Artificial Intelligence: Regulation

Debate between Lord Vallance of Balham and Viscount Camrose

Monday 10th February 2025 Lords Chamber

[Lord Vallance of Balham (Lab)]

I thank the right reverend Prelate for that important question. Trust is key to all this, and it is why we are committed to maintaining high standards of data protection in whichever context the AI system is deployed. The right reverend Prelate is quite right to raise the question of the NHS, where already AI is being used to read scans, to improve performance in terms of missed appointments and to advance pathology services, many of which are narrow AI uses which are extremely important.

[Viscount Camrose (Con)]

My Lords, in opposition and in government, the party opposite has promised an AI Bill, but it continues to say very little about what it will do. This uncertainty is creating real challenges for AI labs and their customers, as well as for copyright holders and civil society groups. In short, everyone needs to feel more confident about the scope, the timing and the intentions of the Bill. What can the Minister say here and now to reassure us that there is actually a plan?

[Lord Vallance of Balham (Lab)]

As the noble Viscount says, this is an urgent matter. A summit is going on in Paris at the moment discussing many of these issues. We remain committed to bringing forward legislation. We are continuing to refine the proposals and look forward to engaging extensively in due course to ensure that our approach is future-proofed and effective against what is a fast-evolving technology.

Data (Use and Access) Bill [HL]

Debate between Lord Vallance of Balham and Viscount Camrose

3rd reading
Wednesday 5th February 2025 Lords Chamber

[Viscount Camrose (Con)]

My Lords, I thank the Minister for bringing forward this amendment. I too welcome the return of the noble Baroness, Lady Jones, and wish her a speedy end to her recovery.

Most of all, I congratulate the noble Baroness, Lady Kidron, on her successful campaigning to deliver better protections for children during the passage of this Bill. Throughout our consideration of the Bill, we on these Benches have firmly supported stronger protections for children in the Bill, which build on the important and collaborative work done by so many of us in the tech team under the previous Government and this one. Although we had some specific concerns about the drafting of some previous amendments on this topic, we are delighted that the Government have listened to the noble Baroness and brought forward their own amendment, which the noble Baroness is able to support. We firmly agree that children merit specific protection regarding their personal data, as they may be less aware of the risks and consequences of data processing. We support the amendment.

[Lord Vallance of Balham (Lab)]

My Lords, I thank noble Lords who have contributed to this debate. I have noted the points about the left hand and the right hand, and about institutional memory. I echo other noble Lords in their thanks to the noble Baroness, Lady Kidron, for her persistence and insight. I can confirm that we would expect the ICO to update its regulatory action policy to reflect the changes and report against this duty. I will also write to that effect. I am glad that we have reached consensus on this very important matter.

Data (Use and Access) Bill [HL]

Debate between Lord Vallance of Balham and Viscount Camrose

Report stage
Tuesday 28th January 2025 Lords Chamber

[Viscount Camrose (Con)]

My Lords, I thank my noble friend Lord Holmes of Richmond for moving this amendment. I am sure we can all agree that the ICO should encourage and accommodate innovation. As I noted during the first day on Report, in a world where trade and business are ever more reliant on cross-border data transfers, data adequacy becomes ever more important.

In Committee, the noble Baroness, Lady Jones of Whitchurch, was able to give the House the reassurance that this Bill was designed with EU adequacy in mind. We were pleased to hear that the Government’s course of action is not expected to put this at risk. I also suggest that this Bill represents even less of a departure from GDPR than did its predecessor, the DPDI Bill.

We welcome the Government’s assurances, but we look to them to address the issues raised by my noble friend Lord Holmes. I think we can all agree that he has engaged constructively and thoughtfully on this Bill throughout.

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

I thank the noble Lord, Lord Holmes, for his Amendment 38 relating to the ICO’s innovation duty. I agree with his comments about the quality of our regulators.

I reiterate the statements made throughout the Bill debates that the Government are committed to the ongoing independence of the ICO as a regulator and have designed the proposals in the Bill with retaining EU adequacy in mind. The commissioner’s status as an independent supervisory authority for data protection is assured. The Information Commissioner has discretion over the application of his new duties. It will be for him to set out and justify his activities in relation to those duties to Parliament.

To answer the specific point, as well as that raised by the noble Lord, Lord Clement-Jones, considerations of innovations will not come at the expense of the commissioner’s primary objective to secure an appropriate level of protection for personal data. I hope that reassures the noble Lord.

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[Viscount Camrose (Con)]

My Lords, I thank the noble Baroness, Lady Kidron, for moving her amendment. Before I begin, let me declare my interest as a recently appointed director of Lumi, an edtech provider—but for graduates, not for schools.

AI has the potential to revolutionise educational tools, helping teachers spend less time on marking and more time on face-to-face teaching with children, creating more innovative teaching tools and exercises and facilitating more detailed feedback for students. AI presents a real opportunity to improve education outcomes for children, opening more opportunities throughout their lives. There are deeply compelling promises in edtech.

However—there is always a however when we talk about edtech—creating and using AI education tools will require the collection and processing of children’s personal data. This potentially includes special category data—for instance, medical information pertaining to special educational needs such as dyslexia. Therefore, care must be taken in regulating how this data is collected, stored, processed and used. Without this, AI poses a major safeguarding risk. We share the concerns of the noble Baroness, Lady Kidron, and wholeheartedly support the spirit of her amendment.

We agree that it is prudent to require the ICO to make a code of practice on children’s data and education, and I particularly welcome a requirement on the ICO to consult with and involve parents. Parents know their children best, needless to say, and have their best interests at heart; their input will be critical in building trust in AI-assisted educational tools and facilitating their rollout and benefits for children throughout the UK.

However, as I said earlier at Report—and I shall not repeat the arguments now—we have concerns about the incorporation of international law into our law, and specifically, in this instance, the UN Convention on the Rights of the Child. We cannot therefore support the amendment as drafted. That said, we hope very much that the Government will listen carefully to the arguments raised here and take steps to introduce appropriate safeguards for children and young people in our data legislation regime. I suspect that most parents will greatly welcome more reassurance about the use of their children’s data.

[Lord Vallance of Balham (Lab)]

I thank the noble Baroness, Lady Kidron, for raising this important topic today, and thank noble Lords for the impassioned speeches that we have heard. As my noble friend Lady Jones mentioned in Committee, the ICO has been auditing the practices of several edtech service providers and is due to publish its findings later this year. I am pleased to be able to give the noble Baroness, Lady Kidron, a firm commitment today that the Government will use powers under the Data Protection Act 2018 to require the ICO to publish a new code of practice addressing edtech issues.

The noble Baronesses, Lady Kidron and Lady Harding, both raised important points about the specificity, and I will try to address some of those. I am grateful to the noble Baroness for her suggestions about what the code should include. We agree that the starting point for the new code should be that children merit special protection in relation to their personal data because they may be less aware of the risks and their rights in relation to its processing. We agree that the code should include guidance for schools on how to comply with their controller duties in respect of edtech services, and guidance for edtech services on fulfilling their duties under the data protection framework—either as processors, controllers or joint controllers. We also agree that the code should provide practical guidance for organisations on how to comply with their so-called:

“Data protection by design and by default”


duties. This would help to ensure that appropriate technical and organisational measures are implemented in the development and operation of processing activities undertaken by edtech services.

The noble Baroness suggested that the new code should include requirements for the ICO to develop the code in consultation with children, parents, educators, children’s rights advocates, devolved Governments and industry. The commissioner must already consult trade associations, data subjects and persons who appear to the commissioner to represent the interest of data subjects before preparing a code, but these are very helpful suggestions. The development of any new code will also follow the new procedures introduced by Clause 92 of this Bill. The commissioner would be required to convene an expert panel to inform the development of the code and publish the draft code. Organisations and individuals affected by the code would be represented on the panel, and the commissioner would be required to consider its recommendations before publishing the code.

Beyond this, we do not want to pre-determine the outcome of the ICO’s audits by setting out the scope of the code on the face of the Bill now. The audits might uncover new areas where guidance is needed. Ensuring a clear scope for a code, grounded in evidence, will be important. We believe that allowing the ICO to complete its audits, so that the findings can inform the breadth and focus of the code, is appropriate.

