AI: Intellectual Property Rights

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Thursday 9th May 2024 Lords Chamber

[Viscount Camrose (Con)]

I thank my noble friend and her committee for that important letter. First, we must not underestimate the difficulty and complexity of the issues involved in resolving this question; there are very problematic jurisdictional and technical issues. That said, the Government greatly welcome any arrangement between private sector organisations finding a way forward on this; we can all learn a great deal from the success of those arrangements. We believe that a collaborative way forward on both sides, in partnership, will be a very important part of the eventual solution.

[Baroness Jones of Whitchurch (Lab)]

My Lords, the Minister was right to say that we should recognise that AI can bring opportunities to the creative sector. For example, nearly a decade after a near-fatal stroke, the musician Randy Travis has released a new song featuring AI-generated vocals. This has been done with his consent and the involvement of his record label, but elsewhere, as we have heard, AI tools are being widely used to create music in the style of established artists, despite no permission having been given and a total lack of creative control on the part of those artists and their representatives. Can the Minister outline how the Government are actively involving musicians, artists and writers in determining how best to protect that very precious intellectual property, while allowing creativity to flourish? I echo the noble Baroness’s theme: this is an urgent matter and we would like to hear how the Government will address it.

[Viscount Camrose (Con)]

The issue raised by the noble Baroness is of deep concern to everybody. As I say, there are some very serious problems, not least regarding the jurisdiction where any alleged infringement may or may not have taken place. Of course, any jurisdiction that implements rules one way or the other will find that the AI work she sets out so compellingly is simply offshored elsewhere. The Government engage very closely with creative groups, including fair remuneration groups for musicians and many others, and will continue to do so, looking for a solution to this difficult problem.

Deepfakes: General Election

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Wednesday 8th May 2024 Lords Chamber

[Baroness Jones of Whitchurch]

To ask His Majesty’s Government what steps they are taking to ensure political deepfakes on social media are not used to undermine the outcome of the general election.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

My Lords, we are working to ensure we are ready to respond to the full range of threats to our democratic processes, including through the Defending Democracy Taskforce. It is already an election offence to make false statements of fact about the personal character or conduct of a candidate before or during an election. Additionally, under the Online Safety Act, where illegal political deepfakes are shared on social media, they must be removed.

[Baroness Jones of Whitchurch (Lab)]

My Lords, Google’s Kent Walker has talked of the “very serious” threat posed by AI-generated deepfakes and disinformation. The Prime Minister, the Leader of the Opposition and the Mayor of London have all been the subject of deepfakes, so it is not surprising that the Home Secretary has identified a critical window for collective action to preserve the integrity of the forthcoming election. Obviously, monitoring online content is important, but that will not prevent malign individuals or hostile foreign states trying to interfere in the forthcoming elections at home and abroad. Will the Minister finally take up our proposals to use the Data Protection Bill to fill the deepfake gap left by the Online Safety Act so that we can all have confidence in the outcome of the general election?

[Viscount Camrose (Con)]

I start by saying that I very much share the view of the importance of protecting the forthcoming general election—and indeed every election—from online deepfakes, whether generated by AI or any other means. I think it is worth reminding the House that a range of existing criminal offences, such as the foreign interference offence, the false communications offence and offences under the Representation of the People Act, already address the use of deepfakes to malignly influence elections. While these Acts will go some way to deterring, I also think it is important to remind the House of the crucial non-legislative measures that we can take, continue to take and will take up to the completion of the election.

Universities: Sensitive Research

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Tuesday 30th April 2024 Lords Chamber

[Viscount Camrose (Con)]

I certainly recognise the concern that overseas undergraduates tend to come very largely from a small number of countries, and the value of diversifying from that. I am afraid I am not familiar with the case the noble Lord mentions. I am very happy to write to him about it. It sounds extremely concerning.

[Baroness Jones of Whitchurch (Lab)]

My Lords, upholding national security is the first duty of any Government. To that end, we welcome the Government’s recent briefing for vice-chancellors and the intention to consult on how better to protect UK research from academic espionage. Given the importance of and the likely increase in these threats, does the Minister think it would be reasonable for the Deputy Prime Minister and the Secretary of State to offer similar briefings to their shadow counterparts?

[Viscount Camrose (Con)]

I would be very happy to raise that with them and ask them to do so. I take the noble Baroness’s point. There is nothing more important for us to do than look after our security, and research security is a very serious component of that.

Data Protection and Digital Information Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Wednesday 24th April 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am pleased that we were able to sign this amendment. Once again, the noble Baroness, Lady Kidron, has demonstrated her acute ability to dissect and to make a brilliant argument about why an amendment is so important.

As the noble Lord, Lord Clement-Jones, and others have said previously, what is the point of this Bill? Passing this amendment and putting these new offences on the statute book would give the Bill the purpose and clout that it has so far lacked. As the noble Baroness, Lady Kidron, has made clear, although it is currently an offence to possess or distribute child sex abuse material, it is not an offence to create these images artificially using AI techniques. So, quite innocent images of a child—or even an adult—can be manipulated to create child sex abuse imagery, pornography and degrading or violent scenarios. As the noble Baroness pointed out, this could be your child or a neighbour’s child being depicted for sexual gratification by the increasingly sophisticated AI creators of these digital models or files.

Yesterday’s report from the Internet Watch Foundation said that a manual found on the dark web encourages “nudifying” tools to remove clothes from child images, which can then be used to blackmail them into sending more graphic content. The IWF reports that the scale of this abuse is increasing year on year, with 275,000 web pages containing child sex abuse being found last year; I suspect that this is the tip of the iceberg as much of this activity is occurring on the dark web, which is very difficult to track. The noble Baroness, Lady Kidron, made a powerful point: there is a danger that access to such materials will also encourage offenders who then want to participate in real-world child sex abuse, so the scale of the horror could be multiplied. There are many reasons why these trends are shocking and abhorrent. It seems that, as ever, the offenders are one step ahead of the legislation needed for police enforcers to close down this trade.

As the noble Baroness, Lady Kidron, made clear, this amendment is “laser focused” on criminalising those who are developing and using AI to create these images. I am pleased to say that Labour is already working on a ban on creating so-called nudification tools. The prevalence of deepfakes and child abuse on the internet is increasing the public’s fear of the overall safety of AI, so we need to win their trust back if we are to harness the undoubted benefits that it can deliver to our public services and economy. Tackling this area is one step towards that.

Action to regulate AI by requiring transparency and safety reports from all those at the forefront of AI development should be a key part of that strategy, but we have a particular task to do here. In the meantime, this amendment is an opportunity for the Government to take a lead on these very specific proposals to help clean up the web and rid us of these vile crimes. I hope the Minister can confirm that this amendment, or a government amendment along the same lines, will be included in the Bill. I look forward to his response.

[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for tabling Amendment 291, which would create several new criminal offences relating to the use of AI to collect, collate and distribute child abuse images or to possess such images after they have been created. Nobody can dispute the intention behind this amendment.

We recognise the importance of this area. We will continue to assess whether and what new offences are needed to further bolster the legislation relating to child sexual abuse and AI, as part of our wider ongoing review of how our laws need to adapt to AI risks and opportunities. We need to get the answers to these complex questions right, and we need to ensure that we are equipping law enforcement with the capabilities and the powers needed to combat child sexual abuse. Perhaps, when I meet the noble Baroness, Lady Kidron, on the previous group, we can also discuss this important matter.

However, for now, I reassure noble Lords that any child sex abuse material, whether AI generated or not, is already illegal in the UK, as has been said. The criminal law is comprehensive with regard to the production and distribution of this material. For example, it is already an offence to produce, store or share any material that contains or depicts child sexual abuse, regardless of whether the material depicts a real child or not. This prohibition includes AI-generated child sexual abuse material and other pseudo imagery that may have been AI or computer generated.

We are committed to bringing to justice offenders who deliberately misuse AI to generate child sexual abuse material. We demonstrated this as part of the road to the AI Safety Summit, where we secured agreement from NGO, industry and international partners to take action to tackle AI-enabled child sexual abuse. The strongest protections in the Online Safety Act are for children, and all companies in scope of the legislation will need to tackle child sexual abuse material as a priority. Applications that use artificial intelligence will not be exempt and must incorporate robust guard-rails and safety measures to ensure that AI models and technology cannot be manipulated for child sexual abuse purposes.

Furthermore, I reassure noble Lords that the offence of taking, making, distributing and possessing with a view to distribution any indecent photograph or pseudophotograph of a child under the age of 18 carries a maximum sentence of 10 years’ imprisonment. Possession alone of indecent photographs or pseudophotographs of children can carry a maximum sentence of up to five years’ imprisonment.

However, I am not able to accept the amendment, as the current drafting would capture legitimate AI models that have been deliberately misused by offenders without the knowledge or intent of their creators to produce child sexual abuse material. It would also inadvertently criminalise individual users who possess perfectly legal digital files with no criminal intent, due to the fact that they could, when combined, enable the creation of child sexual abuse material.

I therefore ask the noble Baroness to withdraw the amendment, while recognising the strength of feeling and the strong arguments made on this issue and reiterating my offer to meet with her to discuss this ahead of Report.

Data Protection and Digital Information Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Monday 22nd April 2024 Grand Committee

[Viscount Camrose (Con)]

Indeed. Many such petitions are of course initiated by charitable organisations or other not-for-profits and they would equally benefit from the soft opt-in rule, but anyone under any of those circumstances who wished not to receive those communications could opt out either at the time or on receipt of the first communication on becoming aware that they were due to receive these. For those reasons, I hope that the noble Baroness will not press her amendments in relation to these provisions.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for digging and delving into the background of all this. That is helpful because, all the way through our previous debate, we kept saying, “We don’t understand why these provisions are here”. When the Minister in the Commons was challenged, he said, “We have no intention of using this; it’s just a general power that might be there for anyone to use”, but the noble Lord has put the lie to all that. It is clear that only one party wants to pursue this issue: the Conservative Party.

The Minister said that there is no partisan objective or reason for this but, to be honest, I do not know how he can say that. If only one party wants it and no one else does, then only one party is going to implement it. Without going over the whole of the previous debate, I think a lot of people felt that we as political parties have a lot to do to improve our relationships with the electorate and be seen to represent them on an honest and authentic basis.

This goes in the opposite direction. It is almost collecting data for one purpose and using it for a different one. The noble Lord, Lord Clement-Jones, and the Minister discussed the example of collecting information on a street stall; we have all done that a bit, in that you can put very generalised questions on a questionnaire which could then be used for all sorts of purposes.

Data Protection and Digital Information Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Wednesday 17th April 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, I listened carefully to the explanation given by the noble Lord, Lord Clement-Jones, for his stand part notice on Clause 44. I will have to read Hansard, as I may have missed something, but I am not sure I am convinced by his arguments against Clause 44 standing part. He described his stand part notice as “innocuous”, but I am concerned that if the clause were removed it would have a slightly wider implication than that.

We feel that there are some advantages to how Clause 44 is currently worded. As it stands, it simply makes it clear that data subjects have to use the internal processes to make complaints to controllers first, and then the controller has the obligation to respond without undue delay. Although this could place an extra burden on businesses to manage and reply to complaints in a timely manner, I would have thought that this was a positive step to be welcomed. It would require controllers to have clear processes in place for handling complaints; I hope that that in itself would be an incentive against their conducting the kind of unlawful processing that prompts complaints in the first place. This seems the best practice, which would apply anyway in most organisations and complaint and arbitration systems, including, perhaps, ombudsmen, which I know the noble Lord knows more about than I do these days. There should be a requirement to use the internal processes first.

The clause makes it clear that the data subject has a right to complain directly to the controller and it makes clear that the controller has an obligation to respond. Clause 45 then goes on to make a different point, which is that the commissioner has a right to refuse to act on certain complaints. We touched on this in an earlier debate. Clearly, to be in line with Clause 44, the controller would have to have finished handling the case within the allotted time. We agree with that process. However, an alternative reason for the commissioner to refuse is when the complaint is “vexatious or excessive”. We have rehearsed our arguments about the interpretation of those words in previous debates on the application of subject access requests. I do not intend to repeat them here, but our concern about that wording rightly remains. What is important here is that the ICO should not be able to reject complaints simply because the complainant is distressed or angry. It is helpful that the clause states that in these circumstances,

“the Commissioner must inform the complainant”

of the reasons it is considered vexatious or excessive. It is also helpful that the clause states that this

“does not prevent the complainant from making it a complaint again”,

presumably in a way more compliant with the rules. Unlike the noble Lord, Lord Clement Jones—as I said, I will look at what he said in more detail—on balance, we are content with the wording as it stands.

On a slightly different tack, we have added our name to Amendment 154, in the name of the noble Lord, Lord Clement-Jones, and we support Amendment 287 on a similar subject. This touches on a similar principle to our previous debate on the right of data communities to raise data-breach complaints on behalf of individuals. In these amendments, we are proposing that there should be a collective right for organisations to raise data-breach complaints for individuals or groups of individuals who do not necessarily feel sufficiently empowered or confident to raise the complaints on their own behalf. There are many reasons why this reticence might occur, not least that the individuals may feel that making a complaint would put their employment on the line or that they would suffer discrimination at work in the future. We therefore believe that these amendments are important to widen people’s access to work with others to raise these complaints.

Since these amendments were tabled, we have received the letter from the Minister that addresses our earlier debate on data communities. I am pleased to see the general support for data intermediaries that he set out in his letter. We argue that a data community is a separate distinct collective body, which is different from the wider concept of data intermediaries. This seems to be an area in which the ICO could take a lead in clarifying rights and set standards. Our Amendment 154 would therefore set a deadline for the ICO to do that work and for those rights to be enacted.

The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, made a good case for broadening these rights in the Bill and, on that basis, I hope the Minister will agree to follow this up, and follow up his letter so that we can make further progress on this issue.

The noble Lord, Lord Clement-Jones, has tabled a number of amendments that modify the courts and tribunals functions. I was hoping that when I stood here and listened to him, I would understand a bit more about the issues. I hope he will forgive me for not responding in detail to these arguments. I do not feel that I know enough about the legal background to the concerns but he seems to have made a clear case in clarifying whether the courts or tribunals should have jurisdiction in data protection issues.

