Data (Use and Access) Bill [HL]

Debate between Viscount Camrose and Lord Vallance of Balham

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 Viscount Camrose and Lord Vallance of Balham

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 Viscount Camrose and Lord Vallance of Balham

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 Viscount Camrose and Lord Vallance of Balham

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 Viscount Camrose and Lord Vallance of Balham

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.