The ICO will also need to carefully consider how its codes interrelate. For example, the noble Baroness suggested that the edtech code should cover edtech services that are used independently by children at home and the use of profiling to make predictions about a child’s attainment. Such processing activities may also fall within the scope of the age-appropriate design code and the proposed AI code, respectively. We need to give the ICO the flexibility to prepare guidance for organisations in a way that avoids duplication. Fully understanding the problems uncovered by the ICO audits will be essential to getting the scope and content of each code right and reducing the risk of unintended consequences.

To complement any recommendations that come from the ICO and its audits, the Department for Education will continue to work with educators and parents to help them to make informed choices about the products and services that they choose to support teaching and learning. The noble Baroness’s suggestion that there should be a certification scheme for approved edtech service providers is an interesting one that we will discuss with colleagues in the Department for Education. However, there might be other solutions that could help schools to make safe procurement decisions, and it would not be appropriate to use the ICO code to mandate a specific approach.

The point about schools and the use of work by children is clearly important; our measures are intended to increase the protections for children, not to reduce them. The Government will continue to work closely with noble Lords, the Department for Education, the ICO and the devolved regions as we develop the necessary regulations following the conclusion of the ICO audit. I hope that the noble Baroness is pleased with this commitment and as such feels content to withdraw her amendment.

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[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for moving this incredibly important group and all those speakers who have made the arguments so clearly and powerfully. I pay tribute to noble Baroness’s work on copyright and AI, which is so important for our arts and culture sector. As noble Lords have rightly said, our cultural industries make an enormous contribution to our country, not just in cultural terms but in economic ones, and we must ensure that our laws do not put that future at risk.

In the build-up to this debate I engaged with great pleasure with the noble Baroness, Lady Kidron, and on these Benches we are sympathetic to her arguments. Her Amendment 61 would require the Government to make regulations in this area. We accept the Government’s assurance that this is something they will seek to address, and I note the Minister’s confirmation that their consultation will form the basis of the Government’s approach to this issue. Given the importance of getting this right, our view is that the Government’s consultation is in mid-flight, and we have to allow it to do its work. Whatever view we take of the design and the timing of the consultation, it offers for now a way forward that will evidence some of the serious concerns expressed here. That said, we will take a great interest in the progress and outcomes of the consultation and will come back to this in future should the Government’s approach prove unsatisfactory.

Amendment 75 in my name also seeks to address the challenge that the growth in AI poses to our cultural industries. One of the key challenges in copyright and AI is enforceability. Copyright can be enforced only when we know it has been infringed. The size and the international distribution of AI training models render it extremely challenging to answer two fundamental questions today: first, was a given piece of content used in a training model and secondly, if so, in what jurisdiction did that use take place? If we cannot answer these questions, enforcement can become extremely hard, so a necessary, if not sufficient, part of the solution will be a digital watermark—a means of putting some red dye in the water where copyrighted material is used to train AIs. It could also potentially provide an automated means for content creators to opt out, with a vastly more manageable administrative burden.

I thank the Minister for his constructive engagement on digital watermarking and look to him to give the House an assurance that the Government will bring forward a plan to develop a technological standard for a machine-readable digital watermark. I hope that, if and when he does so, he is able to indicate both a timeline and an intention to engage internationally. Subject to receiving such reassurances when he rises, I shall not move my amendment.

[Lord Vallance of Balham (Lab)]

I congratulate the noble Baroness, Lady Kidron, on her excellent speech. I know that she feels very strongly about this topic and the creative industries, as do I, but I also recognise what she said about junior Ministers. I have heard the many noble Lords who have spoken, and I hope they will forgive me if I do not mention everyone by name.

It is vital that we get this right. We need to give creators better, easier and practical control over their rights, allow appropriate access to training material by AI firms and, most importantly, ensure there is real transparency in the system, something that is currently lacking. We need to do this so that we can guarantee the continued success of our creative industries and fully benefit from what AI will bring.

I want to make it clear, as others have, that these two sectors are not mutually exclusive; it is not a case of picking sides. Many in the creative industries are themselves users or developers of AI technology. We want to ensure that the benefits of this powerful new technology are shared, which was a point made by the noble Baroness, Lady Stowell, and her committee.

It is obvious that these are complex issues. We know that the current situation is unsatisfactory in practice for the creative industries and the AI sector. That is why we have launched a detailed consultation on what package of measures can be developed to benefit both the creative industries and the AI sector. This is a genuine consultation. Many people from a range of sectors are engaging with us to share their views and evidence. It is important, and indeed essential, that we fully consider all responses provided in the consultation before we act. Not to do so would be a disservice to all those who are providing important input and would narrow our chance to get the right solution.

I agree wholeheartedly with the noble Baroness and many other noble Lords, including the noble Lord, Lord Freyberg, on the importance of transparency about the creative content used to train AI. Transparency, about both inputs and outputs, is a key objective in the Government’s consultation on copyright and AI. This very ability to provide transparency is at the centre of what is required. The consultation also contains two other vital objectives alongside transparency: practical and clear control and reward for rights holders over the use of their work. This is quite the opposite of the notion of giving away their hard work or theft. It is about increasing their control and ensuring access to data for AI training.

The Government certainly agree with the spirit of the amendments on transparency and web crawlers and the aims they are trying to achieve—that creators should have more clarity over which web crawlers can access their works and be able to block them if they wish, and that they should be able to know what has been used and by whom and have mechanisms to be appropriately reimbursed. However, it would be premature to commit to very specific solutions at this stage of the consideration of the consultation.

We want to consider these issues more broadly than the amendments before us, which do not take into account the fact that web crawling is not the only way AI models are trained. We also want to ensure that any future measures are not disproportionate for small businesses and individuals. There is a risk that legislating in this way will not be flexible enough to keep pace with rapid developments in the AI sector or new web standards. A key purpose of our consultation is to ensure that we have the full benefit of views on how to approach these issues, so that any legislation will be future-proof and able to deliver concrete and sustainable benefits for the creators. The preferred option in the consultation is one proposal; this is a consultation to try to find the right answer and all the proposals will be considered on their merits.

The Government are also committed to ensuring that rights holders have real control over how their works are used. At the moment, many feel powerless over the use of their works by AI models. Our consultation considers technological and other means that can help to ensure that creators’ wishes are respected in practice. We want to work with industry to develop simple and reliable ways to do this that meet agreed standards, in reference to the point made by the noble Viscount, Lord Camrose.

Technical standards are an important part of this. There are technical standards that will be required to prevent web crawlers accessing certain datasets. Standards will be needed for control at the metadata level and for watermarking. I agree with the noble Viscount, Lord Camrose, that standards on the use of watermarks or metadata could have a number of benefits for those who wish to control or license the use of their content with AI. Standards on the use of web crawlers may also improve the ability of rights holders to prevent the use of their works against their wishes. We will actively support the development of new standards and the application of existing ones. We see this as a key part of what is needed. We do not intend to implement changes in this area until we are confident that they will work in practice and are easy to use.

I also want to stress that our data mining proposals relate only to content that has been lawfully made available, so they will not apply to pirated copies. Existing copyright law will continue to apply to the outputs of AI models, as it does today. People will not be able to use AI as a cover for copyright piracy. With improved transparency and control over inputs, we expect that the likelihood of models generating infringing output will be greatly reduced.

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[Viscount Camrose (Con)]

A review to the end, set out by the noble Lord.

[Lord Vallance of Balham (Lab)]

I thank the noble Lord, Lord Clement-Jones, for Amendment 46. It would require a review of the impact of transferring all data protection-related cases to the relevant tribunals. Currently there is a mixture of jurisdictions for tribunals and courts for data protection cases, depending on the nature of the proceedings. This is on the basis that certain claims are deemed appropriate for tribunal, while others are appropriate for courts, where stricter rules of evidence and procedure apply—for example, in dealing with claims by data subjects against controllers for compensation due to breaches of data protection legislation. As such, the current system already provides clear and appropriate administrative and judicial redress routes for data subjects seeking to exercise their rights.

Tribunals are in many cases the appropriate venue for data protection proceedings, including appeals by controllers against enforcement action or applications by data subjects for an order that the ICO should progress a complaint. Claims by individuals against businesses or other organisations for damages arising from breach of data protection law fall under the jurisdiction of courts rather than tribunals. This is appropriate, given the likely disparity between the resources of the respective parties, because courts apply stricter rules of evidence and procedures than tribunals. While court proceedings can, of course, be more costly, successful parties can usually recover their costs, which would not always be the case in tribunals.