On that basis, I hope that the Minister will also provide some clarification on these issues and I look forward to his response.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for tabling these amendments to Clauses 44 and 45, which would reform the framework for data protection complaints to the Information Commissioner.

The noble Lord, Lord Clement-Jones, has given notice of his intention to oppose Clause 44 standing part of the Bill. That would remove new provisions from the Bill that have been carefully designed to provide a more direct route to resolution for data subjects’ complaints. I should stress that these measures do not limit rights for data subjects to bring complaints forward, but instead provide a more direct route to resolution with the relevant data controller. The measures formalise current best practice, requiring the complainant to approach the relevant data controller, where appropriate, to attempt to resolve the issue prior to regulatory involvement.

The Bill creates a requirement for data controllers to facilitate the making of complaints and look into what may have gone wrong. This should, in most cases, result in a much quicker resolution of data protection-related complaints. The provisions will also have the impact of enabling the Information Commissioner to redeploy resources away from handling premature complaints where such complaints may be dealt with more effectively, in the first instance, by controllers and towards value-added regulatory activity, supporting businesses to use data lawfully and in innovative ways.

The noble Lord’s Amendment 153 seeks, in effect, to expand the scope of the Information Commissioner’s duty to investigate complaints under Section 165 of the Data Protection Act. However, that Section of the Act already provides robust redress routes, requiring the commissioner to take appropriate steps to respond to complaints and offer an outcome or conclude an investigation within a specified period.

The noble Lord raised the enforcement of the UK’s data protection framework. I can provide more context on the ICO’s approach, although noble Lords will be aware that it is enforced independently of government by the ICO; it would of course be inappropriate for me to comment on how the ICO exercises its enforcement powers. The ICO aims to be fair, proportionate and effective, focusing on areas with the highest risk and most harm, but this does not mean that it will enforce every case that crosses its books.

The Government have introduced a new requirement on the ICO—Clause 43—to publish an annual report on how it has exercised its enforcement powers, the number and nature of investigations, the enforcement powers used, how long investigations took and the outcome of the investigations that ended in that period. This will provide greater transparency and accountability in the ICO’s exercise of its enforcement powers. For these reasons, I am not able to accept these amendments.

I also thank the noble Baroness and the noble Lord for their Amendments 154 and 287 concerning Section 190 of the Data Protection Act. These amendments would require the Secretary of State to legislate to give effect to Article 80(2) of the UK GDPR to enable relevant non-profit organisations to make claims against data controllers for alleged data breaches on behalf of data subjects, without those data subjects having requested or agreeing to the claim being brought. Currently, such non-profit organisations can already pursue such actions on behalf of individuals who have granted them specific authorisation, as outlined in Article 80(1).

In 2021, following consultation, the Government concluded that there was insufficient evidence to justify implementing Article 80(2) to allow non-profit organisations to bring data protection claims without the authorisation of the people affected. The Government’s response to the consultation noted that the regulator can and does investigate complaints raised by civil society groups, even when they are not made on behalf of named individuals. The ICO’s investigations into the use of live facial recognition technology at King’s Cross station and in some supermarkets in southern England are examples of this.

I also thank the noble Baroness, Lady Kidron, for raising her concerns about the protection of children throughout the debate—indeed, throughout all the days in Committee. The existing regime already allows civil society groups to make complaints to the ICO about data-processing activities that affect children and vulnerable people. The ICO has a range of powers to investigate systemic data breaches under the current framework and is already capable of forcing data controllers to take decisive action to address non-compliance. We are strengthening its powers in this Bill. I note that only a few member states of the EU have allowed non-governmental organisations to launch actions without a mandate, in line with the possibility provided by the GDPR.

I turn now to Amendments 154A, 154B—

--- Later in debate ---

[Viscount Camrose (Con)]

I have no doubt that its contribution to the letter will be equally enjoyable. However, for all the reasons I set out above, I am not able to accept these amendments and respectfully encourage the noble Baroness and noble Lords not to press them.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I suppose I am meant to say that I thank the Minister for his response, but I cannot say that it was particularly optimistic or satisfying. On my amendments, the Minister said he would be responding to the DPRRC in due course, and obviously I am interested to see that response, but as the noble Lord, Lord Clement-Jones, said, the committee could not have been clearer and I thought made a very compelling case for why there should be some parliamentary oversight of this main code and, indeed, the fees arrangements.

I understand that it is a fast-moving sector, but the sort of things that the Delegated Powers Committee was talking about was that the main code should have some fundamental principles, some user rights and so on. We are not trying to spell out every sort of service that is going to be provided—as the Minister said, it is a fast-moving sector—but people need to have some trust in it and they need to know what this verification service is going to be about. Just saying that there is going to be a code, on such an important area, and that the Secretary of State will write it, is simply not acceptable in terms of basic parliamentary democracy. If it cannot be done through an affirmative procedure, the Government need to come up with another way to make sure that there is appropriate parliamentary input into what is being proposed here.

On the subject of the fees, the Delegated Powers Committee and our amendment was saying only that there should be a negative SI. I thought that was perfectly reasonable on its part and I am sorry that the Minister is not even prepared to accept that perfectly suggestion. All in all, I thought that the response on that element was very disappointing.

The response was equally disappointing on the whole issue that the noble Lords, Lord Kamall and Lord Vaux, raised about the right not to have to use the digital verification schemes but to do things on a non-digital basis. The arguments are well made about the numbers of people who are digitally excluded. I was in the debate that the noble Lord referred to, and I cannot remember the statistics now, but something like 17% of the population do not have proper digital access, so we are excluding a large number of people from a whole range of services. It could be applying for jobs, accessing bank accounts or applying to pay the rent for your son’s flat or whatever. We are creating a two-tier system here, for those who are involved and those who are on the margins who cannot use a lot of the services. I would have hoped that the Government would have been much more engaged in trying to find ways through that and providing some guarantees to people.

We know that we are taking a big leap, with so many different services going online. There is a lot of suspicion about how these services are going to work and people do not trust that computers are always as accurate as we would like them to be, so they would like to feel that there is another way of doing it if it all goes wrong. It worries me that the Minister is not able to give that commitment.

I have to say that I am rather concerned by what the Minister said about the private sector—in effect, that it can already have a requirement to have digital only. Surely, in this brave new world we are going towards, we do not want a digital-only service; this goes back to the point about a whole range of people being excluded. What is wrong with saying, even to people who collect people’s bank account details to pay their son’s rent, “There is an alternative way of doing this as well as you providing all the information digitally”? I am very worried about where all this is going, including who will be part of it and who will not. If the noble Lords, Lord Kamall and Lord Vaux, wish to pursue this at a later point, I would be sympathetic to their arguments.

On identity theft, the noble Lord, Lord Clement-Jones, made a compelling case. The briefing that he read out from the Metropolitan Police said that your data is one of your most valuable assets, which is absolutely right. He also rightly made the point that this is linked to organised crime. It does not happen by accident; some major people are farming our details and using them for all sorts of nefarious activities. There is a need to tighten up the regulation and laws on this. The Minister read out where he thinks this is already dealt with under existing legislation but we will all want to scrutinise that and see whether that really is the case. There are lots of examples of where the police have not been able to help people and do not know what their rights are, so we just need to know exactly what advice has been given to the police.

I feel that the Minister could have done more on this whole group to assure us that we are not moving towards a two-tier world. I will withdraw my amendment, obviously, but I have a feeling that we will come back to this issue; it may be something that we can talk to the Minister about before we get to Report.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

I am sorry, but I am wondering whether the Minister is going to say any more on the amendment in the name of the noble Lord, Lord Holmes. Can I be clear? The Minister said that the ICO is the best place to oversee these issues, but the noble Lord’s amendment recognises that; it just says that there should be a dedicated biometrics unit with specialists, et cetera, underneath it. I am looking towards the noble Lord—yes, he is nodding in agreement. I do not know that the Minister dismissed that idea, but I think that this would be a good compromise in terms of assuaging our concerns on this issue.

[Viscount Camrose (Con)]

I apologise if I have misunderstood. It sounds like it would be a unit within the ICO responsible for that matter. Let me take that away if I have misunderstood—I understood it to be a separate organisation altogether.

The Government deem Amendment 238 unnecessary, as using biometric data to categorise or make inferences about people, whether using algorithms or otherwise, is already subject to the general data protection principles and the high data protection standards of the UK’s data protection framework as personal data. In line with ICO guidance, where the processing of biometric data is intended to make an inference linked to one of the special categories of data—for example, race or ethnic origin—or the biometric data is processed for the intention of treating someone differently on the basis of inferred information linked to one of the special categories of data, organisations should treat this as special category data. These protections ensure that this data, which is not used for identification purposes, is sufficiently protected.

Similarly, Amendment 286 intends to widen the scope of the Forensic Information Databases Service—FINDS—strategy board beyond oversight of biometrics databases for the purpose of identification to include “classification” purposes as well. The FINDS strategy board currently provides oversight of the national DNA database and the national fingerprint database. The Bill puts oversight of the fingerprint database on the same statutory footing as that of the DNA database and provides the flexibility to add oversight of new biometric databases, where appropriate, to provide more consistent oversight in future. The delegated power could be used in the medium term to expand the scope of the board to include a national custody image database, but no decisions have yet been taken. Of course, this will be kept under review, and other biometric databases could be added to the board’s remit in future should these be created and should this be appropriate. For the reasons I have set out, I hope that the noble Baroness, Lady Jones of Whitchurch, will therefore agree not to move Amendments 238 and 286.

Responses to the data reform public consultation in 2021 supported the simplification of the complex oversight framework for police use of biometrics and surveillance cameras. Clauses 147 and 148 of the Bill reflect that by abolishing the Biometrics and Surveillance Camera Commissioner’s roles while transferring the commissioner’s casework functions to the Investigatory Powers Commissioner’s Office.

Noble Lords referred to the CRISP report, which was commissioned by Fraser Sampson—the previous commissioner—and directly contradicts the outcome of the public consultation on data reform in 2021, including on the simplification of the oversight of biometrics and surveillance cameras. The Government took account of all the responses, including from the former commissioner, in developing the policies set out in the DPDI Bill.

There will not be a gap in the oversight of surveillance as it will remain within the statutory regulatory remit of other organisations, such as the Information Commissioner’s Office, the Equality and Human Rights Commission, the Forensic Science Regulator and the Forensic Information Databases Service strategy board.

Data Protection and Digital Information Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Monday 15th April 2024 Grand Committee

[Viscount Camrose (Con)]

I am not sure I accept that it is “quite something”, in the noble Lord’s words. As and when the appropriate solution emerges, we will bring it forward—no doubt between Committee and Report.

On Amendment 115, we share the noble Lords’ feelings on the importance of redress for data subjects. That is why the Secretary of State must already consider the arrangements for redress for data subjects when making a data bridge. There is already an obligation for the Secretary of State to consult the ICO on these regulations. Similarly, when considering whether the data protection test is met before making a transfer subject to appropriate safeguards using Article 46, the Government expect that data exporters will also give consideration to relevant enforceable data subject rights and effective legal remedies for data subjects.

Our rules mean that companies that transfer UK personal data must uphold the high data protection standards we expect in this country. Otherwise, they face action from the ICO, which has powers to conduct investigations, issue fines and compel companies to take corrective action if they fail to comply. We will continue to monitor and mitigate a wide range of data security risks, regardless of provenance. If there is evidence of threats to our data, we will not hesitate to take the necessary action to protect our national security.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we heard from the two noble Lords some concrete examples of where those data breaches are already occurring, and it does not appear to me that appropriate action has been taken. There seems to be a mismatch between what the Minister is saying about the processes and the day-to-day reality of what is happening now. That is our concern, and it is not clear how the Government are going to address it.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Lord, Lord Bethell, and his cosignatories for bringing this comprehensive amendment before us this afternoon. As we have heard, this is an issue that was debated at length in the Online Safety Act. It is, in effect, unfinished business. I pay tribute to the noble Lords who shepherded that Bill through the House so effectively. It is important that we tie up the ends of all the issues. The noble Lord made significant progress, but those issues that remain unresolved come, quite rightly, before us now, and this Bill is an appropriate vehicle for resolving those outstanding issues.

As has been said, the heart of the problem is that tech companies are hugely protective of the data they hold. They are reluctant to share it or to give any insight on how their data is farmed and stored. They get to decide what access is given, even when there are potentially illegal consequences, and they get to judge the risk levels of their actions without any independent oversight.

During the course of the Online Safety Bill, the issue was raised not only by noble Lords but by a range of respected academics and organisations representing civil society. They supported the cross-party initiative from Peers calling for more independent research, democratic oversight and accountability into online safety issues. In particular, as we have heard, colleagues identified a real need for approved researchers to check the risks of non-compliance in the regulated sectors of UK law by large tech companies—particularly those with large numbers of children accessing the services. This arose because of the increasing anecdotal evidence that children’s rights were being ignored or exploited. The noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, have given an excellent exposition of the potential and real harms that continue to be identified by the lack of regulatory action on these issues.

Like other noble Lords, I welcome this amendment. It is well-crafted, takes a holistic approach to the problem, makes the responsibilities of the large tech companies clear and establishes a systematic research base of vetted researchers to check compliance. It also creates important criteria for the authorisation of those vetted researchers: the research must be in the public interest, must be transparent, must be carried out by respected researchers, and must be free from commercial interests so that companies cannot mark their own homework. As has been said, it mirrors the provisions in the EU Digital Services Act and ensures comparable research opportunities. That is an opportunity for the UK to maintain its status as one of the top places in the world for expertise on the impact of online harms.

Since the Online Safety Act was passed, the Information Commissioner has been carrying out further work on the children’s code of practice. The latest update report says:

“There has been significant progress and many organisations have started to assess and mitigate the potential privacy risks to children on their platforms”.


That is all well and good but the ICO and other regulators are still reliant on the information provided by the tech companies on how their data is used and stored and how they mitigate risk. Their responsibilities would be made much easier if they had access to properly approved and vetted independent research information that could inform their decisions.

