the noble Viscount, Lord Camrose.

The effect of this group of amendments would be to make the First-tier Tribunal and the Upper-tier Tribunal responsible for all data protection cases. They would transfer ongoing as well as future cases out of the court system to the relevant tribunals and, as has been alluded to, may cause more confusion in doing so.

As the noble Lord is aware, there is currently a blend of jurisdiction under the data protection legislation for both tribunals and courts according to the nature of the proceedings in question. This is because certain types of cases are appropriate to fall under tribunal jurisdiction while others are more appropriate for court settings. For example, claims by individuals against organisations for breaches of legal requirements can result in awards of compensation for the individuals and financial and reputational damage for the organisations. It is appropriate that such cases are handled by a court in conformance with their strict procedural and evidential rules. Indeed, under the Killock and Delo examples, it was noted that there could be additional confusion in that ability to go between those two possibilities if you went solely to one of the tribunals.

On the transfer of responsibility for making tribunal procedural rules from the Tribunal Procedure Committee to the Lord Chancellor, we think that would be inappropriate. The committee is comprised of legal experts appointed or nominated by senior members of the judiciary or the Lord Chancellor. This committee is best placed to make rules to ensure that tribunals are accessible and fair and that cases are dealt with quickly and efficiently. It keeps the rules under constant review to ensure that they are fit for purpose in line with new appeal rights and the most recent legislative changes.

Amendment 151 would also introduce a statutory appeals procedure for tribunals to determine the merits of decisions made by the Information Commissioner. Data subjects and controllers alike can already challenge the merits of the Information Commissioner’s decisions by way of judicial review in a way that would preserve the discretion and independence of the Information Commissioner’s decision-making, so no statutory procedure is needed. The Government therefore believe that the current jurisdictional framework is well-balanced and equitable, and that it provides effective and practical routes of redress for data subjects and controllers as well as appropriate safeguards to ensure compliance by organisations. For these reasons, I hope the noble Lord will not press his amendments.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his response to my amendments and welcome him to the Dispatch Box and a whole world of pain on the Data (Use and Access) Bill, as he has, no doubt, noted already after just two hours’ worth of this Committee.

I found his response disappointing, and I think both he and the noble Viscount, Lord Camrose, have misunderstood the nature of this situation. This is not a blend, which is all beautifully logical depending on the nature of the case. This is an absolute mishmash where the ordinary litigant is faced with great confusion, not knowing quite often whether to go to the court or a tribunal, where the judges themselves have criticised the confusion and where there appears to be no appetite, for some reason, in government for a review of the jurisdictions.

I felt that the noble Viscount was probably reading from his previous ministerial brief. Perhaps he looked back at Hansard for what he said on the DPDI Bill. It certainly sounded like that. The idea that the courts are peerless in their legal interpretation and the poor old tribunals really just do not know what they are doing is wrong. They are expert tribunals, you can appear before them in person and there are no fees. It is far easier to access a tribunal than a court and certainly, as far as appeals are concerned, the idea that the ordinary punter is going to take judicial review proceedings, which seems to be the implication of staying with the current system on appeals if the merits of the ICO’s decisions are to examined, seems quite breathtaking. I know from legal practice that JR is not cheap. Appearing before a tribunal and using that as an appeal mechanism would seem far preferable.

I will keep on pressing this because it seems to me that at the very least the Government need to examine the situation to have a look at what the real objections are to the jurisdictional confusion and the impact on data subjects who wish to challenge decisions. In the meantime, I beg leave to withdraw the amendment.

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Moved by

[Lord Vallance of Balham]

133: Clause 89, page 112, line 24, at end insert—
“(10) In section 199(2)(a) of the Investigatory Powers Act 2016 (bulk personal datasets: meaning of “personal data”), after “section 82(1) of that Act” insert “by an intelligence service”.”Member’s explanatory statement
Clause 88 of the Bill amends section 82 in Part 4 of the Data Protection Act 2018 (intelligence services processing). This amendment makes a consequential change to a definition in the Investigatory Powers Act 2016 which cross-refers to section 82.

[Lord Vallance of Balham (Lab)]

These four technical government amendments do not, we believe, have a material policy effect but will improve the clarity and operation of the Bill text.

Amendment 133 amends Section 199 of the Investigatory Powers Act 2016, which provides a definition of “personal data” for the purposes of bulk personal datasets. This definition cross-refers to Section 82(1) of the Data Protection Act 2018, which is amended by Clauses 88 and 89 of the Bill, providing for joint processing by the intelligence services and competent authorities. This amendment will retain the effect of that cross-reference to ensure that processing referred to in Section 199 of the IPA remains that done by an intelligence service.

Amendment 136 concerns Clause 92 and ICO codes of practice. Clause 92 establishes a new procedure for panels to consider ICO codes of practice before they are finalised. It includes a regulation-making power for the Secretary of State to disapply or modify that procedure for particular codes or amendments to them. Amendment 136 will enable the power to be used to disapply or modify the panel’s procedure for specific amendments or types of amendments to a code, rather than for all amendments to it.

Finally, Amendments 213 and 214 will allow for changes made to certain immigration legislation and the Online Safety Act 2023 by Clauses 55, 122 and 123 to be extended via existing powers in those Acts, exercisable by Orders in Council, to Guernsey and the Isle of Man, should they seek this.

I beg to move.

[Viscount Camrose (Con)]

My Lords, I will keep my comments brief as these are all technical amendments to the Bill. I understand that Amendments 133 and 136 are necessary for the functioning of the law and therefore have no objection. As for Amendment 213, extending immigration legislation amended by Clause 55 of this Bill to the Bailiwick of Guernsey or the Isle of Man, this is a sensible measure. The same can be said for Amendment 214, which extends the provision of the Online Safety Act 2023, amended by this Bill, to the Bailiwick of Guernsey or the Isle of Man.

[Lord Vallance of Balham (Lab)]

I thank the noble Viscount.

Amendment 133 agreed.