I hope that the noble Lord agrees that there is a rationale for these different routes and that a review to consider transfer of jurisdictions to tribunals is therefore not necessary at this time.

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[Viscount Camrose (Con)]

I thank my noble friend Lord Holmes for tabling the amendment in this group. I, too, believe these amendments would improve the Bill. The nature of computing and data processing has fundamentally changed since the Computer Misuse Act 1990. Third parties hold and process immense quantities of data, and the means of accessing and interacting with that data have become unrecognisably more sophisticated. Updating the definition of unauthorised computer access through Amendment 48 is a sensible reform, as this new definition takes into account that data controllers and processors now hold substantial quantities of personal data. These entities are responsible for the security of the data they hold, so their provisions on access become legally relevant and this amendment reflects this.

When updating an offence, it is equally necessary to consider the legal defences, as my noble friend has rightly done in Amendment 47 by protecting individuals accessing information to detect or prevent a crime or whose actions are in the public interest. We on these Benches feel these amendments are wholly sensible. I urge the Minister to listen to the persuasive argument that my noble friend Lord Holmes has made and consider how we can deliver these improvements to our data legislation.

[Lord Vallance of Balham (Lab)]

I am grateful to the noble Lord, Lord Holmes, for raising this topic through Amendments 47 and 48. I am very aware of this issue and understand the strength of feeling about reforming the Computer Misuse Act, as we have heard from the noble Lord, Lord Arbuthnot, and the noble Earl, Lord Erroll.

As the noble Lord, Lord Clement-Jones, rightly pointed out, when I was the Government Chief Scientific Adviser I conducted a review making recommendations on pro-innovation regulation of technologies and I made recommendations on the issues these amendments raise. These recommendations were accepted by the previous Government.

The Government are actively taking forward these recommendations as part of the Act’s ongoing review. These issues are, of course, complex and require careful consideration. The introduction of these specific amendments could unintentionally pose more risk to the UK’s cybersecurity, not least by inadvertently creating a loophole for cybercriminals to exploit to defend themselves against a prosecution.

Our engagement with stakeholders has revealed differing views, even among industry. While some industry partners highlight the noble Lord’s view that the Computer Misuse Act may prevent legitimate public interest activity, others have concerns about the unintended consequences. Law enforcement has considerable concerns that allowing unauthorised access to systems under the pretext of identifying vulnerabilities could be exploited by cybercriminals. Without robust safeguards and oversight, this amendment could significantly hinder investigations and place a burden on law enforcement partners to establish whether a person’s actions were in the public interest.

Further work is required to consider the safeguards that would need to accompany any introduction of statutory defences. The Government will continue to work with the cybersecurity industry, the National Cyber Security Centre and law enforcement agencies on this issue. The Home Office will provide an update in due course, once the proposals have been finalised—or, in the words of the noble Lord, Lord Clement-Jones, they will pop out of the bowels of the Home Office in due course. With these reassurances in mind, I hope the noble Lord will feel able to withdraw his amendments.

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[Viscount Camrose (Con)]

My Lords, I thank my noble friend Lord Lucas for introducing this group. Amendments 48A and 50A, in his name, would ensure that regulated professionals, including financial services firms, are able to comply with current and future regulatory requirements. The example my noble friend has given—the FCA’s expectation that firms communicate effectively with consumers—is a good one. Clearly, we must avoid a circumstance where regulators expect businesses to take action that is not possible due to limiting legislation governing data use and access. My noble friend has made a forceful case and I hope the Government will be able to give the House appropriate assurance that businesses will not be put in this position as a result of this legislation.

Amendment 48B, in the name of the noble Lord, Lord Clement-Jones, seeks to ban cookie paywalls. I opposed a similar amendment when we debated it in Committee as it actually seeks to curtail choice. Currently, users have the options to pay money and stay private, share personal data and read for free, or walk away. Faced with these options, for instance, I have sadly chosen to forgo my regular evening reading of the Daily Mail’s excellent sports pages, but I see no reason why that newspaper, or anyone else, should be compelled to provide anything for free. In fact, it has been very persuasively argued by Jaron Lanier, Shoshana Zuboff and many others that it is the fact that so much of the internet is apparently, but not actually, free that has caused a great deal of damage, rather than having an open charging model. This approach finally reveals the exact cash value of individuals’ data that websites are harvesting and offers users choice. We do not agree with attempts to remove that choice.

[Lord Vallance of Balham (Lab)]

My Lords, I will start with Amendments 48A and 50A in the name of the noble Lord, Lord Lucas. The Government are aware that some financial services firms have raised concerns that the direct marketing rules in the privacy and electronic communications regulations prevent them supporting consumers in some instances. I appreciate the importance of the support that financial services firms provide to their customers to help them make informed decisions on matters such as their financial investments. The Government and the FCA are working closely together to improve the support available to consumers.

In December, the FCA launched an initial consultation on a new type of support for consumers with their investments and pensions called “targeted support”. Through this consultation, the FCA will seek feedback on any interactions of the proposals and direct marketing rules. As my noble friend Lady Jones explained in the debate in Grand Committee, firms can already provide service or regulatory communication messages to their customers without permission, provided these messages are neutral in tone, factual and do not include promotional content. Promotional content can be sent if a consumer consents to receiving direct marketing. Messages which are not directed to a particular individual, such as online adverts shown to everyone who views a website, are also not prevented by the rules. I hope this explanation and the fact that there is ongoing work provide some reassurance to the noble Lord, Lord Lucas, that the Government are actively looking into this issue, and that, as such, he is content to withdraw his amendment.

Amendment 48B from the noble Lord, Lord Clement-Jones, is aimed at banning cookie paywalls. These generally work by giving web users the option to pay for a cookie-free browsing experience. Many websites are funded by advertising, and some publishers think that people should pay for a viewing experience without personalised advertising. As he rightly pointed out, the ICO released updated guidance on how organisations can deploy “consent or pay” models while still ensuring that consent is “freely given”. The guidance is detailed and outlines important factors that organisations should consider in order to operate legally. We encourage businesses to read this guidance and respond accordingly.

I note the important points that the noble Lord makes, and the counterpoints made by the noble Viscount, Lord Camrose. The Government will continue to engage with businesses, the ICO and users on these models, and on the guidance, but we do not think there is currently a case for taking action to ban the practice. I therefore hope the noble Lord will not press his amendment.

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[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for introducing this group, and the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Erroll, for their comments and contributions—particularly the salutary words of the noble Earl, Lord Erroll, on the role of the Executive here, which were very enlightening.

I agree with the noble Baroness, Lady Kidron, that Parliament should have the opportunity to scrutinise this secondary legislation. Online safety research is essential: as our lives become more and more digital, we must assess how it impacts us as people, and especially children, who are particularly vulnerable to online harms. This cannot be achieved unless researchers are able to access the unadulterated raw data. Therefore, I am sure that noble Lords—and our colleagues in the other place—would wish to scrutinise the legislation creating this access to ensure it is fit for purpose. This is why I support the spirit of Amendment 51.

Following on from this point, facilitating online harms research by making access requests enforceable under a pre-existing online safety regime, as per Amendment 52, certainly seems to me like a sensible measure. It would enable this vital research, as would Amendment 54, which removes the need to create a bespoke enforcement system for online safety research access.

Amendment 53 would also enable independent research into how online risks and harms impact different groups. This information would be extremely valuable to a broad range of stakeholders including social media platforms, data controllers, schools and parents and parliamentarians. It would help us all identify groups who are at heightened risk of online harm, what type of harm they are at risk of, which measures have reduced this risk, which have exacerbated it and what we can all do to reduce this danger.

There are many people undertaking online safety research across the globe and we should look to help these researchers access data for the purposes of safety research, even if their location is outside the UK. Of course, adequate safeguards would need to be in place, which may be dictated to some extent by the location of the researcher. However, online safety research is a benefit for all of us and Amendment 55 would keep barriers to this research to a minimum.

I am sure we would all like to think that all data holders and processors would wish to assist with prevention of online harms. However, where commercial and moral imperatives compete, we sadly cannot always count on the latter winning out. Therefore, Amendment 56 is a sensible addition that would prevent contractual exclusion of research access on online safety grounds, ensuring that online safety risks cannot be hidden or obscured.