I am grateful to noble Lords for tabling this amendment. I hope that the Minister hears its urgency and necessity and that he can assure us that the Government intend to table a similar amendment on Report—as the noble Baroness, Lady Kidron, said, no more “wait and see”. The time has come to stop talking about this issue and take action. Like the noble Lord, Lord Clement-Jones, I was in awe of the questions that the noble Baroness came up with and do not envy the Minister in trying to answer them all. She asked whether, if necessary, it could be done via a letter but I think that the time has come on this and some other issues to roll up our sleeves, get round the table and thrash it out. We have waited too long for a solution and I am not sure that exchanges of letters will progress this in the way we would hope. I hope that the Minister will agree to convene some meetings of interested parties—maybe then we will make some real progress.

[Viscount Camrose (Con)]

My Lords, as ever, many thanks to all noble Lords who spoke in the debate.

Amendment 135, tabled by my noble friend Lord Bethell, would enable researchers to access data from data controllers and processors in relation to systemic risks to the UK and non-compliance with regulatory law. The regime would be overseen by the ICO. Let me take this opportunity to thank both my noble friend for the ongoing discussions we have had and the honourable Members in the other place who are also interested in this measure.

Following debates during the passage of the Online Safety Act, the Government have been undertaking further work in relation to access to data for online safety researchers. This work is ongoing and, as my noble friend Lord Bethell will be aware, the Government are having ongoing conversations on this issue. As he knows, the online safety regime is very broad and covers issues that have an impact on national security and fraud. I intend to write to the Committee with an update on this matter, setting out our progress ahead of Report, which should move us forward.

While we recognise the benefits of improving researchers’ access to data—for example, using data to better understand the impact of social media on users—this is a highly complex issue with several risks that are not currently well understood. Further analysis has reiterated the complexities of the issue. My noble friend will agree that it is vital that we get this right and that any policy interventions are grounded in the evidence base. For example, there are risks in relation to personal data protection, user consent and the disclosure of commercially sensitive information. Introducing a framework to give researchers access to data without better understanding these risks could have significant consequences for data security and commercially sensitive information, and could potentially destabilise any data access regime as it is implemented.

In the meantime, the Online Safety Act will improve the information available to researchers by empowering Ofcom to require major providers to publish a broad range of online safety information through annual transparency reports. Ofcom will also be able to appoint a skilled person to undertake a report to assess compliance or to develop its understanding of the risk of non-compliance and how to mitigate it. This may include the appointment of independent researchers as skilled persons. Further, Ofcom is required to conduct research into online harms and has the power to require companies to provide information to support this research activity.

Moving on to the amendment specifically, it is significantly broader than online safety and the EU’s parallel Digital Services Act regime. Any data controllers and processors would be in scope if they have more than 1 million UK users or customers, if there is a large concentration of child users or if the service is high-risk. This would include not just social media platforms but any organisation, including those in financial services, broadcasting and telecoms as well as any other large businesses. Although we are carefully considering international approaches to this issue, it is worth noting that much of the detail about how the data access provisions in the Digital Services Act will work in practice is yet to be determined. Any policy interventions in this space should be predicated on a robust evidence base, which we are in the process of developing.

The amendment would also enable researchers to access data to research systemic risks to compliance with any UK regulatory law that is upheld by the ICO, Ofcom, the Competition and Markets Authority, and the Financial Conduct Authority. The benefits and risks of such a broad regime are not understood and are likely to vary across sectors. It is also likely to be inappropriate for the ICO to be the sole regulator tasked with vetting researchers across the remits of the other regulators. The ICO may not have the necessary expertise to make this determination about areas of law that it does not regulate.

Ofcom already has the power to gather information that it requires for the purpose of exercising its online safety functions. This power applies to companies in scope of the duties and, where necessary, to other organisations or persons who may have relevant information. Ofcom can also issue information request notices to overseas companies as well as to UK-based companies. The amendment is also not clear about the different types of information that a researcher may want to access. It refers to a data controller and processors—concepts that relate to the processing of personal data under data protection law—yet researchers may also be interested in other kinds of data, such as information about a service’s systems and processes.

Although the Government continue to consider this issue—I look forward to setting out our progress between now and Report—for the reasons I have set out, I am not able to accept this amendment. I will certainly write to the Committee on this matter and to the noble Baroness, Lady Kidron, with a more detailed response to her questions—there were more than four of them, I think—in particular those about Ofcom.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, for tabling these amendments and raising important points about the Information Commissioner’s independence and authority to carry out his role efficiently. The amendments from the noble Lord, Lord Clement-Jones, range widely, and I have to say that I have more sympathy with some of them than others.

I start by welcoming some of the things in the Bill—I am very pleased to be able to do this. It is important that we have an independent regulator that is properly accountable to Parliament, and this is vital for a properly functioning data protection regime. We welcome a number of the changes that have been made to the ICO’s role in the Bill. In particular, we think the move to have a board and a chief executive model, with His Majesty appointing the chair of the board, is the right way to go. We also welcome the strengthening of enforcement powers and the obligation to establish stakeholder panels to inform the content of codes of practice. The noble Baroness, Lady Kidron, also highlighted that.

However, we share the concern of the noble Lord, Lord Clement-Jones, about the Secretary of State’s requirement every three years to publish a statement of strategic priorities for the commissioner to consider, respond to and have regard to. We share his view, and that of many stakeholder groups, that this crosses the line into political involvement and exposes the ICO to unwarranted political direction and manipulation. We do not believe that this wording provides sufficient safeguards from that in its current form.

I have listened carefully to the explanation of the noble Lord, Lord Clement-Jones, of Amendment 138. I understand his concern, but we are going in a slightly different direction to him on this. We believe that the reality is that the ICO does not have the resources to investigate every complaint. He needs to apply a degree of strategic prioritisation in the public interest. I think that the original wording in the Bill, rather than the noble Lord’s amendment, achieved that objective more clearly.

Amendment 140, in the name of the noble Lord, Lord Clement-Jones, raises a significant point about businesses being given assured advice to ensure that they follow the procedures correctly, and we welcome that proposal. There is a role for leadership of the ICO in this regard. His proposal also addresses the Government’s concern that data controllers struggle to understand how they should be applying the rules. This is one of the reasons for many of the changes that we have considered up until now. I hope that the Minister will look favourably on this proposal and agree that we need to give more support to businesses in how they follow the procedures.

Finally, I have added my name to the amendment of the noble Baroness, Lady Kidron, which rightly puts a deadline on the production of any new codes of practice, and a deadline on the application of any transitional arrangements which apply in the meantime. We have started using the analogy of the codes losing their champions, and in general terms she is right. Therefore, it is useful to have a deadline, and that is important to ensure delivery. This seems eminently sensible, and I hope the Minister agrees with this too.

Amendment 150 from the noble Baroness, Lady Kidron, also requires the ICO annual report to spell out specifically the steps being taken to roll out the age-appropriate design code and to specifically uphold children’s data rights. Going back to the codes losing their champions, I am sure that the Minister got the message from the noble Baronesses, Lady Kidron and Lady Harding, that in this particular case, this is not going to happen, and that this code and the drive to deliver it will be with us for some time to come.

The noble Baroness, Lady Kidron, raised concerns about the approach of the ICO, which need to be addressed. We do not want a short-term approach but a longer-term approach, and we want some guarantees that the ICO is going to address some of the bigger issues that are being raised by the age-appropriate design code and other codes. Given the huge interest in the application of children’s data rights in this and other Bills, I am sure that the Information Commissioner will want to focus his report on his achievements in this space. Nevertheless, for the avoidance of doubt, it is useful to have it in the Bill as a specific obligation, and I hope the Minister agrees with the proposal.

We have a patchwork of amendments here. I am strongly in support of some; on others, perhaps the noble Lord and I can debate further outside this Room. In the meantime, I am interested to hear what the Minister has to say.

[Viscount Camrose (Con)]

I thank the noble Lord, Lord Clement-Jones, the noble Baroness, Lady Kidron, and other noble Lords who have tabled and signed amendments in this group. I also observe what a pleasure it is to be on a Committee with Batman and Robin—which I was not expecting to say, and which may be Hansard’s first mention of those two.

The reforms to the Information Commissioner’s Office within the Bill introduce a strategic framework of objectives and duties to provide context and clarity on the commissioner’s overarching objectives. The reforms also put best regulatory practice on to a statutory footing and bring the ICO’s responsibilities into line with that of other regulators.

With regard to Amendment 138, the principal objective upholds data protection in an outcomes-focused manner that highlights the discretion of the Information Commissioner in securing those objectives, while reinforcing the primacy of data protection. The requirement to promote trust and confidence in the use of data will encourage innovation across current and emerging technologies.

I turn now to the question of Clause 32 standing part. As part of our further reforms, the Secretary of State can prepare a statement of strategic priorities for data protection, which positions these aims within its wider policy agenda, thereby giving the commissioner helpful context for its activities. While the commissioner must take the statement into account when carrying out functions, they are not required to act in accordance with it. This means that the statement will not be used in a way to direct what the commissioner may and may not do when carrying out their functions.

Turning to Amendment 140, we believe that the commissioner should have full discretion to enforce data protection in an independent, flexible, risk-based and proportionate manner. This amendment would tie the hands of the regulator and force them to give binding advice and proactive assurance without necessarily full knowledge of the facts, undermining their regulatory enforcement role.

In response to the amendments concerning Clauses 33 to 35 standing part, I can say that we are introducing a series of measures to increase accountability, robustness and transparency in the codes of practice process, while safeguarding the Information Commissioner’s role. The requirements for impact assessments and panel of experts mean that the codes will consider the application to, and impact on, all potential use cases. Given that the codes will have the force of law, the Secretary of State must have the ability to give her or his comments. The Information Commissioner is required to consider but not to act on those comments, preserving the commissioner’s independence. It remains for Parliament to give approval for any statutory code produced.

Amendments 142 and 143 impose a requirement on the ICO to prepare codes and for the Secretary of State to lay them in Parliament as quickly as practicable. They also limit the time that transitional provisions can be in place to a maximum of 12 months. This could mean that drafting processes are truncated or valid concerns are overlooked to hit a statutory deadline, rather than the codes being considered properly to reflect the relevant perspectives.

Given the importance of ensuring that any new codes are robust, comprehensive and considered, we do not consider imposing time limits on the production of codes to be a useful tool.

Finally, Amendment 150—

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I have added my name to Amendment 146 in the name of the noble Baroness, Lady Kidron, and I thank all noble Lords who have spoken.

These days, most children learn to swipe an iPad long before they learn to ride a bike. They are accessing the internet at ever younger ages on a multitude of devices. Children are choosing to spend more time online, browsing social media, playing games and using apps. However, we also force children to spend an increasing amount of time online for their education. A growing trend over the last decade or more, this escalated during the pandemic. Screen time at home became lesson time; it was a vital educational lifeline for many in lockdown.

Like other noble Lords, I am not against edtech, but the reality is that the necessary speed of the transition meant that insufficient regard was paid to children’s rights and the data practices of edtech. The noble Baroness, Lady Kidron, as ever, has given us a catalogue of abuses of children’s data which have already taken place in schools, so there is a degree of urgency about this, and Amendment 146 seeks to rectify the situation.

One in five UK internet users are children. Schools are assessing their work online; teachers are using online resources and recording enormous amounts of sensitive data about every pupil. Edtech companies have identified that such a large and captive population is potentially profitable. This amendment reinforces that children are also a vulnerable population and that we must safeguard their data and personal information on this basis. Their rights should not be traded in as the edtech companies chase profits.

The code of practice proposed in this amendment establishes standards for companies to follow, in line with the fundamental rights and freedoms as set out in the UN Convention on the Rights of the Child. It asserts that they are entitled to a higher degree of protection than adults in the digital realm. It would oblige the commissioner to prepare a code of practice which ensures this. It underlines that consultations with individuals and organisations who have the best interests of children at heart is vital, so that the enormous edtech companies cannot bamboozle already overstretched teachers and school leaders.

In education, data has always been processed from children in school. It is necessary for the school’s functioning and to monitor the educational development of individual children. Edtech is now becoming a permanent fixture in children’s schooling and education, but it is largely untested, unregulated and unaccountable. Currently, it is impossible to know what data is collected by edtech providers and how they are using it. This blurs the boundaries between the privacy-preserving and commercial parts of services profiting from children’s data.

Why is this important? First, education data can reveal particularly sensitive and protected characteristics about children: their ethnicity, religion, disability or health status. Such data can also be used to create algorithms that profile children and predict or assess their academic ability and performance; it could reinforce prejudice, create siloed populations or entrench low expectations. Secondly, there is a risk that data-profiling children can lead to deterministic outcomes, defining too early what subjects a child is good at, how creative they are and what they are interested in. Safeguards must be put in place in relation to the processing of children’s personal data in schools to protect those fundamental rights. Thirdly, of course, is money. Data is appreciating in value, resulting in market pressure for data to be collected, processed, shared and reused. Increasingly, such data processed from children in schools is facilitated by edtech, an already major and expanding sector with a projected value of £3.4 billion.

The growth of edtech’s use in schools is promoted by the Department for Education’s edtech strategy, which sets out a vision for edtech to be an

“inseparable thread woven throughout the processes of teaching and learning”.

Yet the strategy gives little weight to data protection beyond noting the importance of preventing data breaching. Tech giants have become the biggest companies in the world because they own data on us. Schoolchildren have little choice as to their involvement with these companies in the classroom, so we have a moral duty to ensure that they are protected, not commodified or exploited, when learning. It must be a priority for the Government to keep emerging technologies in education under regular review.

Equally important is that the ICO should invest in expertise specific to the domain of education. By regularly reviewing emerging technologies—those already in use and those proposed for use—in education, and their potential risks and impacts, such experts could provide clear and timely guidance for schools to protect individual children and entire cohorts. Amendment 146 would introduce a new code of practice on the processing and use of children’s data by edtech providers. It would also ensure that edtech met their legal obligations under the law, protected children’s data and empowered schools.

