Data Protection and Digital Information Bill

Baroness Harding of Winscombe Excerpts

Committee stage
Wednesday 20th March 2024 Grand Committee

Ultimately, information should be retained within a locked box, where it stays, and the medical researchers, who are crucial, come up with their programme, using a sandbox, that is then applied to the locked-away data. The researchers would just get the results; they would not go anywhere near the data. The outcome of the research is identical but people’s medical information —their genetic information—would be kept away, secure. We have to work to that objective. I do not quite know yet whether the Bill gets that far, but it is crucial.

[Baroness Harding of Winscombe (Con)]

My Lords, I, too, support the amendments in the name of the noble Lord, Lord Clement-Jones. As this is the first time I have spoken during the passage of the Bill, I should also declare my interests, but it seems that all the organisations I am involved in process data, so I refer the Committee to all the organisations in my entry in the register of interests.

I want to tell a story about the challenges of distinguishing between personal data and pseudonymised data. I apologise for bringing everyone back to the world of Covid, but that was when I realised how possible it is to track down individuals without any of their personal data. Back in November or December 2020, when the first variant of Covid, the Kent variant, was spreading, one test that was positive for the Kent variant came with no personal details at all. The individual who had conducted that test had not filled in any of the information. I was running NHS Test and Trace and we had to try to find that individual, in a very public way. In the space of three days, with literally no personal information—no name, address or sense of where they lived—the team was able to find that human being. Through extraordinary ingenuity, it tracked them down based on the type of tube the test went into—the packaging that was used—and by narrowing down the geography of the number of postcodes where the person might have been ill and in need of help but also in need of identifying all their contacts.

I learned that it was possible to find that one human being, out of a population of 60 million, within three days and without any of their personal information. I tell this story because my noble friend Lord Kamall made such an important point that, at the heart of data legislation is the question of how you build trust in the population. We have to build on firm foundations if the population are to trust that there are reasons why sharing data is hugely valuable societally. To have a data Bill that does not have firm foundations in absolutely and concretely defining personal data is quite a fatal flaw.

Personal data being subjective, as the noble Lord, Lord Clement-Jones, so eloquently set out, immediately starts citizens on a journey of distrusting this world. There is so much in this world that is hard to trust, and I feel strongly that we have to begin with some very firm foundations. They will not be perfect, but we need to go back to a solid definition of “personal data”, which is why I wholeheartedly support the noble Lord’s amendments.

[Lord Bassam of Brighton (Lab)]

My Lords, I hesitate to make a Second Reading speech, and I know that the noble Lord, Lord Clement-Jones, cannot resist rehearsing these points. However, it is important, at the outset of Committee, to reflect on the Bill in its generality, and the noble Lord did a very good job of precisely that. This is fundamental.

The problem for us with the Bill is not just that it is a collection of subjects—of ideas about how data should be handled, managed and developed—but that it is flawed from the outset. It is a hotchpotch of things that do not really hang together. Several of us have chuntered away in the margins and suggested that it would have been better if the Bill had fallen and there had been a general election—not that the Minister can comment on that. But it would be better, in a way. We need to go back to square one, and many in the Committee are of a like mind.

The noble Baroness, Lady Harding, made a good point about data management, data control and so on. Her example was interesting, because this is about building trust, having confidence in data systems and managing data in the future. Her example was very good, as was that of the noble Lord, Lord Davies, who raised a challenge about how the anonymisation, or pseudonymisation, of data will work and how effective it will be.

We have two amendments in this group. Taken together, they are designed to probe exactly what the practical impacts will be of the proposed changes to Section 3 of the 2018 Act and the insertion of new Section 3A. Amendment 4 calls for the Secretary of State to publish an assessment of the changes within two months of the Bill passing, while Amendment 301 would ensure that the commencement of Clause 1 takes place no earlier than that two-month period. Noble Lords might think this is unduly cautious, but, given our wider concerns about the Bill and its departure from the previously well-understood—

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[Baroness Harding of Winscombe (Con)]

My Lords, in the nearly nine years that I have been in this House, I have often played the role of bag carrier to the noble Baroness, Lady Kidron, on this issue. In many ways, I am rather depressed that once again we need to make the case that children deserve a higher bar of protection than adults in the digital world. As the noble Baroness set out—I will not repeat it—the age-appropriate design code was a major landmark in establishing that you can regulate the digital world just as you can the physical world. What is more, it is rather joyful that when you do, these extraordinarily powerful tech companies change their products in the way that you want them to.

This is extremely hard-fought ground that we must not lose. It takes us to what feels like a familiar refrain from the Online Safety Act and the Digital Markets, Competition and Consumers Bill, which we are all still engaged in: the question of whether you need to write something in the Bill and whether, by doing so, you make it more clear or less clear.

Does my noble friend the Minister agree with the fundamental principle, enshrined in the Data Protection Act 2018, that children deserve a higher bar of protection in the online world and that children’s data needs to be protected at a much higher level? If we can all agree on that principle first, then the question is: how do we make sure that this Bill does not weaken the protection that children have?