[Lord Vallance of Balham (Lab)]

I thank the noble Baroness, Lady Kidron, for the amendments on researchers’ access to data for online safety research, an incredibly important topic. It is clear from Committee that the Government’s proposals in this clause are broadly welcomed. They will ensure that researchers can access the vital data they need to undertake an analysis of online safety risks to UK users, informing future online safety interventions and keeping people safe online.

Amendment 51 would compel the Secretary of State to make regulations for a researcher access framework, and to do so within 12 months. While I am sympathetic to the spirit of the noble Baroness’s amendment, a fixed 12-month timescale and requirement to make regulations may risk compressing the time and options available to develop the most effective and appropriate solution, as my noble friend Lady Jones outlined in Committee. Getting this right is clearly important. While we are committed to introducing a framework as quickly as possible, we do not want to compromise its quality. We need adequate time to ensure that the framework is fit for purpose, appropriately safeguarded and future-proofed for a fast-evolving technological environment.

As required by the Online Safety Act, Ofcom is currently preparing a report into the ways in which researchers can access data and the barriers that they face, as well as exploring how additional access might be achieved. This report will be published in July of this year. We are also committed to conducting a thorough consultation on the issue prior to any enforceable requirements coming into force. The Government intend to consult on the framework as soon as practicable after the publication of Ofcom’s report this summer.

Sufficient time is required for a thorough consultation with the wide range of interested stakeholders in this area, including the research community, civil society and industry. I know that the noble Baroness raised a concern in Committee that the Government would rely on Ofcom’s report to set the framework for the regime, but I can assure her that a robust evidence-gathering process is already under way. The framework will be informed by collaboration with key stakeholders and formal consultation, as well as being guided by evidence from Ofcom’s report on the matter. Once all interested parties have had their say and the consultation is completed, the Government expect to make regulations to install the framework. It is right that the Government commit to a full consultation process and do not seek to prejudge the outcomes of that process by including a mandatory requirement for regulations now.

Amendment 53 would seek to expand the list of examples of the types of provision that the regulations might make. Clause 123 gives non-exhaustive examples of what may be included in future regulations; it certainly does not limit those regulations to the examples given. Given the central importance of protecting children and vulnerable users online, a key aim of any future regulations would be to support researchers to conduct research into the different ways that various groups of people experience online safety, without the need for this amendment. Indeed, a significant driving force for establishing this framework in the first place is to improve the quality of research that is possible to understand the risks to users online, particularly those faced by children. I acknowledge the point that the noble Baroness made about people of all ages. We would be keen to discuss this further with her as we consult on specific requirements as part of developing regulations.

I will touch on the point about legal privilege. We believe that routinely copying a lawyer on to all emails and documents is not likely to attract legal privilege. Legal privilege protects communication specifically between legal advisers and their clients being created for the purpose of giving or receiving legal advice, or for the sole or dominant purpose of litigation. It would not be satisfactory just to copy everyone on everything.

We are confident that we can draft regulations that will make it entirely clear that the legal right to data for research purposes cannot be avoided by tech companies seeking to rely on contractual provisions that purport to prevent the sharing of data for research purposes. Therefore, there is no need for a specific requirement in the Bill to override a terms of service.

Data (Use and Access) Bill [HL]

Debate between Lord Vallance of Balham and Viscount Camrose

Report stage
Tuesday 28th January 2025 Lords Chamber

[Viscount Camrose (Con)]

My Lords, I thank the noble Lord, Lord Bassam of Brighton, for laying this amendment and introducing the debate on it.

As I understand it, a private copying levy is a surcharge on the price of digital content. The idea is that the money raised from the surcharge is either redistributed directly to rights holders to compensate them for any loss suffered because of copies made under the private copying exceptions or contributed straight to other cultural events. I recognise what the noble Lord is seeking to achieve and very much support his intent.

I have two concerns. First—it may be that I have misunderstood it; if so, I would be grateful if the noble Lord would set me straight—it sounds very much like a new tax of some kind is being raised, albeit a very small one. Secondly, those who legitimately pay for digital content end up paying twice. Does this not incentivise more illegal copying?

We all agree how vital it is for those who create products of the mind to be fairly rewarded and incentivised for doing so. We are all concerned by the erosion of copyright or IP caused by both a global internet and increasingly sophisticated AI. Perhaps I could modestly refer the noble Lord to my Amendment 75 on digital watermarking, which I suggest may be a more proportionate means of achieving the same end or at least paving the way towards it. For now, we are unable to support Amendment 57 as drafted.

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

I thank my noble friend Lord Bassam for his Amendment 57 on the subject of private copying levies. It reinforces a point we discussed earlier about copying being covered by copyright.

The smart fund campaign seeks the introduction of a private copy levy. Such a levy would aim to indirectly compensate copyright owners for the unauthorised private copying of their works—for example, when a person takes a photo of an artwork or makes a copy of a CD—by paying copyright owners when devices capable of making private copies are sold.

Noble Lords may be aware that, in April 2024, the Culture, Media and Sport Committee recommended that the Government introduce a private copying levy similar to that proposed by this amendment. The Government’s response to that recommendation, published on 1 November, committed the Intellectual Property Office to meet with representatives from the creative industries to discuss how to strengthen the evidence base on this issue. That process is under way. I know that a meeting with the smart fund group is planned for next week, and I can confirm that DCMS is included and invited. I know that the IPO would be glad to meet my noble friend, as well as the noble Lord, Lord Freyberg, and the noble Earl, Lord Clancarty, to discuss this further. I also absolutely assure him that Chris Bryant is aware of this important issue and will be following this.

I am sure my noble friend will agree that it is essential that we properly engage and consider the case for intervention before legislating. Therefore, I hope he will be content to withdraw his amendment, to allow the Government the opportunity to properly explore these issues with creative and tech industry stakeholders.

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[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for moving her amendment. The amendments in this group seek to establish a new status for data held in the public interest, and to establish statutory oversight rules for a national data library. I was pleased during Committee to hear confirmation from the noble Baroness, Lady Jones of Whitchurch, that the Government are actively developing their policy on data held in the public interest and developing plans to use our data assets in a trustworthy and ethical way.

We of course agree that we need to get this policy right, and I understand the Government’s desire to continue their policy development. Given that this is an ongoing process, it would be helpful if the Government could give the House an indication of timescales. Can the Minister say when the Government will be in a position to update the House on any plans to introduce a new approach to data held in the public interest? Will the Government bring a statement to this House when plans for a national data library proceed to the next stage?

I suggest that a great deal of public concern about nationally held datasets is a result of uncertainty. The Minister was kind enough to arrange a briefing from his officials yesterday, and this emerged very strongly. There is a great deal of uncertainty about what is being proposed. What are the mechanics? What are the risks? What are the costs? What are the eventual benefits to UK plc? I urge the Minister, as and when he makes such a statement, to bring a maximum of clarity about these fundamental questions, because I suspect that many people in the public will find this deeply reassuring.

Given the stage the Government are at with these plans, we do not think it would be appropriate to legislate at this stage, but we of course reserve the right to revisit this issue in the future.

[Lord Vallance of Balham (Lab)]

I am grateful to the noble Baroness, Lady Kidron, and the noble Lord, Lord Tarassenko, for Amendments 58 and 71, one of which we also considered in Committee. I suspect that we are about to enter an area of broad agreement here. This is a very active policy area, and noble Lords are of course asking exactly the right questions of us. They are right to emphasise the need for speed.

I agree that it is essential that we ensure that legal and policy frameworks are fit for purpose for the modern demands and uses of data. This Government have been clear that they want to maximise the societal benefits from public sector data assets. I said in the House very recently that we need to ensure good data collection, high-quality curation and security, interoperability and ways of valuing data that secure appropriate value returns to the public sector.

On Amendment 58, my officials are considering how we approach the increased demand and opportunity of data, not just public sector data but data across our economy. This is so that we can benefit from the productivity and growth gains of improvements to access to data, and harness the opportunities, which are often greater when different datasets are combined. As part of this, we sought public views on this area as part of the industrial strategy consultation last year. We are examining our current approach to data licensing, data valuation and the legal framework that governs data sharing in the public sector.