I was pleased to hear that the noble Baroness, Lady Kidron, has had constructive discussions with the Education Minister, the noble Baroness, Lady Barran. The way forward on this matter is some sort of joint work between the two departments. The noble Baroness, Lady Kidron, said that she hopes the Minister today will respond with equal positivity; he could start by supporting the principles of this amendment. Beyond that, I hope that he will agree to liaise with the Department for Education and embrace the noble Baroness’s request for more meetings to discuss this issue on a joint basis.

[Viscount Camrose (Con)]

I am grateful, as ever, to the noble Baroness, Lady Kidron, for both Amendment 146 and her continued work in championing the protection of children.

Let me start by saying that the Government strongly agree with the noble Baroness that all providers of edtech services must comply with the law when collecting and making decisions about the use of children’s data throughout the duration of their processing activities. That said, I respectfully submit that this amendment is not necessary, for the reasons I shall set out.

The ICO already has existing codes and guidance for children and has set out guidance about how the children’s code, data protection and e-privacy legislation apply to edtech providers. Although the Government recognise the value that ICO codes can have in promoting good practice and improving compliance, they do not consider that it would be appropriate to add these provisions to the Bill without further detailed consultation with the ICO and the organisations likely to be affected by them.

The guidance covers broad topics, including choosing a lawful basis for the processing; rules around information society services; targeting children with marketing; profiling children or making automated decisions about them; data sharing; children’s data rights; and exemptions relating to children’s data. Separately, as we have discussed throughout this debate, the age-appropriate design code deals specifically with the provision of online services likely to be accessed by children in the UK; this includes online edtech services. I am pleased to say that the Department for Education has begun discussions with commercial specialists to look at strengthening the contractual clauses relating to the procurement of edtech resources to ensure that they comply with the standards set out in the UK GDPR and the age-appropriate design code.

On the subject of requiring the ICO to develop a report with the edtech sector, with a view to creating a certification scheme and assessing compliance and conformity with data protection, we believe that such an approach should be at the discretion of the independent regulator.

The issues that have been raised in this very good, short debate are deeply important. Edtech is an issue that the Government are considering carefully—especially the Department for Education, given the increasing time spent online for education. I note that the DPA 2018 already contains a power for the Secretary of State to request new codes of practice, which could include one on edtech if the evidence warranted it. I would be happy to return to this in future but consider the amendment unnecessary at this time. For the reasons I have set out, I am not able to accept the amendment and hope that the noble Baroness will withdraw it.

Data Protection and Digital Information Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Wednesday 27th March 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have contributed to this debate. We have had a major common theme, which is that any powers exercised by the Secretary of State in Clause 14 should be to enhance, rather than diminish, the protections for a data subject affected by automated decision-making. We have heard some stark and painful examples of the way in which this can go wrong if it is not properly regulated. As noble Lords have said, this seems to be regulation on automated decision-making by the backdoor, but with none of the protections and promises that have been made on this subject.

Our Amendment 59 goes back to our earlier debate about rights at work when automated decision-making is solely or partly in operation. It provides an essential underpinning of the Secretary of State’s powers. The Minister has argued that ADM is a new development and that it would be wrong to be too explicit about the rules that should apply as it becomes more commonplace, but our amendment cuts through those concerns by putting key principles in the Bill. They are timeless principles that should apply regardless of advances in the adoption of these new technologies. They address the many concerns raised by workers and their representatives, about how they might be disfranchised or exploited by machines, and put human contact at the heart of any new processes being developed. I hope that the Minister sees the sense of this amendment, which will provide considerable reassurance for the many people who fear the impact of ADM in their working lives.

I draw attention to my Amendments 58 and 73, which implement the recommendations of the Delegated Powers and Regulatory Reform Committee. In the Bill, the new Articles 22A to 22D enable the Secretary of State to make further provisions about safeguards when automated decision-making is in place. The current wording of new Article 22D makes it clear that regulations can be amended

“by adding or varying safeguards”.

The Delegated Powers Committee quotes the department saying that

“it does not include a power to remove safeguards provided in new Article 22C and therefore cannot be exercised to weaken the protections”

afforded to data subjects. The committee is not convinced that the department is right about this, and we agree with its analysis. Surely “vary” means that the safeguards can move in either direction—to improve or reduce protection.

The committee also flags up concerns that the Bill’s amendments to Sections 49 and 50 of the Data Protection Act make specific provision about the use of automated decision-making in the context of law enforcement processing. In this new clause, there is an equivalent wording, which is that the regulations may add or vary safeguards. Again, we agree with its concerns about the application of these powers to the Secretary of State. It is not enough to say that these powers are subject to the affirmative procedure because, as we know and have discussed, the limits on effective scrutiny of secondary legislation are manifest.

We have therefore tabled Amendments 58 and 73, which make it much clearer that the safeguards cannot be reduced by the Secretary of State. The noble Lord, Lord Clement-Jones, has a number of amendments with a similar intent, which is to ensure that the Secretary of State can add new safeguards but not remove them. I hope the Minister is able to commit to taking on board the recommendations of the Delegated Powers Committee in this respect.

The noble Baroness, Lady Kidron, once again made the powerful point that the Secretary of State’s powers to amend the Data Protection Act should not be used to reduce the hard-won standards and protections for children’s data. As she says, safeguards do not constitute a right, and having regard to the issues is a poor substitute for putting those rights back into the Bill. So I hope the Minister is able to provide some reassurance that the Bill will be amended to put these hard-won rights back into the Bill, where they belong.

I am sorry that the noble Lord, Lord Holmes, is not here. His amendment raises an important point about the need to build in the views of the Information Commissioner, which is a running theme throughout the Bill. He makes the point that we need to ensure, in addition, that a proper consultation of a range of stakeholders goes into the Secretary of State’s deliberations on safeguards. We agree that full consultation should be the hallmark of the powers that the Secretary of State is seeking, and I hope the Minister can commit to taking those amendments on board.

I echo the specific concerns of the noble Lord, Lord Clement-Jones, about the impact assessment and the supposed savings from changing the rules on subject access requests. This is not specifically an issue for today’s debate but, since it has been raised, I would like to know whether he is right that the savings are estimated to be 50% and not 1%, which the Minister suggested when we last debated this. I hope the Minister can clarify this discrepancy on the record, and I look forward to his response.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

I thank the noble Lords, Lord Clement-Jones and Lord Knight, my noble friend Lord Holmes and the noble Baronesses, Lady Jones, Lady Kidron and Lady Bennett—

--- Later in debate ---

[Viscount Camrose (Con)]

Indeed. That may well be the case, but how that regulatory instruction is expressed can be done in multiple ways. Let me continue; otherwise, I will run out of time.

[Baroness Jones of Whitchurch (Lab)]

I am having a senior moment as well. Where are the outcomes written? What are we measuring this against? I like the idea; it sounds great—management terminology—but I presume that it is written somewhere and that we could easily add children’s rights to the outcomes as the noble Baroness suggests. Where are they listed?

--- Later in debate ---

[Viscount Camrose (Con)]

I absolutely recognise the seriousness and importance of the points made by the noble Baroness. Of course, I would be happy to write to her and meet her, as I would be for any Member in the Committee, to give—I hope—more satisfactory answers on these important points.

As an initial clarification before I write, it is perhaps worth me saying that the ICO has a responsibility to keep guidance up to date but, because it is an independent regulator, it is not for the Government to prescribe this, only to allow it to do so for flexibility. As I say, I will write and set out that important point in more detail.

Amendment 59 relates to workplace rights. I reiterate that the existing data protection legislation and our proposed reforms—

[Baroness Jones of Whitchurch (Lab)]

Has the Minister moved on from our Amendments 58 and 59? He was talking about varying safeguards. I am not quite sure where he is.

[Viscount Camrose (Con)]

It is entirely my fault; when I sit down and stand up again, I lose my place.

We would always take the views of the DPRRC very seriously on that. Clearly, the Bill is being designed without the idea in mind of losing or diminishing any of those safeguards; otherwise, it would have simply said in the Bill that we could do that. I understand the concern that, by varying them, there is a risk that they would be diminished. We will continue to find a way to take into account the concerns that the noble Baroness has set out, along with the DPRRC. In the interim, let me perhaps provide some reassurance that that is, of course, not the intention.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have contributed to this very wide-ranging debate. Our amendments cover a lot of common ground, and we are in broad agreement on most issues, so I hope noble Lords will bear with me if I primarily focus on the amendments that I have tabled, although I will come back to other points.

We have given notice of our intention to oppose Clause 16 standing part of the Bill which is similar to Amendment 80 tabled by the noble Lord, Lord Clement-Jones, which probes why the Government have found it necessary to remove the requirement that companies outside the UK should appoint a representative within the UK. The current GDPR rules apply to all those active in the UK market, regardless of whether their organisation is based or located in the UK. The intention is that the representative will ensure UK compliance and act as a primary source of contact for data subjects. Without this clause, data subjects will be forced to deal with overseas data handlers, with all the cultural and language barriers that might ensue. There is no doubt that this will limit their rights to apply UK data standards.

In addition, as my colleagues in the Commons identified, the removal of the provisions in Clause 16 was not included in the Government’s consultation, so stakeholders have not had the chance to register some of the many practical concerns that they feel will arise from this change. There is also little evidence that compliance with Article 27 is an unnecessary barrier to responsible data use by reputable overseas companies. Again, this was a point made by the noble Lord, Lord Clement-Jones. In fact, the international trend is for more countries to add a representative obligation to their data protection laws, so we are becoming outriders on the global stage.

Not only is this an unnecessary change but, compared to other countries, it will send a signal that our data protection rights are being eroded in the UK. Of course, this raises the spectre of the EU revisiting whether our UK adequacy status should be retained. It also has implications for the different rules that might apply north and south of the border in Ireland so, again, if we are moving away from the standard rules applied by other countries, this has wider implications that we need to consider.

For many reasons, I challenge the Government to explain why this change was felt to be necessary. The noble Lord, Lord Clement-Jones, talked about whether the cost was really a factor. It did not seem that there were huge costs, compared to the benefits of maintaining the current system, and I would like to know in more detail why the Government are doing this.

Our Amendments 81 and 90 seek to ensure that there is a definition of “high-risk processing” in the Bill. The current changes in Clauses 17 and 20 have the effect of watering down data controllers’ responsibilities, from carrying out data protection impact assessments to assessing high-risk processing on the basis of whether it was necessary and what risks are posed. But nowhere does it say what constitutes high-risk processing—it is left to individual organisations to make that judgment—and nowhere does it explain what “necessary” means in this context. Is it also expected to be proportionate, as in the existing standards? This lack of clarity has caused some consternation among stakeholders.

The Equality and Human Rights Commission argues that the proposed wording means that

“data controllers are unlikely to go beyond minimum requirements”,

so the wording needs to be more explicit. It also recommends that

“the ICO be required to provide detailed guidance on how ‘the rights and freedoms of individuals’ are to be considered in an Assessment of High Risk Processing”.

More crucially, the ICO has written to Peers, saying that the Bill should contain a list of

“activities that government and Parliament view as high-risk processing, similar to the current list set out at Article 35(3) of the UK GDPR”.

This is what our Amendments 81 and 90 aim to achieve. I hope the Minister can agree to take these points on board and come back with amendments to achieve this.

The ICO also makes the case for future-proofing the way in which high-risk processing is regulated by making a provision in the Bill for the ICO to further designate high-risk processing activities with parliamentary approval. This would go further than the current drafting of Clause 20, which contains powers for the ICO to give examples of high-risk profiling, but only for guidance. Again, I hope that the Minister can agree to take these points on board and come back with suitable amendments.

Our Amendments 99, 100 and 102 specify the need for wider factors in the proposed risk assessment list to ensure that it underpins our equality laws. Again, this was an issue about which stakeholders have raised concerns. The TUC and the Institute for the Future of Work make the point that data protection impact assessments are a crucial basis for consultation with workers and trade unions about the use of technology at work, and this is even more important as the complexities of AI come on stream. The Public Law Project argues that, without rigorous risk and impact analysis, disproportionate and discriminatory processes could be carried out before the harm comes to light.

The Equality and Human Rights Commission argues that data protection impact assessments

“provide a key mechanism for ensuring equality impacts are assessed when public and private sector organisations embed AI systems in their operations”.

It specifically recommends that express references in Article 35(7) of GDPR to “legitimate interests” and

“the rights and freedoms of data subjects”,

as well as the consultation obligations in Article 35(2), should be retained. I hope that the Minister can agree to take these recommendations on board and come back with suitable amendments to ensure that our equalities legislation is protected.

Our Amendments 106 and 108 focus on the particular responsibilities of data controllers to handle health data with specific obligations. This is an issue that we know, from previous debates, is a major cause for concern among the general public, who would be alarmed if they thought that the protections were being weakened.

The BMA has raised concerns that Clauses 20 and 21 will water down our high standards of data governance, which are necessary when organisations are handling health data. As it says,

“Removing the requirement to conduct a thorough assessment of risks posed to health data is likely to lead to a less diligent approach to data protection for individuals”.


It also argues that removing the requirement for organisations to consult the ICO on high-risk processing is,

“a backward step from good governance … when organisations are processing large quantities of sensitive health data.

Our amendments aim to address these concerns by specifying that, with regard to specific cases, such as the handling of health data, prior consultation with the ICO should remain mandatory. I hope that the Minister will see the sense in these amendments and recognise that further action is needed in this Bill to maintain public trust in how health data is managed for individual care and systemwide scientific development.

I realise that we have covered a vast range of issues, but I want to touch briefly on those raised by the noble Baroness, Lady Kidron. She is right that, in particular, applications of risk assessments by public bodies should be maintained, and we agree with her that Article 35’s privacy-by-design requirements should be retained. She once again highlighted the downgrading of children’s rights in this Bill, whether by accident or intent, and we look forward to seeing the exchange of letters with the Minister on this. I hope that we will all be copied in and that the Minister will take on board the widespread view that we should have more engagement on this before Report, because there are so many outstanding issues to be resolved. I look forward to the Minister’s response.