I am trying to remember on which side of the “put it in the Bill or not” debate I have been during discussions on each of the digital Bills that we have all been working on over the last couple of years. We have a really vicious problem where, as I understand it, the Government keep insisting that the Bill does not water down data protection and therefore there is no need to write anything into it to protect children’s greater rights. On the other hand, I also hear that it will remove bureaucracy and save businesses a lot of money. I have certainly been in rooms over the last couple of years where business representatives have told me, not realising I was one of the original signatories to the amendment that created the age-appropriate design code, how dreadful it was because it made their lives much more complicated.

I have no doubt that if we create a sense—which is what it is—that companies do not need to do quite as much as they used to for children in this area, that sense will create, if not a wide-open door, an ajar door that enables businesses to walk through and take the path of least resistance, which is doing less to protect children. That is why, in this case, I come down on the side of wanting to put it explicitly in the Bill, in whatever wording my noble friend the Minister thinks appropriate, that we are really clear that this creates no change at all in the approach for children and children’s data.

That is what this group of amendments is about. I know that we will come back to a whole host of other areas where there is a risk that children’s data could be handled differently from the way envisaged in that hard-fought battle for the age-appropriate design code but, on this group alone, it would be helpful if my noble friend the Minister could help us establish that firm principle and commit to coming back with wording that will firmly establish it in the Bill.

[Lord Clement-Jones (LD)]

My Lords, I keep getting flashbacks. This one is to the Data Protection Act 2018, although I think it was 2017 when we debated it. It is one of the huge achievements of the noble Baroness, Lady Kidron, to have introduced, and persuaded the Government to introduce, the age-appropriate design code into the Act, and—as she and the noble Baroness, Lady Harding, described—to see it spread around the world and become the gold standard. It is hardly surprising that she is so passionate about wanting to make sure that the Bill does not water down the data rights of children.

I think the most powerful amendment in this group is Amendment 290. For me, it absolutely bottles what we need to do in making sure that nothing in the Bill waters down children’s rights. If I were to choose one of the noble Baroness’s amendments in this group, it would be that one: it would absolutely give the assurance and scotch the point about legal uncertainty created by the Bill.

Both noble Baronesses asked: if the Government are not watering down the Bill, why can they not say that they are not? Why can they not, in a sense, repeat the words of Paul Scully when he was debating the Bill? He said:

“We are committed to protecting children and young people online. The Bill maintains the high standards of data protection that our citizens expect and organisations will still have to abide by our age-appropriate design code”.


He uses “our”, so he is taking full ownership of it. He went on:

“Any breach of our data protection laws will result in enforcement action by the Information Commissioner’s Office”.—[Official Report, Commons, 17/4/23; col. 101.]


I would love that enshrined in the Bill. It would give us a huge amount of assurance.

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[Lord Clement-Jones (LD)]

My Lords, not to put too fine a point on it, the Minister is saying that nothing in the Bill diminishes children’s rights, whether in Clause 1, Clause 6 or the legitimate interest in Clause 5. He is saying that absolutely nothing in the Bill diminishes children’s rights in any way. Is that his position?

[Baroness Harding of Winscombe (Con)]

Can I add to that question? Is my noble friend the Minister also saying that there is no risk of companies misinterpreting the Bill’s intentions and assuming that this might be some form of diminution of the protections for children?

[Viscount Camrose (Con)]

In answer to both questions, what I am saying is that, first, any risk of misinterpreting the Bill with respect to children’s safety is diminished, rather than increased, by the Bill. Overall, it is the Government’s belief and intention that the Bill in no way diminishes the safety or privacy of children online. Needless to say, if over the course of our deliberations the Committee identifies areas of the Bill where that is not the case, we will absolutely be open to listening on that, but let me state this clearly: the intent is to at least maintain, if not enhance, the safety and privacy of children and their data.

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[Baroness Kidron (CB)]

My Lords, I speak to Amendments 8, 21, 23 and 145 in my name and thank the other noble Lords who have added their names to them. In the interests of brevity, and as the noble Lord, Lord Clement-Jones, has done some of the heavy lifting on this, I will talk first to Amendment 8.

The definition of scientific research has been expanded to include commercial and non-commercial activity, so far as it

“can reasonably be described as scientific”,

but “scientific” is not defined. As the noble Lord said, there is no public interest requirement, so a commercial company can, in reality, develop almost any kind of product on the basis that it may have a scientific purpose, even—or maybe especially—if it measures your propensity to impulse buy or other commercial things. The spectre of scientific inquiry is almost infinite. Amendment 8 would exclude children simply by adding proposed new paragraph (e), which says that

“the data subject is not a child or could or should be known to be a child”,

so that their personal data cannot be used for scientific research purposes to which they have not given their consent.