Given the complexity, we need to do this in a considered manner, but we of course need to move quickly. Crucially, we must not betray the trust of people or the trust of those responsible for managing and safeguarding these precious data assets. From my time as chair of the Natural History Museum, I am aware that museums and galleries are considering approaches to this very carefully. The noble Lord, Lord Lucas, may well be interested to see some of the work going on on biodiversity datasets there, where there are huge collections of great value that we actually did put value against.

Of course, this issue cuts across the public sector, including colleagues from the Geospatial Commission, NHS, DHSC, National Archives, Department for Education, Ordnance Survey and Met Office, for example. My officials and I are very open to discussing the policy issues with noble Lords. I recently introduced the noble Lord, Lord Tarassenko, to officials from NHSE dealing with the data side of things there and linked him with the national data library to seek his input. As was referred to, yesterday, the noble Baroness, Lady Kidron, the noble Lords, Lord Clement-Jones, Lord Tarassenko and Lord Stevenson, and the noble Viscount, Lord Camrose, all met officials, and we remain open to continuing such in-depth conversations. I hope the noble Baroness appreciates that this is an area with active policy development and a key priority for the Government.

Turning to Amendment 71, also from the noble Baroness, I agree that the national data library represents an enormous opportunity for the United Kingdom to unlock the full value of our public data. I agree that the protection and care of our national data is essential. The scope of the national data library is not yet finalised, so it is not possible to confirm whether a new statutory body or specific statutory functions are the right way to do this. Our approach to the national data library will be guided by the principles of public law and the requirements of the UK’s data protection legislation, including the data protection principles and data subject rights. This will ensure that data sharing is fair, secure and preserves privacy. It will also ensure that we have clear mechanisms for both valuation and value capture. We have already sought, and continue to seek, advice from experts on these issues, including work from the independent Prime Minister’s Council for Science and Technology. The noble Lord, Lord Freyberg, also referred to the work that I was involved with previously at the Tony Blair Institute.

The NDL is still in the early stages of development. Establishing it on a statutory footing at this point would be inappropriate, as work on its design is currently under way. We will engage and consult with a broad range of stakeholders on the national data library in due course, including Members of both Houses.

The Government recognise that our data and its underpinning infrastructure is a strategic national asset. Indeed, it is for that reason that we started by designating the data centres as critical national infrastructure. As the subjects of these amendments remain an active area of policy development, I ask the noble Baroness to withdraw her amendment.

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[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for her amendments. The reliability of computer-based evidence, needless to say, has come into powerful public focus following the Post Office Horizon scandal and the postmasters’ subsequent fight for justice. As the noble Baroness has said previously and indeed tonight, this goes far beyond the Horizon scandal. We accept that there is an issue with the way in which the presumption that computer evidence is reliable is applied in legal proceedings.

The Government accepted in Committee that this is an issue. While we have concerns about the way that the noble Baroness’s amendment is drafted, we hope the Minister will take the opportunity today to set out clearly the work that the Government are doing in this area. In particular, we welcome the Government’s recently opened call for evidence, and we hope Ministers will work quickly to address this issue.

[Lord Vallance of Balham (Lab)]

Amendment 68 from the noble Baroness, Lady Kidron, aims to prevent future miscarriages of justice, such as the appalling Horizon scandal. I thank the noble Baroness and, of course, the noble Lord, Lord Arbuthnot, for the commitment to ensuring that this important issue is debated. The Government absolutely recognise that the law in this area needs to be reviewed. Noble Lords will of course be aware that any changes to the legal position would have significant ramifications for the whole justice system and are well beyond the scope of this Bill.

I am glad to be able to update the noble Baroness on this topic since Committee. On 21 January the Ministry of Justice launched a call for evidence on this subject. That will close on 15 April, and next steps will be set out immediately afterwards. That will ensure that any changes to the law are informed by expert evidence. I take the point that there is a lot of evidence already available, but input is also needed to address the concerns of the Serious Fraud Office and the Crown Prosecution Service, and I am sure they will consider the important issues raised in this amendment.

I hope the noble Baroness appreciates the steps that the Ministry of Justice has taken on this issue. The MoJ will certainly be willing to meet any noble Lords that wish to do so. As such, I hope she feels content to withdraw the amendment.

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[Viscount Camrose (Con)]

My Lords, I move Amendment 73 standing in my name which would require the Secretary of State to undertake a risk assessment on the data privacy risks associated with genomics and DNA companies that are headquartered in countries which the Government determine to be systemic competitors and hostile actors. The UK is a world leader in genomics research, and this a growing sector that makes an important contribution. The opportunities in genomics are enormous and we should take the steps needed to protect the UK’s leading role here.

I was pleased to hear from the noble Baroness, Lady Jones of Whitchurch, in Committee that:

“the Government have continued the important work of the UK Biological Security Strategy of 2023, including by conducting a full risk assessment and providing updated guidance to reduce the risks from the misuse of sensitive data”.

The Minister also gave the undertaking that the Government would

“brief the Joint Committee on the National Security Strategy on the findings of the risk assessment in the new year”.—[Official Report, 18/12/24; col. GC 124.]

I would be very grateful if the Minister could confirm whether the Joint Committee has been briefed and, if not, when that will happen.

I look forward to continuing to engage with Ministers on the issue of data security in the face of growing threats from international competitors and hostile actors.

[Lord Vallance of Balham (Lab)]

I thank the noble Viscount, Lord Camrose, for giving me an opportunity to speak for 45 minutes on genomics, which I know everyone will be very grateful for. I shall resist that temptation and thank him for the amendment on security in genomic data.

As he is aware, the UK is a world leader in genomics, and its various datasets and studies have contributed to health globally. I also note that the UK Biological Security Strategy of 2023 has been endorsed by this Government and a variety of measures are under active consideration. I recognise the noble Viscount’s desire for quick movement on the issue and agree with him that this is of great importance. I reassure him that my officials are working at speed across government on this very issue. I would be very happy to brief him and other noble Lords present today on the findings of the risk assessment in due course. We have not yet engaged with the Joint Committee on National Security Strategy but will do shortly as per standard practice.

I hope that the noble Viscount will appreciate that this work is live and will grant a little patience on this issue. I look forward to engaging with him soon on this but, in the meantime, I would be grateful if he would withdraw his amendment.

[Viscount Camrose (Con)]

I thank the Minister for his clear response and for taking pity on the House and not giving us the full benefit of his knowledge of genomics. Meanwhile, I recognise that we have to move with deliberateness here and not rush into the wrong solution. I gratefully accept his offer of further briefings and beg leave to withdraw my amendment.

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[Viscount Camrose (Con)]

It is indeed getting late. I thank the noble Lord, Lord Clement-Jones, for moving his amendment, and I really will be brief.

We do not oppose the government amendment in the name of the noble Lord, Lord Vallance. I think the Minister should be able to address the concerns raised by the noble Lord, Lord Clement-Jones, given that the noble Lord’s amendment merely seeks clarification on the retrospective application of the provisions of the Bill within a month of the coming into force of the Act. It seems that the Government could make this change unnecessary by clarifying the position today. I hope the Minister will be able to address this in his remarks.

[Lord Vallance of Balham (Lab)]

I will speak first to Amendment 76. I reassure noble Lords that the Government do not believe that this amendment has a material policy effect. Instead, it simply corrects the drafting of the Bill and ensures that an interpretation provision in Clause 66 commences on Royal Assent.

Amendment 74, in the name of the noble Lord, Lord Clement Jones, would require the Secretary of State to publish a statement setting out whether any provisions in the Bill apply to controllers and processers retrospectively. Generally, provisions in Bills apply from the date of commencement unless there are strong policy or legal reasons for applying them retrospectively. The provisions in this Bill follow that general rule. For instance, data controllers will only be able to rely on the new lawful ground of recognised legitimate interests introduced by Clause 70 in respect of new processing activities in relation to personal data that take place after the date of commencement.

I recognise that noble Lords might have questions as to whether any of the Bill’s clauses can apply to personal data that is already held. That is the natural intent in some areas and, where appropriate, commencement regulations will provide further clarity. The Government intend to publish their plans for commencement on GOV.UK in due course and the ICO will also be updating its regulatory guidance in several key areas to help organisations prepare. We recognise that there can be complex lifecycles around the use of personal data and we will aim to ensure that how and when any new provisions can be relied on is made clear as part of the implementation process.