[Viscount Camrose (Con)]

I thank the noble Baronesses, Lady Kidron and Lady Jones, and the noble Lord, Lord Clement-Jones, for their amendments, and I look forward to receiving the letter from the noble Baroness, Lady Kidron, which I will respond to as quickly as I can. As everybody observed, this is a huge group, and it has been very difficult for everybody to do justice to all the points. I shall do my best, but these are points that go to the heart of the changes we are making. I am very happy to continue engaging on that basis, because we need plenty of time to review them—but, that said, off we go.

The changes the Government are making to the accountability obligations are intended to make the law clearer and less prescriptive. They will enable organisations to focus on areas that pose high risks to people resulting, the Government believe, in improved outcomes. The new provisions on assessments of high-risk processing are less prescriptive about the precise circumstances in which a risk assessment would be required, as we think organisations are best placed to judge whether a particular activity poses a high risk to individuals in the context of the situation.

However, the Government are still committed to high standards of data protection, and there are many similarities between our new risk assessment measures and the previous provisions. When an organisation is carrying out processing activities that are likely to pose a high risk to individuals, it will still be expected to document that processing, assess risks and identify mitigations. As before, no such document would be required where organisations are carrying out low-risk processing activities.

One of the main aims of the Bill is to remove some of the UK GDPR’s unnecessary compliance burdens. That is why organisations will be required to designate senior responsible individuals, keep records of processing and carry out the risk assessments above only when their activities pose high risks to individuals.

--- Later in debate ---

[Viscount Camrose (Con)]

That is a very interesting question, but I am not sure that there is a read-across between the AI Act and our approach here. The fundamental starting point was that, although the provisions of the original GDPR are extremely important, the burdens of compliance were not proportionate to the results. The overall foundation of the DPDI is, while at least maintaining existing levels of protection, to reduce the burdens of demonstrating or complying with that regulation. That is the thrust of it—that is what we are trying to achieve—but noble Lords will have different views about how successful we are being at either of those. It is an attempt to make it easier to be safe and to comply with the regulations of the DPDI and the other Acts that govern data protection. That is where we are coming from and the thrust of what we are trying to achieve.

I note that, as we have previously discussed, children need particular protection when organisations are collecting and processing their personal data.

[Baroness Jones of Whitchurch (Lab)]

I did not interrupt before because I thought that the Minister would say more about the difference between high-risk and low-risk processing, but he is going on to talk about children. One of my points was about the request from the Information Commissioner—it is very unusual for him to intervene. He said that a list of high-risk processing activities should be set out in the Bill. I do not know whether the Minister was going to address that important point.

[Viscount Camrose (Con)]

I will briefly address it now. Based on that letter, the Government’s view is to avoid prescription and I believe that the ICO’s view— I cannot speak for it—is generally the same, except for a few examples where prescription needs to be specified in the Bill. I will continue to engage with the ICO on where exactly to draw that line.

--- Later in debate ---

[Viscount Camrose (Con)]

No, I do not accept that at all. I would suggest that we are saying to businesses, “You must provide access to the ICO and data subjects in a way that is usable by all parties, but you must do so in the manner that makes the most sense to you”. That is a good example of going after outcomes but not insisting on any particular process or methodology in a one-size-fits-all way.

[Baroness Jones of Whitchurch (Lab)]

The Minister mentioned the freedom to choose the best solution. Would it be possible for someone to be told that their contact was someone who spoke a different language to them? Do they have to be able to communicate properly with the data subjects in this country?

[Viscount Camrose (Con)]

Yes—if the person they were supposed to communicate with did not speak English or was not available during reasonable hours, that would be in violation of the requirement.

I apologise if we briefly revisit some of our earlier discussion here, but Amendment 81 would reintroduce a list of high-risk processing activities drawn from Article 35 of the UK GDPR, with a view to helping data controllers comply with the new requirements around designating a senior responsible individual.

The Government have consulted closely with the ICO throughout the development of all the provisions in the Bill, and we welcome its feedback as it upholds data subjects’ rights. We recognise and respect that the ICO’s view on this issue is different to the Government’s, but the Government feel that adding a prescriptive list to the legislation would not be appropriate for the reasons we have discussed. However, as I say, we will continue to engage with it over the course of the passage of the Bill.

Some of the language in Article 35 of the UK GDPR is unclear and confusing, which is partly why we removed it in the first place. We believe organisations should have the ability to make a judgment of risk based on the specific nature, scale and context of their own processing activities. We do not need to provide prescriptive examples of high-risk processing on the face of legislation because any list could quickly become out of date. Instead, to help data controllers, Clause 20 requires the ICO to produce a document with examples of what the commissioner considers to be high-risk processing activities.

I turn to Clause 17 and Amendment 82. The changes we are making in the Bill will reduce prescription by removing the requirement to appoint a data protection officer in certain circumstances. Instead, public bodies and other organisations carrying out high-risk processing activities will have to designate a senior responsible individual to ensure that data protection risks are managed effectively within their organisations. That person will have flexibility about how they manage data protection risks. They might decide to delegate tasks to independent data protection experts or upskill existing staff members, but they will not be forced to appoint data protection officers if suitable alternatives are available.

The primary rationale for moving to a senior responsible individual model is to embed data protection at the heart of an organisation by ensuring that someone in senior management takes responsibility and accountability for it if the organisation is a public body or is carrying out high-risk processing. If organisations have already appointed data protection officers and want to keep an independent expert to advise them, they will be free to do so, providing that they also designate a senior manager to take overall accountability and provide sufficient support, including resources.

Amendment 83, tabled by the noble Baroness, Lady Kidron, would require the senior responsible individual to specifically consider the risks to children when advising the controller on its responsibilities. As drafted, Clause 17 of the Bill requires the senior responsible individual to perform a number of tasks or, if they cannot do so themselves, to make sure that they are performed by another person. They include monitoring the controller’s compliance with the legislation, advising the controller of its obligations and organising relevant training for employees who carry out the processing of personal data. Where the organisation is processing children’s data, all these requirements will be relevant. The senior responsible individual will need to make sure that any guidance and training reflects the type of data being processed and any specific obligations the controller has in respect of that data. I hope that this goes some way to convincing the noble Baroness not to press her amendment.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

The Minister has reached his 20 minutes. We nudged him at 15 minutes.

[Viscount Camrose (Con)]

Do I have to shut up?

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

As long as that applies to us on occasion as well.

[Viscount Camrose (Con)]

I apologise for going over. I will try to be as quick as possible.

I turn now to the amendments on the new provisions on assessments of high-risk processing in Clause 20. Amendments 87, 88, 89, 91, 92, 93, 94, 95, 97, 98 and 101 seek to reinstate requirements in new Article 35 of the UK GDPR on data protection impact assessments, and, in some areas, make them even more onerous for public authorities. Amendment 90 seeks to reintroduce a list of high-risk processing activities drawn from new Article 35, with a view to help data controllers comply with the new requirements on carrying out assessments of high-risk processing.

Amendment 96, tabled by the noble Baroness, Lady Kidron, seeks to amend Clause 20, so that, where an internet service is likely to be accessed by children, the processing is automatically classed as high risk and the controller must do a children’s data protection impact assessment. Of course, I fully understand why the noble Baroness would like those measures to apply automatically to organisations processing children’s data, and particularly to internet services likely to be accessed by children. It is highly likely that many of the internet services that she is most concerned about will be undertaking high-risk activities, and they would therefore need to undertake a risk assessment.

Under the current provisions in Clause 20, organisations will still have to undertake risk assessments where their processing activities are likely to pose high risks to individuals, but they should have the ability to assess the level of risk based on the specific nature, scale and context of their own processing activities. Data controllers do not need to be directed by government or Parliament about every processing activity that will likely require a risk assessment, but the amendments would reintroduce a level of prescriptiveness that we were seeking to remove.

Clause 20 requires the ICO to publish a list of examples of the types of processing activities that it considers would pose high risks for the purposes of these provisions, which will help controllers to determine whether a risk assessment is needed. This will provide organisations with more contemporary and practical help than a fixed list of examples in primary legislation could. The ICO will be required to publish a document with a list of examples that it considers to be high-risk processing activities, and we fully expect the vulnerability age of data subjects to be a feature of that. The commissioner’s current guidance on data protection impact assessments already describes the use of the personal data of children or other vulnerable individuals for marketing purposes, profiling or offering internet services directly to children as examples of high-risk processing, although the Government cannot of course tell the ICO what to include in its new guidance.

Similarly, in relation to Amendments 99, 100 and 102 from the noble Baroness, Lady Jones, it should not be necessary for this clause to specifically require organisations to consider risks associated with automated decision-making or obligations under equalities legislation. That is because the existing clause already requires controllers to consider any risks to individuals and to describe

“how the controller proposes to mitigate those risks”.

I am being asked to wrap up and so, in the interests of time, I shall write with my remaining comments. I have no doubt that noble Lords are sick of the sound of my voice by now.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I, too, will be relatively brief. I thank the noble Baroness, Lady Kidron, for her amendments, to which I was very pleased to add my name. She raised an important point about the practice of web scrapers, who take data from a variety of sources to construct large language models without the knowledge or permission of web owners and data subjects. This is a huge issue that should have been a much more central focus of the Bill. Like the noble Baroness, I am sorry that the Government did not see fit to use the Bill to bring in some controls on this increasingly prevalent practice, because that would have been a more constructive use of our time than debating the many unnecessary changes that we have been debating so far.

As the noble Baroness said, large language models are built on capturing text, data and images from infinite sources without the permission of the original creator of the material. As she also said, it is making a mockery of our existing data rights. It raises issues around copyright and intellectual property, and around personal information that is provided for one purpose and commandeered by web scrapers for another. That process often happens in the shadows, whereby the owner of the information finds out only much later that their content has been repurposed.

What is worse is that the application of AI means that material provided in good faith can be distorted or corrupted by the bots scraping the internet. The current generation of LLMs are notorious for hallucinations in which good quality research or journalistic copy is misrepresented or misquoted in its new incarnation. There are also numerous examples of bias creeping into the LLM output, which includes personal data. As the noble Baroness rightly said, the casual scraping of children’s images and data is undermining the very essence of our existing data protection legislation.

It is welcome that the Information Commissioner has intervened on this. He argued that LLMs should be compliant with the Data Protection Act and should evidence how they are complying with their legal obligations. This includes individuals being able to exercise their information rights. Currently, we are a long way from that being a reality and a practice. This is about enforcement as much as giving guidance.

I am pleased that the noble Baroness tabled these amendments. They raise important issues about individuals giving prior permission for their data to be used unless there is an easily accessible opt-out mechanism. I would like to know what the Minister thinks about all this. Does he think that the current legislation is sufficient to regulate the rise of LLMs? If it is not, what are the Government doing to address the increasingly widespread concerns about the legitimacy of web scraping? Have the Government considered using the Bill to introduce additional powers to protect against the misuse of personal and creative output?

In the meantime, does the Minister accept the amendments in the name of the noble Baroness, Lady Kidron? As we have said, they are only a small part of a much bigger problem, but they are a helpful initiative to build in some basic protections in the use of personal data. This is a real challenge to the Government to step up to the mark and be seen to address these important issues. I hope the Minister will say that he is happy to work with the noble Baroness and others to take these issues forward. We would be doing a good service to data citizens around the country if we did so.

[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for tabling these amendments. I absolutely recognise their intent. I understand that they are motivated by a concern about invisible types of processing or repurposing of data when it may not be clear to people how their data is being used or how they can exercise their rights in respect of the data.

On the specific points raised by noble Lords about intellectual property rather than personal data, I note that, in their response to the AI White Paper consultation, the Government committed soon to provide a public update on their approach to AI and intellectual property, noting the importance of greater transparency in the use of copyrighted material to train models, as well as labelling and attribution of outputs.

Amendment 103 would amend the risk-assessment provisions in Clause 20 so that any assessment of high-risk processing would always include an assessment of how the data controller would comply with the purpose limitation principle and how any new processing activity would be designed so that people could exercise their rights in respect of the data at the time it was collected and at any subsequent occasion.

I respectfully submit that this amendment is not necessary. The existing provisions in Clause 20, on risk assessments, already require controllers to assess the potential risks their processing activities pose to individuals and to describe how those risks would be mitigated. This would clearly include any risk that the proposed processing activities would not comply with the data protection principles—for example, because they lacked transparency—and would make it impossible for people to exercise their rights.

Similarly, any assessment of risk would need to take account of any risks related to difficulties in complying with the purpose limitation principle—for example, if the organisation had no way of limiting who the data would be shared with as a result of the proposed processing activity.

According to draft ICO guidance on generative AI, the legitimate interests lawful ground under Article 6(1)(f) of the UK GDPR can be a valid lawful ground for training generative AI models on web-scrape data, but only when the model’s developer can ensure that they pass the three-part test—that is, they identify a legitimate interest, demonstrate that the processing is necessary for that purpose and demonstrate that the individual’s interests do not override the interest being pursued by the controller.

Controllers must consider the balancing test particularly carefully when they do not or cannot exercise meaningful control over the use of the model. The draft guidance further notes that it would be very difficult for data controllers to carry out their processing activities in reliance on the legitimate interests lawful ground if those considerations were not taken into account.

Data Protection and Digital Information Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Monday 25th March 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, may I just revisit that with the Minister? I fear that he is going to move on to another subject. The Delegated Powers Committee said that it thought that the Government had not provided strong enough reasons for needing this power. The public interest list being proposed, which the Minister outlined, is quite broad, so it is hard to imagine the Government wanting something not already listed. I therefore return to what the committee said. Normally, noble Lords like to listen to recommendations from such committees. There is no strong reason for needing that extra power, so, to push back a little on the Minister, why, specifically, is it felt necessary? If it were a public safety interest, or one of the other examples he gave, it seems to me that that would come under the existing list of public interests.