I want to be clear that I am pro-research and understand the critical role that data plays in enabling us to understand societal challenges and innovate towards solutions. Indeed, I have signed the amendment in the name of the noble Lord, Lord Bethell, which would guarantee access to data for academic researchers working on matters of public interest. Some noble Lords may have been here last night, when the US Surgeon- General Vice Admiral Dr Murthy, who gave the Lord Speaker’s lecture, made a fierce argument in favour of independent public interest research, not knowing that such a proposal has been laid. I hope that, when we come to group 17, the Government heed his wise words.

In the meantime, Clause 3 simply embeds the inequality of arms between academics and corporates and extends it, making it much easier for commercial companies to use personal data for research while academics continue to be held to much higher ethical and professional standards. They continue to require express consent, DBS checks and complex ethical requirements. Not doing so, simply using personal data for research, is unethical and commercial players can rely on Clause 3 to process data without consent, in pursuit of profit. Like the noble Lord, Lord Clement-Jones, I would prefer an overall solution to this but, in its absence, this amendment would protect data from being commoditised in this way.

Amendments 21 and 23 would specifically protect children from changes to Clause 6. I have spoken on this a little already, but I would like it on the record that I am absolutely in favour of a safeguarding exemption. The additional purposes, which are compatible with but go beyond the original purpose, are not a safeguarding measure. Amendment 21 would amend the list of factors that a data controller must take into account to include the fact that children are entitled to a higher standard of protection.

Amendment 23 would not be necessary if Amendment 22 were agreed. It would commit the Secretary of State to ensuring that, when exercising their power under new Article 8A, as inserted by Clause 6(5), to add, vary or omit provisions of Annex 2, they take the 2018 Act and children’s data protection into account.

Finally, Amendment 145 proposes a code of practice on the use of children’s data in scientific research. This code would, in contrast, ensure that all researchers, commercial or in the public interest, are held to the same high standards by developing detailed guidance on the use of children’s data for research purposes. A burning question for researchers is how to properly research children’s experience, particularly regarding the harms defined by the Online Safety Act.

Proposed new subsection (1) sets out the broad headings that the ICO must cover to promote good practice. Proposed new subsection (2) confirms that the ICO must have regard to children’s rights under the UNCRC, and that they are entitled to a higher standard of protection. It would also ensure that the ICO consulted with academics, those who represent the interests of children and data scientists. There is something of a theme here: if the changes to UK GDPR did not diminish data subjects’ privacy and rights, there would be no need for amendments in this group. If there were a code for independent public research, as is so sorely needed, the substance of Amendment 145 could usefully form a part. If commercial companies can extend scientific research that has no definition, and if the Bill expands the right to further processing and the Secretary of State can unilaterally change the basis for onward processing, can the Minister explain, when he responds, how he can claim that the Bill maintains protections for children?

[Baroness Harding of Winscombe (Con)]

My Lords, I will be brief because I associate myself with everything that the noble Baroness, Lady Kidron, just said. This is where the rubber hits the road from our previous group. If we all believe that it is important to maintain children’s protection, I hope that my noble friend the Minister will be able to accept if not the exact wording of the children-specific amendments in this group then the direction of travel—and I hope that he will commit to coming back and working with us to make sure that we can get wording into the Bill.

I am hugely in favour of research in the private sector as well as in universities and the public sector; we should not close our minds to that at all. We need to be realistic that all the meaningful research in AI is currently happening in the private sector, so I do not want to close that door at all, but I am extremely uncomfortable with a Secretary of State having the ability to amend access to personal data for children in this context. It is entirely sensible to have a defined code of conduct for the use of children’s data in research. We have real evidence that a code of conduct setting out how to protect children’s rights and data in this space works, so I do not understand why it would not be a good idea to do research if we want the research to happen but we want children’s rights to be protected at a much higher level.

It seems to me that this group is self-evidently sensible, in particular Amendments 8, 22, 23 and 145. I put my name to all of them except Amendment 22 but, the more I look at the Bill, the more uncomfortable I get with it; I wish I had put my name to Amendment 22. We have discussed Secretary of State powers in each of the digital Bills that we have looked at and we know about the power that big tech has to lobby. It is not fair on Secretaries of State in future to have this ability to amend—it is extremely dangerous. I express my support for Amendment 22.

[Lord Davies of Brixton (Lab)]

I just want to say that I agree with what the previous speakers have said. I particularly support Amendment 133; in effect, I have already made my speech on it. At that stage, I spoke about pseudonymised data but I focused my remarks on scientific research. Clearly, I suspect that the Minister’s assurances will not go far enough, although I do not want to pre-empt what he says and I will listen carefully to it. I am sure that we will have to return to this on Report.

I make a small additional point: I am not as content as the noble Baroness, Lady Harding of Winscombe, about commercial research. Different criteria apply; if we look in more detail at ensuring that research data is protected, there may be special factors relating to commercial research that need to be covered in a potential code of practice or more detailed regulations.