I hope that explanation goes some way to reassuring the noble Lord and that he will agree to withdraw his amendment.

Data (Use and Access) Bill [HL]

Debate between Lord Vallance of Balham and Viscount Camrose

Report stage
Tuesday 21st January 2025 Lords Chamber

[Viscount Camrose (Con)]

I start by thanking the noble Baroness, Lady Kidron, for introducing this group. I will speak particularly to the amendment in my name but before I do so, I want to say how much I agree with the noble Baroness and with the noble Lord, Lord Clement-Jones, that it is a matter of regret that we are not simultaneously looking at an AI Bill. I worry that this Bill has to take a lot of the weight that an AI Bill would otherwise take, but we will come to that in a great deal more detail in later groups.

I will address the two amendments in this group in reverse order. Amendment 5 in my name and that of my noble friend Lord Markham would remove Clause 13, which makes provision for the Secretary of State or the Treasury to give financial assistance to decision-makers and enforcers—that is, in essence, to act as a financial backstop. While I appreciate the necessity of guaranteeing the stability of enforcers who are public authorities and therefore branches of state, I am concerned that this has been extended to decision-makers. The Bill does not make the identity of a decision-maker clear. Therefore, I wonder who exactly we are protecting here. Unless those individuals or bodies or organisations can be clearly defined, how can we know whether we should extend financial assistance to them?

I raised these concerns in Committee and the Minister assured us at that time that smart data schemes should be self-financing through fees and levies as set out in Clauses 11 and 12 and that this provision is therefore a back-up plan. If that is indeed the case and we are assured of the self-funding nature of smart data schemes, then what exactly makes this necessary? Why must the statutory spending authority act as a backstop if we do not believe there is a risk it will be needed? If we do think there is such a risk, can the Minister elaborate on what it is?

I turn now to the amendment tabled by the noble Baroness, Lady Kidron, which would require data traders to supply customers with information that has been used by AI to build a profile on them. While transparency and explainability are hugely important, I worry that the mechanism proposed here will be too burdensome. The burden would grow linearly with the scale of the models used. Collating and supplying this information would, I fear, increase the cost of doing business for traders. Given AI’s potential to be an immense asset to business, helping generate billions of pounds for the UK economy—and, by the way, I rather approve of the boosterish tone and think we should strive for a great deal more growth in the economy—we should not seek to make its use more administratively burdensome for business. Furthermore, since the information is AI-generated, it is going to be a guess or an assumption or an inference. Therefore, should we require companies to disclose not just the input data but the intermediate and final outputs? Speaking as a consumer, I am not sure that I personally would welcome this. I look forward to hearing the Minister’s responses.

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

I thank the noble Baroness, Lady Kidron, and the noble Viscount, Lord Camrose, for their proposed amendments and continued interest in Part 1 of this Bill. I hope I can reassure the noble Baroness that the definition of customer data is purposefully broad. It encompasses information relating to a customer or a trader and the Government consider that this would indeed include inferred data. The specific data to be disclosed under a smart data scheme will be determined in the context of that scheme and I reassure the noble Baroness that there will be appropriate consultation before a smart data scheme is introduced.

I turn to Amendment 5. Clause 13 provides statutory authority for the Secretary of State or the Treasury to give financial assistance to decision-makers, enforcers and others for the purpose of meeting any expense in the exercise of their functions in the smart data schemes. Existing and trusted bodies such as sector regulators will likely be in the lead of the delivery of new schemes. These bodies will act as decision-makers and enforcers. It is intended that smart data schemes will be self-financing through the fees and levies produced by Clauses 11 and 12. However, because of the nature of the bodies that are involved, it is deemed appropriate for there to be a statutory spending authority as a backstop provision if that is necessary. Any spending commitment of resources will, of course, be subject to the usual estimates process and to existing public sector spending controls and transparency requirements.

I hope that with this brief explanation of the types of bodies involved, and the other explanations, the noble Baroness will be content to withdraw Amendment 1 and that noble Lords will not press Amendment 5.

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[Viscount Camrose (Con)]

I thank my noble friend Lord Lucas for introducing this group and for bringing these important and sometimes very difficult matters to the attention of the House. I will address the amendments slightly out of order, if I may.

For digital verification services to work, the information they have access to and use to verify documents must be accurate; this is, needless to say, critical to the success of the entire scheme. Therefore, it is highly sensible for Amendment 8 to require public authorities, when they disclose information via the information gateway, to ensure that it is accurate and reliable and that they can prove it. By the same measure, Amendment 6, which requires the Secretary of State to assess whether the public authorities listed are collecting accurate information, is equally sensible. These amendments as a pair will ensure the reliability of DVS services and encourage the industry to flourish.

I would like to consider the nature of accurate information, especially regarding an individual’s biological sex. It is possible for an individual to change their recorded sex on their driving licence or passport, for example, without going through the process of obtaining a gender recognition certificate. Indeed, a person can change the sex on their birth certificate if they obtain a GRC, but many would argue that changing some words on a document does not change the reality of a person’s genome, physical presentation and, in some cases, medical needs, meaning that the information recorded does not accurately relate to their sex. I urge the Minister to consider how best to navigate this situation, and to acknowledge that it is crucially important, as we have heard so persuasively from the noble Earl, Lord Errol, and my noble friends Lord Arbuthnot and Lord Lucas, that a person’s sex is recorded accurately to facilitate a fully functioning DVS system.

The DVS trust framework has the potential to rapidly transform the way identities and information are verified. It should standardise digital verification services, ensure reliability and build trust in the concept of a digital verification service. It could seriously improve existing, cumbersome methods of verifying information, saving companies, employers, employees, landlords and tenants time and money. Personally, I have high hopes of its potential to revolutionise the practices of recruitment. I certainly do not know many people who would say no to less admin. If noble Lords are minded to test the opinion of the House, we will certainly support them with respect to Amendments 6 and 8.

With the greatest respect to the noble Lord, Lord Clement-Jones, I think it is a mistake to regard this as part of some culture war struggle. As I understand it, this is about accuracy of data and the importance, for medical and other reasons, of maintaining accurate data.

All the benefits of DVS cannot be to the detriment of data privacy and data minimisation. Parliament is well-practised at balancing multiple competing concepts and doing so with due regard to public opinion. Therefore, Amendment 7 is indeed a sensible idea.

Finally, Amendment 9 would require the Secretary of State to review whether an offence of false use of identity documents created or verified by a DVS provider is needed. This is certainly worth consideration. I have no doubt that the Secretary of State will require DVS providers to take care that their services are not being used with criminal intent, and I am quite sure that DVS service providers do not want to facilitate crimes. However, the history of technology is surely one of high-minded purposes corrupted by cynical practices. Therefore, it seems prudent for the Secretary of State to conduct a review into whether creating this offence is necessary and, if it is, the best way that it can be laid out in law. I look forward to hearing the Minister’s comments on this and other matters.

[Lord Vallance of Balham (Lab)]

I thank the noble Lords, Lord Clement-Jones, Lord Lucas and Lord Arbuthnot, for their amendments and interest in the important area of digital verification services. I thank the noble Viscount, Lord Camrose, for his support for this being such an important thing to make life easier for people.

I will go in reverse order and start with Amendment 9. I thank the noble Lord, Lord Clement-Jones, for reconsidering his stance since Committee on the outright creation of these offences. Amendment 9 would create an obligation for the Secretary of State to review the need for digital identity theft offences. We believe this would be unnecessary, as existing legislation—for example, the Fraud Act 2006, the Computer Misuse Act 1990 and the Data Protection Act 2018—already addresses the behaviour targeted by this amendment.

However, we note the concerns raised and confirm that the Government are taking steps to tackle the issue. First, the Action Fraud service, which allows individuals to report fraud enabled by identity theft, is being upgraded with improved reporting tools, increased intelligence flows to police forces and better support services for victims. Secondly, the Home Office is reviewing the training offered to police officers who have to respond to fraud incidents, and identifying the improvements needed.

Data (Use and Access) Bill [HL]

Debate between Lord Vallance of Balham and Viscount Camrose

Report stage
Tuesday 21st January 2025 Lords Chamber

[Viscount Camrose (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for raising these significant issues. While I share some of the concerns expressed, I find myself unable—at least for the moment—to offer support for the amendments in their current form.