[Viscount Camrose (Con)]

Indeed. Needless to say, we take the recommendations of the DPRRC very seriously, as they deserve. However, because this is an exhaustive list, and because the technologies and practices around data are likely to evolve very rapidly in ways we are unable currently to predict, it is important to retain as a safety measure the ability to update that list. That is the position the Government are coming from. We will obviously continue to consider the DPRRC’s recommendations, but that has to come with a certain amount of adaptiveness as we go. Any addition to the list would of course be subject to parliamentary debate, via the affirmative resolution procedure, as well as the safeguards listed in the provision itself.

Clause 50 ensures that the ICO and any other interested persons should be consulted before making regulations.

Amendments 15, 16, 17 and 18 would amend the part of Clause 5 that is concerned with the types of activities that might be carried out under the current legitimate interest lawful ground, under Article 6(1)(f). Amendment 15 would prevent direct marketing organisations relying on the legitimate interest lawful ground under Article 6(1)(f) if the personal data being processed related to children. However, the age and vulnerability in general of data subjects is already an important factor for direct marketing organisations when considering whether the processing is justified. The ICO already provides specific guidance for controllers carrying out this balancing test in relation to children’s data. The fact that a data subject is a child, and the age of the child in question, will still be relevant factors to take into account in this process. For these reasons, the Government consider this amendment unnecessary.

--- Later in debate ---

[Viscount Camrose (Con)]

I would of course be very happy to continue to engage with the Electoral Commission.

We will continue to work with the ICO to make sure that it is familiar with the plans for commencement and that its plans for guidance fit into that. In parts of the UK where the voting age is 18 and the age of attainment is 16, it would be more difficult for candidates and parties to show that it was necessary or proportionate to process the personal data of 14 and 15 year-olds in reliance on the new lawful ground. In this context, creating an arbitrary distinction between children at or approaching voting age and adults may not be appropriate; in particular, many teenagers approaching voting age may be more politically engaged than some adults. These measures will give parties and candidates a clear lawful ground for engaging them in the process. Accepting this amendment would remove the benefits of greater ease of identification of a lawful ground for processing by elected representatives, candidates and registered political parties, which is designed to improve engagement with the electorate. I therefore hope that the noble Baroness, Lady Jones, will withdraw her amendment.

I now come to the clause stand part notice that would remove Clause 114, which gives the Secretary of State a power to make exceptions to the direct marketing rules for communications sent for the purposes of democratic engagement. As Clause 115 defines terms for the purposes of Clause 114, the noble Baroness, Lady Jones, is also seeking for that clause to be removed. Under the current law, many of the rules applying to electronic communications sent for commercial marketing apply to messages sent by registered political parties, elected representatives and others for the purposes of democratic engagement. It is conceivable that, after considering the risks and benefits, a future Government might want to treat communications sent for the purposes of democratic engagement differently from commercial marketing. For example, in areas where voter turnout is particularly low or there is a need to increase engagement with the electoral process, a future Government might decide that the direct marketing rules should be modified. This clause stand part notice would remove that option.

We have incorporated several safeguards that must be met prior to regulations being laid under this clause. They include the Secretary of State having specific regard to the effect the exceptions could have on an individual’s privacy; a requirement to consult the Information Commissioner and other interested parties, as the Secretary of State considers appropriate; and the regulations being subject to parliamentary approval via the affirmative procedure.

For these reasons, I hope that the noble Baroness will agree to withdraw or not press her amendments.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am pleased that I have sparked such a lively debate. When I tabled these amendments, it was only me and the noble Lord, Lord Clement-Jones, so I thought, “This could be a bit sad, really”, but it has not been. Actually, it has been an excellent debate and we have identified some really good issues.

As a number of noble Lords said, the expression “democratic engagement” is weasel words: what is not to like about democratic engagement? We all like it. Only when you drill down into the proposals do you realise the traps that could befall us. As noble Lords and the noble Baroness, Lady Bennett, rightly said, we have to see this in the context of some of the other moves the Government are pursuing in trying to skew the electoral rules in their favour. I am not convinced that this is as saintly as the Government are trying to pretend.

The noble Baroness, Lady Harding, is absolutely right: this is about trust. It is about us setting an example. Of all the things we can do on data protection that we have control over, we could at least show the electorate how things could be done, so that they realise that we, as politicians, understand how precious their data is and that we do not want to misuse it.

I hope we have all knocked on doors, and I must say that I have never had a problem engaging with the electorate, and actually they have never had a problem engaging with us. This is not filling a gap that anybody has identified. We are all out there and finding ways of communicating that, by and large, I would say the electorate finds perfectly acceptable. People talk to us, and they get the briefings through the door. That is what they expect an election campaign to be about. They do not expect, as the noble Baroness, Lady Harding, said, to go to see their MP about one thing and then suddenly find that they are being sent information about something completely different or that assumptions are being made about them which were never the intention when they gave the information in the first place. I just feel that there is something slightly seedy about all this. I am sorry that the Minister did not pick up a little more on our concerns about all this.

There are some practical things that I think it was helpful for us to have talked about, such as the Electoral Commission. I do not think that it has been involved up to now. I would like to know in more detail what its views are on all this. It is also important that we come back to the Information Commissioner and check in more detail what his view is on all this. It would be nice to have guidance, but I do not think that that will be enough to satisfy us in terms of how we proceed with these amendments.

The Minister ultimately has not explained why this has been introduced at this late stage. He is talking about this as though conceivably, in the future, a Government might want to adopt these rules. If that is the case, I respectfully say that we should come back at that time with a proper set of proposals that go right through the democratic process that we have here in Parliament, scrutinise it properly and make a decision then, rather than being bounced into something at a very late stage.

I have to say that I am deeply unhappy at what the Minister has said. I will obviously look at Hansard, but I may well want to return to this.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I can also be relatively brief. I thank all noble Lords who have spoken and the noble Baroness, Lady Harding, and the noble Lord, Lord Clement-Jones, for their amendments, to many of which I have added my name.

At the heart of this debate is what constitutes a disproportionate or impossibility exemption for providing data to individuals when the data is not collected directly from data subjects. Amendments 29 to 33 provide further clarity on how exemptions on the grounds of disproportionate effort should be interpreted —for example, by taking into account whether there would be a limited impact on individuals, whether they would be caused any distress, what the exemptions were in the first place and whether the information had been made publicly available by a public body. All these provide some helpful context, which I hope the Minister will take on board.

I have also added my name to Amendments 27 and 28 from the noble Baroness, Lady Harding. They address the particular concerns about those using the open electoral register for direct marketing purposes. As the noble Baroness explained, the need for this amendment arises from the legal ruling that companies using the OER must first notify individuals at their postal addresses whenever their data is being used. As has been said, given that individuals already have an opt-out when they register on the electoral roll, it would seem unnecessary and impractical for companies using the register to follow up with individuals each time they want to access their data. These amendments seek to close that loophole and return the arrangements back to the previous incarnation, which seemed to work well.

All the amendments provide useful forms of words but, as the noble Baroness, Lady Harding, said, if the wording is not quite right, we hope that the Minister will help us to craft something that is right and that solves the problem. I hope that he agrees that there is a useful job of work to be done on this and that he provides some guidance on how to go about it.

[Viscount Camrose (Con)]

I thank my noble friend Lady Harding for moving this important amendment. I also thank the cosignatories—the noble Lords, Lord Clement-Jones and Lord Black, and the noble Baroness, Lady Jones. As per my noble friend’s request, I acknowledge the importance of this measure and the difficulty of judging it quite right. It is a difficult balance and I will do my best to provide some reassurance, but I welcomed hearing the wise words of all those who spoke.

I turn first to the clarifying Amendments 27 and 32. I reassure my noble friend Lady Harding that, in my view, neither is necessary. Clause 11 amends the drafting of the list of cases when the exemption under Article 14(5) applies but the list closes with “or”, which makes it clear that you need to meet only one of the criteria listed in paragraph (5) to be exempt from the transparency requirements.

I turn now to Amendments 28 to 34, which collectively aim to expand the grounds of disproportionate effort to exempt controllers from providing certain information to individuals. The Government support the use of public data sources, such as the OER, which may be helpful for innovation and may have economic benefits. Sometimes, providing this information is simply not possible or is disproportionate. Existing exemptions apply when the data subject already has the information or in cases where personal data has been obtained from someone other than the data subject and it would be impossible to provide the information or disproportionate effort would be required to do so.

We must strike the right balance between supporting the use of these datasets and ensuring transparency for data subjects. We also want to be careful about protecting the integrity of the electoral register, open or closed, to ensure that it is used within the data subject’s reasonable expectations. The exemptions that apply when the data subject already has the information or when there would be a disproportionate effort in providing the information must be assessed on a case-by-case basis, particularly if personal data from public registers is to be combined with other sources of personal data to build a profile for direct marketing.

These amendments may infringe on transparency—a key principle in the data protection framework. The right to receive information about what is happening to your data is important for exercising other rights, such as the right to object. This could be seen as going beyond what individuals might expect to happen to their data.

The Government are not currently convinced that these amendments would be sufficient to prevent negative consequences to data subject rights and confidence in the open electoral register and other public registers, given the combination of data from various sources to build a profile—that was the subject of the tribunal case being referenced. Furthermore, the Government’s view is that there is no need to amend Article 14(6) explicitly to include the “reasonable expectation of the data subjects” as the drafting already includes reference to “appropriate safeguards”. This, in conjunction with the fairness principle, means that data controllers are already required to take this into account when applying the disproportionate effort exemption.

The above notwithstanding, the Government understand that the ICO may explore this question as part of its work on guidance in the future. That seems a better way of addressing this issue in the first instance, ensuring the right balance between the use of the open electoral register and the rights of data subjects. We will continue to work closely with the relevant stakeholders involved and monitor the situation.

Data Protection and Digital Information Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Wednesday 20th March 2024 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to all noble Lords who have spoken on this group. Amendment 6 to Clause 2, tabled by the noble Lord, Lord Clement-Jones, rightly tests the boundaries on the use of personal data for scientific research and, as he says, begins to ask, “What is the real purpose of this clause? Is it the clarification of existing good practice or is it something new? Do we fully understand what that new proposition is?”

As he said, there is particular public concern about the use of personal health data where it seems that some private companies are stretching the interpretation of “the public good”, for which authorisation for the use of this data was initially freely given, to something much wider. Although the clause seeks to provide some reassurance on this, we question whether it goes far enough and whether there are sufficient protections against the misuse of personal health data in the way the clause is worded.

This raises the question of whether it is only public health research that needs to be in the public interest, which is the way the clause is worded at the moment, because it could equally apply to research using personal data from other public services, such as measuring educational outcomes or accessing social housing. There is a range of uses for personal data. In an earlier debate, we heard about the plethora of data already held on people, much of which individuals do not understand or know about and which could be used for research or to make judgments about them. So we need to be sensitive about the way this might be used. It would be helpful to hear from the Minister why public health research has been singled out for special attention when, arguably, it should be a wider right across the board.

Noble Lords have asked questions about the wider concerns around Clause 2, which could enable private companies to use personal data to develop new products for commercial benefit without needing to inform the data subjects. As noble Lords have said, this is not what people would normally expect to be described as “scientific research”. The noble Baroness, Lady Kidron, was quite right that it has the potential to be unethical, so we need some standards and some clear understanding of what we mean by “scientific research”.

That is particularly important for Amendments 7 and 132 to 134 in the name of the noble Lord, Lord Clement-Jones, which underline the need for data subjects to be empowered and given the opportunity to object to their data being used for a new purpose. Arguably, without these extra guarantees—particularly because there is a lack of trust about how a lot of this information is being used—data subjects will be increasingly reluctant to hand over personal data on a voluntary basis in the first place. It may well be that this is an area where the Information Commissioner needs to provide additional advice and guidance to ensure that we can reap the benefits of good-quality scientific research that is in the public interest and in which the citizens involved can have absolute trust. Noble Lords around the Room have stressed that point.

Finally, we have added our names to the amendments tabled by the noble Baroness, Lady Kidron, on the use of children’s data for scientific research. As she rightly points out, the 2018 Act gave children a higher standard of protection on the uses for which their data is collected and processed. It is vital that this Bill, for all its intents to simplify and water down preceding rights, does not accidentally put at risk the higher protection agreed for children. In the earlier debate, the Minister said that he believed it will not do so. I am not sure that “believe” is a strong enough word here; we need guarantees that go beyond that. I think that this is an issue we will come back to again and again in terms of what is in the Bill and what guarantees exist for that protection.

In particular, there is a concern that relaxing the legal basis on which personal data can be processed for scientific research, including privately funded research carried out by commercial entities, could open the door for children’s data to be exploited for commercial purposes. We will consider the use of children’s data collected in schools in our debate on a separate group but we clearly need to ensure that the handling of pupils’ data by the Department for Education and the use of educational apps by private companies do not lead to a generation of exploited children who are vulnerable to direct marketing and manipulative messaging. The noble Baroness’s amendments are really important in this regard.

I also think that the noble Baroness’s Amendment 145 is a useful initiative to establish a code of practice on children’s data and scientific research. It would give us an opportunity to balance the best advantages of children’s research, which is clearly in the public and personal interest, with the maintenance of the highest level of protection from exploitation.

I hope that the Minister can see the sense in these amendments. In particular, I hope that he will take forward the noble Baroness’s proposals and agree to work with us on the code of practice principles and to put something like that in the Bill. I look forward to his response.

[Viscount Camrose (Con)]

I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for this series of amendments.

I will first address Amendment 6, which seeks to amend Clause 2. As the noble Lord said, the definitions created by Clause 2, including “scientific research purposes”, are based on the current wording in recital 159 to the UK GDPR. We are changing not the scope of these definitions but their legal status. This amendment would require individual researchers to assess whether their research should be considered to be in the public interest, which could create uncertainty in the sector and discourage research. This would be more restrictive than the current position and would undermine the Government’s objectives to facilitate scientific research and empower researchers.

We have maintained a flexible scope as to what is covered by “scientific research” while ensuring that the definition is still sufficiently narrow in that it can cover only what would reasonably be seen as scientific research. This is because the legislation needs to be able to adapt to the emergence of new areas of innovative research. Therefore, the Government feel that it is more appropriate for the regulator to add more nuance and context to the definition. This includes the types of processing that are considered—

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am also pleased to support these amendments in the name of the noble Baroness, Lady Kidron, to which I have added my name. I am hugely enthusiastic about them, too, and think that this has been a lightbulb moment from the noble Baroness. I very much thank her for doing all of this background work because she has identified the current weakness in the data protection landscape: it is currently predicated on an arrangement between an individual and the organisation that holds their data.