Amendment 17 seeks to remove the powers granted to the Secretary of State to override primary legislation and to modify aspects of UK data protection law via statutory instrument. I agree with the principle underpinning this amendment: that any changes to data protection law must be subject to appropriate scrutiny. It is essential that parliamentary oversight remains robust and meaningful, particularly when it comes to matters as sensitive and far-reaching as data protection.

However, my hesitation lies in the practical implications of the amendment. While I sympathise with the call for greater transparency, I would welcome more detail on how this oversight mechanism might work in practice. Would it involve enhanced scrutiny procedures or a stronger role for relevant parliamentary committees? I fear that, without this clarity, we risk creating uncertainty in an area that requires, above all, precision and confidence.

The Minister’s Amendment 18 inserts specific protections for children’s personal data into the UK GDPR framework. The Government have rightly emphasised the importance of safeguarding children in the digital age. I commend the intention behind the amendment and agree wholeheartedly that children deserve special protections when it comes to the processing of their personal data.

It is worth noting that this is a government amendment to their own Bill. While Governments amending their own legislation is not unprecedented—the previous Government may have indulged in the practice from time to time—it is a practice that can give rise to questions. I will leave my comments there; obviously it is not ideal, but these things happen.

Finally, Amendment 21, also tabled by the noble Lord, Lord Clement-Jones, mirrors Amendment 17 in seeking to curtail the Secretary of State’s powers to amend primary legislation via statutory instrument. My earlier comments on the importance of parliamentary oversight apply here. As with Amendment 17, I am of course supportive of the principle. The delegation of such significant powers to the Executive should not proceed without robust scrutiny. However, I would appreciate greater clarity on how this proposed mechanism would function in practice. As it stands, I fear that the amendment raises too many questions. If these concerns could be addressed, I would be most grateful.

In conclusion, these amendments raise important points about the balance of power between the Executive and Parliament, as well as the protection of vulnerable individuals in the digital sphere. I look forward to hearing more detail and clarity, so that we can move forward with confidence.

[Lord Vallance of Balham (Lab)]

My Lords, government Amendment 18 is similar to government Amendment 40 in the previous group, which added an express reference to children meriting specific protection to the new ICO duty. This amendment will give further emphasis to the need for the Secretary of State to consider the fact that children merit specific protection when deciding whether to use powers to amend the list of recognised legitimate interests.

Turning to Amendment 17 from the noble Lord, Lord Clement-Jones, I understand the concerns that have been raised about the Secretary of State’s power to add or vary the list of recognised legitimate interests. This amendment seeks to remove the power from the Bill.

In response to some of the earlier comments, including from the committees, I want to make it clear that we have constrained these powers more tightly than they were in the previous data Bill. Before making any changes, the Secretary of State must consider the rights and freedoms of individuals, paying particular attention to children, who may be less aware of the risks associated with data processing. Furthermore, any addition to the list must meet strict criteria, ensuring that it serves a clear and necessary public interest objective as described in Article 23.1 of the UK GDPR.

The Secretary of State is required to consult the Information Commissioner and other stakeholders before making any changes, and any regulations must then undergo the affirmative resolution procedure, guaranteeing parliamentary scrutiny through debates in both Houses. Retaining this regulation-making power would allow the Government to respond quickly if future public interest activities are identified that should be added to the list of recognised legitimate interests. However, the robust safeguards and limitations in Clause 70 will ensure that these powers are used both sparingly and responsibly.

I turn now to Amendment 21. As was set out in Committee, there is already a relevant power in the current Data Protection Act to provide exceptions. We are relocating the existing exemptions, so the current power, so far as it relates to the purpose limitation principle, will no longer be relevant. The power in Clause 71 is intended to take its place. In seeking to reassure noble Lords, I want to reiterate that the power cannot be used for purposes other than the public interest objectives listed in Article 23.1 of the UK GDPR. It is vital that the Government can act quickly to ensure that public interest processing is not blocked. If an exemption is misused, the power will also ensure that action can be swiftly taken to protect data subjects by placing extra safeguards or limitations on it.

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[Lord Vallance of Balham (Lab)]

There is a requirement. Going back to the issue of principles, which was discussed earlier on, one of the existing principles—which I am now trying to locate and cannot—is transparency. I expect that we would make as much of the information public as we can in order to ensure good decision-making and assure people as to how the decisions have been reached.

[Viscount Camrose (Con)]

I thank all noble Lords and the Minister for their comments and contributions to what has been a fascinating debate. I will start by commenting on the other amendments in this group before turning to those in my name.

First, on Amendments 28 and 29, I am rather more comfortable with the arrangements for meaningful human intervention set out in the Bill than the noble Lord, Lord Clement-Jones. For me, either a decision has meaningful human intervention or it does not. In the latter case, certain additional rights kick in. To me, that binary model is clear and straightforward, and could only be damaged by introducing some of the more analogue concepts such as “predominantly”, “principally”, “mainly” or “wholly”, so I am perfectly comfortable with that as it is.

However, I recognise that puts a lot of weight on to the precise meaning of “meaningful human involvement”. Amendment 36 in the name of the noble Lord, Lord Clement-Jones, which would require the Secretary of State to produce a definition of “meaningful human involvement” in ADM in collaboration with the ICO, seems to take on some value in those circumstances, so I am certainly more supportive of that one.

As for Amendments 34 and 35 in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Freeman, I absolutely recognise the value and potential of efficacy; I agree it is a very valuable term. I have more faith in the rollout and use of the ATRS but on a non-statutory basis, believing, as I do, that this would allow it to continue to develop in an agile and adaptive manner. I welcome the Minister’s words on this subject, and for now I remain comfortable that the ATRS is the direction forward for that.

I turn to the amendments in my name. I thank all noble Lords and, indeed, the Minister for their comments and contributions regarding Amendments 31 and 32. I very much take the Minister’s point that definitions of consent feature elsewhere in the Bill. That reduces my concern somewhat.

However, I continue to strongly commend Amendment 26 to the House. I believe it will foster innovation while protecting data rights. It is popular with the public and with private sector stakeholders. It will bring about outcomes that we all want to see in AI safety without stifling this new and exciting technology. In the absence of an AI Bill—and possibly even in the presence of one—it is the only AI-specific legislation that will be around. It is important somehow to get those AI principles in the Bill, at least until an AI Bill comes along. With this in mind, I wish to test the opinion of the House.

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[Viscount Camrose (Con)]

My Lords, Amendment 41 aims to establish a code of practice for the use of children’s data in the development of AI technologies. In the face of rapidly advancing AI, it is, of course, crucial that we ensure children’s data is handled with the utmost care, prioritising their best interests and fundamental rights. We agree that AI systems that are likely to impact children should be designed to be safe and ethical by default. This code of practice will be instrumental in guiding data controllers to ensure that AI development and deployment reflect the specific needs and vulnerabilities of children.

However, although we support the intent behind the amendment, we have concerns, which echo concerns on amendments in a previous group, about the explicit reference to the UN Convention on the Rights of the Child and general comment 25. I will not rehearse my comments from earlier groups, except to say that it is so important that we do not have these explicit links to international frameworks, important as they are, in UK legislation.

In the light of this, although we firmly support the overall aim of safeguarding children’s data in AI, we believe this can be achieved more effectively by focusing on UK legal principles and ensuring that the code of practice is rooted in our domestic context.

[Lord Vallance of Balham (Lab)]

I thank the noble Lord, Lord Clement-Jones, for Amendment 33, and the noble Baroness, Lady Kidron, for Amendment 41, and for their thoughtful comments on AI and automated decision-making throughout this Bill’s passage.

The Government have carefully considered these issues and agree that there is a need for greater guidance. I am pleased to say that we are committing to use our powers under the Data Protection Act to require the ICO to produce a code of practice on AI and solely automated decision-making through secondary legislation. This code will support controllers in complying with their data protection obligations through practical guidance. I reiterate that the Government are committed to this work as an early priority, following the Bill receiving Royal Assent. The secondary legislation will have to be approved by both Houses of Parliament, which means it will be scrutinised by Peers and parliamentarians.

I can also reassure the noble Baroness that the code of practice will include guidance about protecting data subjects, including children. The new ICO duties set out in the Bill will ensure that where children’s interests are relevant to any activity the ICO is carrying out, it should consider the specific protection of children. This includes when preparing codes of practice, such as the one the Government are committing to in this area.