That is an inherently unbalanced power construct. As the noble Baroness said, as tech companies become larger and more powerful, it is not surprising that many individuals feel overwhelmed by the task of questioning or challenging those that are processing their personal information. It assumes a degree of knowledge about their rights and a degree of digital literacy, which we know many people do not possess.

In the very good debate that we had on digital exclusion a few weeks ago, it was highlighted that around 2.4 million people are unable to complete a single basic task to get online, such as opening an internet browser, and that more than 5 million employed adults cannot complete essential digital work tasks. These individuals cannot be expected to access their digital data on their own; they need the safety of a larger group to do so. We need to protect the interests of an entire group that would otherwise be locked out of the system.

The noble Baroness referred to the example of Uber drivers who were helped by their trade union to access their data, sharing patterns of exploitation and subsequently strengthening their employment package, but this does not have to be about just union membership; it could be about the interests of a group of public sector service users who want to make sure that they are not being discriminated against, a community group that wants its bid for a local grant to be treated fairly, and so on. We can all imagine examples of where this would work in a group’s interest. As the noble Baroness said, these proposals would allow any group of people to assign their rights—rights that are more powerful together than apart.

There could be other benefits; if data controllers are concerned about the number of individual requests that they are receiving for data information—and a lot of this Bill is supposed to address that extra work—group requests, on behalf of a data community, could provide economies of scale and make the whole system more efficient.

Like the noble Baroness, I can see great advantages from this proposal; it could lay the foundation for other forms of data innovation and help to build trust with many citizens who currently see digitalisation as something to fear—this could allay those fears. Like the noble Lord, Lord Clement-Jones, I hope the Minister can provide some reassurance that the Government welcome this proposal, take it seriously and will be prepared to work with the noble Baroness and others to make it a reality, because there is the essence of a very good initiative here.

[Viscount Camrose (Con)]

I thank the noble Baroness, Lady Kidron, for raising this interesting and compelling set of ideas. I turn first to Amendments 10 and 35 relating to data communities. The Government recognise that individuals need to have the appropriate tools and mechanisms to easily exercise their rights under the data protection legislation. It is worth pointing out that current legislation does not prevent data subjects authorising third parties to exercise certain rights. Article 80 of the UK GDPR also explicitly gives data subjects the right to appoint not-for-profit bodies to exercise certain rights, including their right to bring a complaint to the ICO, to appeal against a decision of the ICO or to bring legal proceedings against a controller or processor and the right to receive compensation.

The concept of data communities exercising certain data subject rights is closely linked with the wider concept of data intermediaries. The Government recognise the existing and potential benefits of data intermediaries and are committed to supporting them. However, given that data intermediaries are new, we need to be careful not to distort the sector at such an early stage of development. As in many areas of the economy, officials are in regular contact with businesses, and the data intermediary sector is no different. One such engagement is the DBT’s Smart Data Council, which includes a number of intermediary businesses that advise the Government on the direction of smart data policy. The Government would welcome further and continued engagement with intermediary businesses to inform how data policy is developed.

Digital Markets, Competition and Consumers Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Wednesday 31st January 2024 Grand Committee

[Viscount Camrose (Con)]

I will actively seek a counterexample and consider the implications of my results.

The CMA has a strong track record of following best regulatory practice across all its functions as an experienced regulator. The Government’s view is therefore that it makes sense to legislate only when it is necessary to do so, and that here there does not appear to be a problem that requires a legislative solution. For these reasons, I hope the noble Baroness feels able to withdraw her amendment.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have spoken in support of my amendment. I am very grateful. A number of passionate contributions were made. Once again, I was impressed by the knowledge of the noble Lord, Lord Tyrie, and his doggedness in pursuing and getting to the heart of some of these issues. We always appreciate his contributions and the learning we get from them. We have described a couple of his previous contributions as a bit of a curate’s egg, but not this one. I agreed with every word he said and I thank him for that. He made his point extremely well.

Having listened to the noble Lord, it is hard not to agree that the CMA should have the responsibility to have regard to the principles of best regulatory practice. We were just debating why the CMA has to be an outlier, given that other regulators already have this duty. The Minister said that he will try to find a counterexample. The challenge to the Minister is, if he cannot find one among the 500 or so that could be there, will he agree to take this away again and have another look at the Government’s position on this? I was certainly persuaded by the noble Lord, Lord Tyrie, and I think other noble Lords were as well.

I thank the noble Baroness, Lady Kidron, who made a very thoughtful speech. She has been in this field a lot longer than me. As she said, consumers and citizens are two sides of the same coin and, unlike consumers, citizens have a long-term interest. That is the big difference. We need to take that long-term view. She also rightly asked who is defending the interests of future consumers—that is, children. I am not sure that the Minister addressed that issue. I hope that the CMA would have a responsibility to do that. Both she and the noble Lord, Lord Clement-Jones, made the point that Ofcom already has a duty to further the interests of citizens, so I hope that the Minister bears that precedent in mind.

I listened to the Minister and we agree that the CMA needs clear objectives—it has been a theme running through all our earlier debates—but then we get to how to distinguish between the interests of consumers and citizens. In the digital world, in particular, they run into each other. It is not a simple buyer-and-seller market, but a lot more complicated, as a number of noble Lords have said. It is not clear who are consumers, rather than citizens, and what impact the CMA’s decision is having on them. We argue that we need to revisit this issue in the digital world.

I tried to head off the Minister before he spoke about the problem of regulators’ overlap. The fact is that a lot of the business that we are dealing with is not traditionally covered by other regulators, so there is a regulatory gap and it needs to be addressed.

I can see that I have not persuaded the Minister, but I have not given up. I think we are right and that we will probably carry on pursuing the issue but, as I said at the outset, I am not sure I got the wording of my amendment right. We will reflect on what the Minister said and may come back to this later but, meanwhile, I beg leave to withdraw my amendment.

Horizon Europe

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Tuesday 30th January 2024 Lords Chamber

[Viscount Camrose (Con)]

As is absolutely normal practice, money ring-fenced for a purpose to which it does not go is, in order to keep budgets taut and realistic, returned to the Treasury, but that in no way indicates an intention to diminish our spend on science and R&D. The Government remain committed to spending £20 billion a year on R&D by the 2024-25 spending review.

[Baroness Jones of Whitchurch (Lab)]

My Lords, what proportion of Horizon-funded projects are now led by UK research institutions compared to our previous well-known standing in the European research field?

[Viscount Camrose (Con)]

We have only very recently reassociated to Horizon, so we will not know who bid under the Horizon 2024 programme, or who the leader is or who has been successful, for, on average, six to nine months between making the proposal and receiving word, but at that time I will keep this House up to date on that important question.

Digital Markets, Competition and Consumers Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Monday 29th January 2024 Grand Committee

[Viscount Camrose (Con)]

I suggest that I set out a comparison in writing and perform the analysis as to the differences, should there be any, between the two.

Noble Lords expressed a concern on the second day in Committee that there should not be ambiguity in how appeals will be conducted. Introducing a requirement in a new domestic regime that requires an analysis of unrelated retained EU law to be able to understand how an appeal should be decided risks creating that kind of ambiguity. Complicating the appeals standard with EU case law would slow down appeals while the boundaries of what is captured by JR-plus are agreed.

Regarding decision-making, the noble Lord, Lord Tyrie, mentioned the CMA independent panel. Our approach to internal decision-making balances accountability and independence. Launching major market-shaping investigations under the regime will be reserved for the board. A board committee will oversee the regime’s regulatory interventions. At least half the members of the committee will be non-executive directors and members of the CMA’s independent panel. This make-up will ensure an independent perspective and the ability to develop deep expertise over time.

I hope that the reasoning I have put forward provides the necessary reassurances to noble Lords and that they will feel able not to press their amendments.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have spoken. Again, in the vast majority of the contributions, we seem to have reached a wide degree of consensus, although not totally, in the light of that from the noble Lord, Lord Tyrie.

Noble Lords have made a number of important points. The noble Baroness, Lady Stowell, was quite right to take us back to the practicality of appeals on a merits basis; I will come back to the Minister’s response on all that because things are still not clear. How can we be sure that such an appeal will not open the whole case up again? That is at the heart of what we are debating here.

The noble Lord, Lord Holmes, said that we do not really understand why this must be different. Why is it such a special case? It has not been explained to us why this exception has been made.

I very much appreciate the point made by noble Lord, Lord Faulks: at the heart of this issue is whether we want regulation by the DMU or by the courts. There is a real danger of us drifting towards the latter with the Government’s amendments.

The noble Baroness, Lady Harding, rightly reminded us that regulators cannot afford to take too many risks. There is a fundamental imbalance, with regulators perhaps being forced to be risk-averse because they do not have the budgets of the big tech companies. We understand the danger of the David and Goliath situation that we are in here. It is all too easy to create a system where big tech companies’ lawyers can rule the roost.

The Minister said that decisions on penalties will address what an SMS firm has or has not done. He said that a decision will address not whether a breach has occurred but what led to the breach. Our concern is that we are going to go back over all the evidence of what led to a breach, whereas the fine at the end of it represents the end of the decision-making and is meant to be the deterrent. Again, I will look at Hansard and the Minister’s subsequent letter, but it seems to me from his explanation that he risks opening the whole case up again.

I listened carefully to the noble Lord, Lord Tyrie. I understand his experience in all this. Importantly, he said that there is not just one model here—that is, we have a number of regulators that do things differently. As he pointed out, the Government have previously supported the JR model; we must be reminded of that. The noble Lord also raised his concern about what happens if mistakes are made. If mistakes are made, they would be made in the process leading up to the decision, not the subsequent fines. A merits appeal on the fine would not really help if the decisions had happened further up the decision-making process.

I agree with the noble Lord, Lord Vaizey, that the regulators are not perfect. However, as we have discussed and will discuss again, we need stronger regulatory oversight. That will come—indeed, it needs to come—from stronger parliamentary oversight, which we will continue to debate in our discussions on this Bill.

I come back to the fundamental point made by the Minister. I listened to him carefully but I am still not clear how he will keep the stages separate. How will he keep the decision-making separate from the decision on the penalty? If SMS firms argue that the penalty is too high, they will have to revisit the evidence leading to the decision.

Cancer Research: Funding Gap

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Monday 29th January 2024 Lords Chamber

[Viscount Camrose (Con)]

As we have just rejoined the Horizon programme as an associate, I am pleased to say that our collaboration with friends and colleagues in the EU will pick up considerably. I very much look forward to answering a Question in this House tomorrow on that exact subject.

[Baroness Jones of Whitchurch (Lab)]

My Lords, the Lord O’Shaughnessy review concluded that the UK is falling behind its peers in the internationally competitive marketplace for commercial clinical trials. Many in the research and entrepreneurial community are concerned that our most innovative researchers are going abroad. What is being done to persuade them to stay in this country?

[Viscount Camrose (Con)]

The Government and academic institutions countrywide are very focused on making sure that the country remains an attractive place to conduct research. We have four of the world’s top 10 universities in this country—a significant research base. We believe and hope that we are an outstanding place to come to live and work as a researcher. There is no doubt that we will need a significant influx of researchers if we are to meet our scientific ambitions as a nation. We continue to monitor our generous points-based immigration scheme to make sure that we can continue to attract the brightest and best.

Digital Markets, Competition and Consumers Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Wednesday 24th January 2024 Grand Committee

[Viscount Camrose (Con)]

Yes, indeed. I thank my noble friend for repeating the question and I apologise that I did not get to it earlier. I would be delighted to write and provide such examples.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who spoke in support of our amendments. It is worth saying at the outset that it sounds like we are being very critical of the potential SMS firms. This is not about being critical but about getting the balance right. That is what we are aiming to do. A lot of the discussion that we have had in Committee today has been about feeling that that has become out of kilter. We are trying to get the very careful balance that the noble Baroness, Lady Stowell, talked about. Her committee felt, having agonised over it, that the original wording was about right. A lot of us feel that, which is why we are so anxious and testing of the changes that have come along more recently.

As we debated and identified in the previous discussion, the CMA already has a responsibility to act proportionately. This ought to apply to its judgments about countervailing benefits as well. The noble Baroness, Lady Stowell, said that it is designed as a backstop. It is important that the threshold remains high; that is one of the key issues.

The noble Lord, Lord Fox, said that because of the word “must”—that the CMA must desist if there are countervailing benefits—it becomes almost mandatory, so there will be no opportunities for the CMA to make balanced judgments. We agree that it is far too prescriptive.

I rather liked the canter through all the preceding clauses from the noble Lord, Lord Lansley, before he concluded: why do we need Clause 29, because all those provisions are already there? He made an important point about all of that.

I listened carefully to the Minister. He repeated what he said at Second Reading: that this clause on countervailing benefits is only to pick up new, unknown consumer benefits that have not been identified before. Try as I might, I have looked at the wording of Clause 29 and I do not see that it says that there. As the noble Baroness, Lady Kidron, quite rightly pointed out, as it is worded there is a danger that the SMS companies could hold back evidence to that last backstop and then start challenging at that point. It would then be very difficult for the challenger firms to come forward with different evidence. The current wording opens up a disturbing void.

We have had a really good discussion about whether the previous wording or the new wording maintains the high threshold. I think most of us remain unclear about that. I think it was the noble Baroness, Lady Harding, who said that this new wording has not been tested in the courts, so it gives us not more certainty but more uncertainty. That is the last thing that we want at this point.

The Minister said that this was put in partly because stakeholders were confused. I would push back and say that the Select Committee chaired by the noble Baroness, Lady Stowell, looked at this in a lot more detail than some of those stakeholders have and concluded that the original wording is clearer and more robust than anything he has come back with. I hope the Minister will take that point away. I do not think he was particularly convincing about why that new wording was necessary.

On Clause 48, I have considerable sympathy with the case made by the noble Lord, Lord Black, and very much support his arguments. We do not want companies to be put in a situation where they have to accept suboptimal deals because they are running out of time and money when, if we are not careful, it could take many years for the process to be completed.

The Minister tried to reassure us, because if there was an anxiety about the time we could have interim enforcement orders, for example. However, the difference is that the final offer mechanism is more of a collaborative process. When we met with representatives from the CMA, they said that that is how they like to work: they do not want to go to court, they want to reach collaborative agreements. I feel that that our Amendment 48 would allow some of that collaboration to work along the system before it gets to the final, final offer. Again, I am not convinced by the Minister’s response on all of that. We want to keep it out of court as much as we can but he is tying the hands of the CMA too much in the way this is worded at the moment.

I am sure I have not picked up all the points but I think the Minister gets the idea that he is not really taking us with him. I therefore hope that he will reflect on these issues again but, in the meantime, I beg leave to withdraw the amendment.

Digital Markets, Competition and Consumers Bill

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Committee stage
Monday 22nd January 2024 Grand Committee

[Viscount Camrose (Con)]

I take note of my noble friend’s point. There may be many areas on which all of us in this Committee end up disagreeing, but one that I doubt we will disagree on is the need for absolute clarity in all these measures. I am very happy to commit to taking that away and seeing whether there is an appropriate form of words that can deliver the clarity that noble Lords are seeking.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have spoken. I very much echo the thanks expressed by the noble Baroness, Lady Harding, to all the companies and business that have given evidence and come forward to speak to us. It is true that, for a number of them, they have taken risks to do that. It is a sad fact of life now that their very survival could be at stake if some of their concerns become public. That is why we are here today, I suppose. That is where the market has left us and there is a need to address that.

To pick up on the points made by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Harding, about the CMA’s assessment, I think that we have had a useful discussion with the Minister around all that. I certainly want to look at Hansard and at the reassurances that the Minister has tried to give on this. I very much take the point, incidentally—as mentioned by the noble Viscount, Lord Colville, in moving his amendment—that SMS status does not mean that they have done anything wrong, so I do not want to get too hung up about giving that status in the first instance. What is important is how we follow that up and look at their behaviour going forward. As the noble Lord, Lord Clement-Jones, spelled out, there is a danger that, if we are not careful, those who are given that category will game the system. That is what we are all anxious about.

I am not sure that the wording achieves what the Minister wants. I think that we are all genuinely clear on the outcomes that we want, as the Minister said, but the current wording does not achieve that. The five-year forward plan is playing into the hands of the wrong people, and we will not come out with the outcomes that we want if we stick with the current wording, so I very much welcome the chance to have further discussion about that.

--- Later in debate ---

[Viscount Camrose (Con)]

Indeed, and I apologise for getting slightly sidetracked on the issue. I think the outcomes we want are that challenger tech firms should be duly informed about the information they need, whether to rebut claims set out by an SMS or to understand the implications and contribute to the process of determining what interventions the regulator should need to make. In the Bill, we are trying to develop the machinery that balances both sides of that equation most effectively, and I remain concerned that we need to manage the workload requirements of the regulator so that it is optimally focused on delivering the right outcomes based on the right information.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have spoken. We have had an excellent debate. I very much respect the experience of the noble Lord, Lord Tyrie, on this issue. I agree that there is a challenge for us in building trust in the new regime. It is a leap in the dark and, undoubtedly, we are giving the CMA/DMU considerable new powers, so it must prove its worth and prove that our faith in it is justified. I agree that there is a danger of getting that balance wrong. During the passage of the Bill, we will look at other ways of getting parliamentary and other oversight of its activities, to ensure that we get the balance in check.

I also agree that it is important that we maintain commercial confidentiality. This is an issue about sharing information, which we were just talking about. However much information is shared, we must ensure that those who are sharing it—sometimes it is very much core to their business model—respect it and do not put it in the public domain. All that must underpin our debate.

I agreed with the noble Lord, Lord Clement-Jones, that the proposals from the noble Lord, Lord Tyrie, were a curate’s egg; I was not sure either about the independent case reviewer. I worry that it would be another loophole, or hurdle, that would allow the lawyers a field day. The noble Lord, Lord Tyrie, put it there with the very best intentions, and I am happy that we talk about it, but I am not sure about it. It worries me that we are being too prescriptive by setting it out in so much detail in the Bill, but let us get that right because there will, I hope, be other opportunities to debate this.

I thank the noble Baronesses, Lady Harding and Lady Kidron, and the noble Lord, Lord Vaizey, for their support on my amendments. The noble Baroness, Lady Harding, said it very well: the amendments illustrate the inequality of arms between the SMS and the challenger firm. There will be a wealth of evidence that the CMA needs to consider. That will be a whole lot of major anti-competitive practices, a lot of which it already knows about, but there will also be some of the more minor inconveniences that are put upon some of the challenger firms. We have met with a lot of the stakeholders; sometimes what is so annoying is the irritating, almost vindictive little actions, because you have the temerity to put your hand up and say that you do not agree with the major companies. We must ensure that we capture all of that in the round, and that it is not just the major known knowns that the CMA considers.

The noble Baroness, Lady Kidron, made the point very well: there is a danger that, based on what it knows, the CMA will make assumptions about what it can win, rather than getting under the skin of what is really going on and what is right for the consumer in all this. To get under the skin, the CMA will need a lot of information, so we must ensure that it gets the right information, at the right time, from the right people. The noble Baroness and the noble Lord, Lord Clement-Jones, made the point that, as it is set out at the moment, the incumbents have all the cards. We need transparency of information to rebalance the scales in all this.

I have listened carefully to the Minister’s response. He said that the DMU is required to consult publicly before decisions are implemented, but that is probably too late to influence the outcome. By the time that it is consulting publicly, it has already made its mind up. I am not sure that that is the right point at which that major flow of new information needs to take place. The Minister argued that the burden of sending notices to thousands of parties, et cetera, would outweigh the benefit. That is exactly the information that it needs, and the noble Baroness, Lady Harding, made that point. If we have to bite that bullet, let us bite that bullet. If that is what it takes to rebalance the scales then we need to do that.

I fully admit that we might not have got the wording right to achieve that, but I think the principle is right and I am prepared to dig in on that principle. I hope we can have a further discussion on it. I think we know what we want to do. Nobody wants the SMS companies to flood the CMA with so much information that everybody drowns. We have to get it right so that it gets the right information. I do not think we have the balance right at this time, but let us talk about it some more. In the meantime, I beg leave to withdraw my amendment.

--- Later in debate ---

[Viscount Camrose (Con)]

There is a much broader set of work looking at issues of copyright, intellectual property and artificial intelligence together—a hugely complex piece of work with many stakeholders pulling in a range of different directions. The goal of this Bill is to address that in so far as it affects competitive markets. We may debate this, but the design of the Bill is such that, in so far as competition is affected by the misuse of intellectual property or intellectual property infringements, the CMA is empowered to intervene to drive greater competition or address issues that limit competition. It is targeted only at addressing competitive issues but, in so far as they affect competitive issues, it is empowered to address IP infringement issues, as set out here.

Existing permitted types of conduct requirements already allow the CMA to set requirements for unfair and unreasonable terms, which can include payment terms. The Government are committed to our world-leading IP regime. Copyright legislation already provides a robust framework for rights holders to enforce against copyright infringement. We will take a balanced approach to the use of AI across the press sector and departments across government are working together closely to consider the impact of AI, ensuring that AI innovators and our world-leading creators can continue to flourish.

I turn to Amendments 26, 27 and 25. I thank noble Lords for their thoughtful and considered contributions on these amendments. Amendments 26 and 27 are intended to expand the ability of the CMA to intervene outside the designated digital activity. Amendment 25 also seeks to expand this power specifically in relation to self-preferencing behaviour that takes place outside the designated activity. We agree with noble Lords that it is crucial that the CMA can deal with anti-competitive behaviour outside the designated activity where appropriate. My noble friend Lord Offord and I have had a number of representations giving further examples of this kind of behaviour and we are committed to finding the right means of addressing it.

Our current drafting has sought to balance the need for proportionate intervention with clear regulatory perimeters. The regime is designed to address the issues that result from strategic market status and is therefore designed to address competition issues specifically in activities where competition concerns have already been identified. This recognises that SMS firms are likely to be active in a wide range of activities and will face healthy competition from other firms in many of them.

I assure noble Lords that the power to prevent self-preferencing is already sufficiently broad. It can apply where an SMS firm is using its power in the designated activity inappropriately to treat its own products more favourably, but without a need for those products to be linked to the designated activity. In addition, the existing power outlined in Clause 20(3)(c) to intervene in non-designated activities, which noble Lords are referring to as the whack-a-mole principle, has been carefully calibrated. It is available only where the conduct has a material impact on the strategic market status in respect of the designated activity.

The same conduct in respect of a different activity may not have the same impact on the market. It will not always be anti-competitive and may instead form a part of normal business practice in a more contestable market. The DMU will therefore take a targeted, evidence-based approach when considering intervention. The DMU can intervene via conduct requirements outside the designated activity to prevent leveraging into the designated activity or via PCIs to address an adverse effect on competition in a designated activity. Therefore, the Government’s view is that broadening the CMA’s powers would risk over-intervention, creating uncertainty for businesses and risks to innovation and investment.

[Baroness Jones of Whitchurch (Lab)]

Before the Minister moves on, do I understand from the beginning of that contribution that he is still looking at the wording—in other words, that he not wedded to the wording and is there some scope for either the amendment from the noble Lord, Lord Vaizey, or our amendment, or to work with him to see if we can achieve what we are trying to achieve through this or other means?

[Viscount Camrose (Con)]

Throughout this group, I am convinced that we are trying to achieve the same thing. I remain concerned that we have to design safeguards against regulatory overreach to enter into markets that are currently healthy, but beyond that I am very happy to explore the right form of wording or design that achieves the end that all sides are keen to establish.

Amendment 24 is intended to clarify the meaning of information being accessible. I thank my noble friend Lord Holmes for the amendment, and for the rigour and passion he demonstrated when making his points. I agree that the question of online accessibility is of great importance. All kinds of technology should be for everyone. I can provide assurance that the CMA can already consider the concept of accessibility in the broadest sense, and in a way that includes—but is not limited to—compatibility with assistive technology. I agree that it is crucial that all members of our society have the right to accessible information. The Bill as drafted provides for this and can encompass, for example, a requirement to have terms and conditions that are easily accessible on a website, in easy-to-understand language, and compatible with assistive technology.

Amendments 32 and 22 would remove the power that enables the Secretary of State to update the list of permitted types of conduct requirement and replace it with an additional open-ended type of conduct requirement. I thank noble Lords for their amendments and agree that digital markets are fast-moving and unpredictable. Future innovations are hard to foresee and will likely give rise to a range of new behaviours and ensuing harms. Although the Government have endeavoured to make the list of permitted types of conduct requirements fully comprehensive, it could become out of date in the future. The noble Viscount’s proposal to add an open-ended type of conduct requirement would, we feel, grant too wide a power to the CMA and undermine the safeguards we have set by creating a clear framework for the CMA to operate within.

It is right that both government and Parliament have appropriate oversight and scrutiny over the significant powers being granted to the CMA. Therefore, the delegated power to allow the Secretary of State, subject to parliamentary scrutiny, to update the legislation provides the most appropriate way to future-proof the regime, ensuring that it can intervene effectively and promptly on the right issues. In addition, I note that the Delegated Powers and Regulatory Reform Committee has not queried the need for this power.

Research, Development and Innovation Organisational Landscape Report

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Monday 20th November 2023 Lords Chamber

[Baroness Jones of Whitchurch]

To ask His Majesty’s Government when they intend to respond to the Independent Review of the UK’s Research, Development and Innovation Organisational Landscape, published in March 2023.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

The Government’s response to the landscape review is in its final stages of preparation and will be published imminently. The response will outline the ambitious actions that we have taken since the review’s publication, including through the Science and Technology Framework and the creation of DSIT. It will also announce further commitments to create a research, development and innovation landscape that makes the most of our strategic advantages and builds a more diverse, resilient and investable landscape.

[Lord Krebs (CB)]

My Lords—

[Baroness Jones of Whitchurch (Lab)]

I thank the Minister for that reply, but he will know that the review identified significant problems in the UK’s RDI landscape, some of which are long-term and serious, and are preventing us from becoming a science superpower. So can he assure us that the Government will take on board the integrated set of recommendations proposed in the review and establish an authoritative working group to implement them, rather than adopting a piecemeal approach to what it is a very serious challenge?

[Viscount Camrose (Con)]

Indeed it is a serious challenge. The review identified, I think, 29 separate recommendations. The approach that the Government are taking is to address them not merely singly but, as the noble Baroness suggests, collectively, as a whole, as well. In fact, since its creation, two of our major steps build on the foundations laid by the Nurse review: that is, the creation of DSIT itself and the laying down of the Science and Technology Framework, which builds on the review, to set up the approach along many of the lines that the review suggested.

Artificial Intelligence: Regulation

Debate between Baroness Jones of Whitchurch and Viscount Camrose

Tuesday 24th October 2023 Lords Chamber

[Viscount Camrose (Con)]

I very much agree with my noble friend that we need maximum public acceptance of AI. However, that must be based on its trustworthiness. That is why we are pursuing, among other things, the global AI Safety Summit next week. I am not familiar with the Taiwanese approach but will look into it, and look forward to discussing it in due course.

[Baroness Jones of Whitchurch (Lab)]

My Lords, it has been reported that the Government want big tech companies to agree a set of voluntary guidelines at the AI summit. Can the Minister confirm this? If so, why are the Government not seeking more robust systems of oversight and regulation, notwithstanding some of the advantages of AI, when the dangers of unchecked technology are, as we have heard, so high?

[Viscount Camrose (Con)]

I do not believe that anyone anywhere is advocating unregulated AI. The voluntary agreement is, of course, a United States agreement secured with the White House. We welcome it, although it needs to be codified to make it non-voluntary, but that will be discussed as part of the summit next week.