I understand that noble Lords will be keen to discuss the specific contents of the code. The ICO, as the independent data protection regulator, will have views as to the scope of the code and the topics it should cover. We should allow it time to develop those thoughts. The Government are also committed to engaging with noble Lords and other stakeholders after Royal Assent to make sure that we get this right. I hope noble Lords will agree that working closely together to prepare the secondary legislation to request this code is the right approach instead of pre-empting the exact scope.

The noble Lord, Lord Clement-Jones, mentioned edtech. I should add—I am getting into a habit now—that it is discussed in a future group.

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[Viscount Camrose (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones—as ever—and the noble and learned Lord, Lord Thomas, for tabling Amendment 37 in their names. It would introduce a new clause that would require the Secretary of State to carry out an impact assessment of this Act and other changes to the UK’s domestic and international frameworks relating to data adequacy before the European Union’s reassessment of data adequacy in June this year.

I completely understand the concerns behind tabling this amendment. In the very worst-case scenario, of a complete loss of data adequacy in the assessment by the EU, the effect on many businesses and industries in this country would be knocking at the door of catastrophic. It cannot be allowed to happen.

However, introducing a requirement to assess the impact of the Bill on the European Union data adequacy decision requires us to speculate on EU intentions in a public document, which runs the risk of prompting changes on its part or revealing our hand to it in ways that we would rather not do. It is important that we do two things: understand our risk, without necessarily publishing it publicly; and continue to engage at ministerial and official level, as I know we are doing intensively. I think the approach set out in this amendment runs the risk of being counterproductive.

[Lord Vallance of Balham (Lab)]

I thank the noble Lord, Lord Clement-Jones, for his amendment, and the noble and learned Lord, Lord Thomas, for his contribution. I agree with them on the value and importance placed on maintaining our data adequacy decisions from the EU this year. That is a priority for the Government, and I reassure those here that we carefully considered all measures in the light of the EU’s review of our adequacy status when designing the Bill.

The Secretary of State wrote to the House of Lords European Affairs Committee on 20 November 2024 on this very point and I would be happy to share this letter with noble Lords if that would be helpful. The letter sets out the importance this Government place on renewal of our EU adequacy decisions and the action we are taking to support this process.

It is important to recognise that the EU undertakes its review of its decisions for the UK in a unilateral, objective and independent way. As the DSIT Secretary of State referenced in his appearance before the Select Committee on 3 December, it is important that we acknowledge the technical nature of the assessments. For that reason, we respect the EU’s discretion about how it manages its adequacy processes. I echo some of the points made by the noble Viscount, Lord Camrose.

That being said, I reassure noble Lords that the UK Government are doing all they can to support a swift renewal of our adequacy status in both technical preparations and active engagement. The Secretary of State met the previous EU Commissioner twice last year to discuss the importance of personal data sharing between the UK and EU. He has also written to the new Commissioner for Justice responsible for the EU’s review and looks forward to meeting Commissioner McGrath soon.

I also reassure noble Lords that DSIT and the Home Office have dedicated teams that have been undertaking preparations ahead of this review, working across government as needed. Those teams are supporting European Commission officials with the technical assessment as required. UK officials have met with the European Commission four times since the introduction of the Bill, with future meetings already in the pipeline.

Data (Use and Access) Bill [HL]

Debate between Lord Vallance of Balham and Viscount Camrose

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.

--- Later in debate ---

[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.

Undersea Cables

Debate between Lord Vallance of Balham and Viscount Camrose

Tuesday 3rd December 2024 Lords Chamber

[Lord Vallance of Balham (Lab)]

The detection of breaks is done from land, but the ability to repair them is through an agreement with the commercial companies, which pay into a fund that allows a ship to be on 24/7 standby to provide protection. That is paid for by the companies that put the cables in place.

[Viscount Camrose (Con)]

My Lords, we of course recognise and share the Government’s and House’s concern about increased Russian military activity around these undersea cables. I was pleased that the Minister a couple of times referenced the risk assessments going on, but can he tell the House a little more and expand on his earlier answers about those risk assessments? How do they take place and how often do they occur?

[Lord Vallance of Balham (Lab)]

The national risk assessment is undertaken regularly and led by the Cabinet Office. In this instance, DSIT is the department responsible for the risk to the cables overall, but it is in collaboration with the MoD, the Cabinet Office and others, particularly in relation to assessing risks other than those that I have outlined.

Satellites: Adverse Effects on Astronomy

Debate between Lord Vallance of Balham and Viscount Camrose

Wednesday 20th November 2024 Lords Chamber

[Lord Vallance of Balham (Lab)]

This is a critical question. The Royal Institute of Navigation has recently—in fact, today—launched a paper on how to prepare for this. It is something that all critical national infrastructure will be urged to look at, to have a plan for what would happen in the event of GPS failure. There is a longer-term question about the alternatives to space-based navigation and there is active work going on in the UK on terrestrial approaches, including the use of quantum systems to try to get a robust secondary approach to PNT.

[Viscount Camrose (Con)]

My Lords, now that over 70 nations have their own space agency, how will the Government pursue the widest and most effective possible international co-operation in support of Astra Carta’s aim,

“to care for the infinite wonders of the universe”?

[Lord Vallance of Balham (Lab)]

There is a series of international collaborations in place. We are a member of the European Space Agency. A large proportion of the £1.9 billion of the UK Space Agency money goes to the European Space Agency and our collaborators there. We also spend through the MoD and through UKRI. We are members of the UN bodies that deal with the question of a sustainable space sector and space environment. The space environment is increasingly important and needs attention. We will continue to raise this question at the UN bodies.

Artificial Intelligence: Regulation

Debate between Lord Vallance of Balham and Viscount Camrose

Thursday 17th October 2024 Lords Chamber

[Lord Vallance of Balham (Lab)]

That is an area that of course comes under several other parts of regulation already. It is also an area where there are massive changes in the way that these models perform. If one looks at GPT-4 versus GPT-3—I know it is not facial recognition, but it gives an indication of the types of advances—it is about twice as good now as it was a year ago. These things are moving fast and there is indeed a need to understand exactly how facial recognition technology is valid and where it has problems in recognition.

[Viscount Camrose (Con)]

My Lords, the supply chain for the development of the more advanced AI systems is, in almost every case, highly global in nature. That means that it becomes quite straightforward for AI developers to offshore their activities from any jurisdiction whose regulations they might prefer not to follow. This being the case, do the Government agree that the regulations for AI development, as distinguished mostly from use, are going to have to be global in nature? If the Government agree with that, how is it reflected in their plans for AI regulation going forward?

[Lord Vallance of Balham (Lab)]

The noble Viscount makes an important point. This will be global; there is no question about it. Therefore, there needs to be some degree of interoperability between different regions in terms of the regulations put in place. At the moment, as I said, of the two most advanced, the US is the biggest AI nation in the world and is developing a regulation along similar lines to ours, we believe. The EU is of course the most regulated place in the world for AI and we need to work out, in consultation over the next months, how to make sure that we work out where the areas of interoperability will lie.

Framework Convention on Artificial Intelligence

Debate between Lord Vallance of Balham and Viscount Camrose

Tuesday 15th October 2024 Lords Chamber

[Lord Vallance of Balham (Lab)]

The convention sets out activities in the life cycle of AI systems, and they should not infringe our values of human rights, democratic processes and the effectiveness of democratic institutions or the rule of law. It applies to the public sector, to the public sector when using the private sector, and there is an obligation to consider how private sector activities can be taken into account when this is implemented in a national framework.

[Viscount Camrose (Con)]

My Lords, international bodies currently working on AI safety and regulation include the UN, UNESCO, the ITU, the G7, the G20 and the GPI, among several others. Do the Government agree that although each of these groups is crucial and has a very important role to play in creating safe and well-regulated AI globally, they will be successful only to the extent that they are effectively co-ordinated? If so, what steps are the Government taking to bring that about?

[Lord Vallance of Balham (Lab)]

We are in active discussion with all those partners. As we consider an AI Act, we will work closely with partners in the US and elsewhere and apply it only to the limited number of companies at the very forefront of AI, to those models of tomorrow which carry particular risk and, again, where guard-rails have been asked for.