Data (Use and Access) Bill [HL]

Baroness Kidron Excerpts

Report stage
Tuesday 28th January 2025 Lords Chamber

[Lord Pannick (CB)]

My Lords, I add my congratulations to the noble Baroness, Lady Owen, for her skill and persistence in persuading the Government to address this noxious practice, which is causing so many women so much distress and humiliation. It is outrageous that this is still not unlawful.

I very much welcome what the Minister said, and I will press him on four matters. I hope that I understood him correctly when he said that the criminal offence will include solicitation in this country of the creation of these images abroad. I see that he is nodding—I am grateful. This is vital for this provision because, unless the criminal offence in this country covers such matters, the mischief will continue, as the Minister recognises. I can see no difficulty in terms of constitutional theory or practice or international law, because there are many offences in the criminal calendar where what is criminalised is conduct in this country, even though part of the matter that causes concern occurs abroad. I am very grateful to the Minister.

Secondly—and I hope I understood the Minister correctly—he said that the Government’s amendments will contain no intent element other than intent to create the image. That is very important. If the prosecution has to establish some other intent, that will enable defendants to come up with all sorts of spurious explanations such as, “It was not my intent” and “I didn’t realise that it would have this effect”, which would frustrate the purpose. I think that is what the Minister said, and I would welcome confirmation on that important point.

I would also welcome confirmation on another point. Another “intent”—intent to cause alarm, distress or humiliation—is in his Amendment 56A, which I of course appreciate will not be pursued in due course. Does the Minister’s statement that no other intent than intent to create the image will be required also covers the other element, which is in Amendment 56A? That also requires the prosecution to prove, as an alternative, the purpose for which these images are created. It has to be proved under Amendment 56A that the purpose is to obtain sexual gratification. The defendant will inevitably say that it is not their purpose. Could the Minister confirm that that will not be replicated in the amendment that will eventually be brought forward? I see the Minister nodding, and I am grateful to him.

Thirdly, the Minister referred to what will be in the amendment that will eventually be brought forward. If I understood him correctly, there will be a defence of reasonable excuse. The Minister confirms that that is what he said. I have great difficulty in understanding in what circumstances a defendant could have a reasonable excuse for creating or soliciting a fake image of a sexual nature without either the consent of the victim or, at the very least, a reasonable belief by the defendant that the victim had consented. Can the Minister give us an example of where the image has been created or solicited and the defendant does not believe that the woman has consented, or does not have a reasonable belief that the woman has consented, but there is nevertheless a reasonable excuse for this conduct? I cannot think of one. I am not expecting an answer from the Minister today, but if his amendment contains the reasonable excuse defence, I for one will be pressing him on it.

Fourthly and finally, I understood the Minister to give a commitment, not that the amendment will be ready in time necessarily for Third Reading, but that it will be ready and introduced during the passage of this Bill through Parliament. My understanding is that there is no question of this being kicked into the long grass. We have a commitment that the Government will propose legislation in the course of parliamentary consideration of this Bill. If I am right on that—again, I saw the Minister nodding—I very much hope that the noble Baroness, Lady Owen, will not feel it necessary to press her amendment this evening. She has made enormous progress on this, which is much welcomed around the House. It would be much better, would it not, to preserve and reserve her position for Third Reading, if she needs to bring the matter back then?

[Baroness Kidron (CB)]

My Lords, it is such a pleasure briefly to follow my noble friend Lord Pannick; not for the first time I thought that, if I ever get in trouble, I know who I will go to.

I record my admiration for the noble Baroness, Lady Owen. She has fought a just and forensic fight and she has mastered the gift of the House of Lords very rapidly. I also thank the Minister, Sarah Sackman, for the meeting on this subject and for agreeing to look again and again at the issue of intent and consent, which is something that those of us who have been in the world of sexual offences really must insist on, so I was delighted to hear from the noble Baroness and the Minister that that is somewhat resolved.

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Moved by

[Baroness Kidron]

58: After Clause 132, insert the following new Clause—
“Sovereign data assets(1) The Secretary of State may by regulations define data sets held by public bodies and arm’s length institutions and other data sets that are held in the public interest as sovereign data assets (defined in subsection (6)).(2) In selecting data sets which may be designated as sovereign data assets, the Secretary of State must—(a) have regard to—(i) the security and privacy of United Kingdom data subjects;(ii) the ongoing value of the data assets;(iii) the rights of United Kingdom intellectual property holders;(iv) ongoing adherence to the values, laws and international obligations of the United Kingdom;(v) the requirement for public sector employees, researchers, companies and organisations headquartered in the United Kingdom to have preferential terms of access;(vi) the need for data to be stored in the United Kingdom, preferably in data centres in the United Kingdom;(vii) the need to design Application Programming Interfaces (APIs) as bridges between each sovereign data asset and the client software of the authorized licence holders;(b) consult with— (i) academics with expertise in the field;(ii) the AI Safety Institute;(iii) those with responsibility for large public data sets;(iv) data subjects;(v) the Information Commissioner.(3) The Secretary of State must establish a transparent licensing system, fully reflecting the security and privacy of data held on United Kingdom subjects, for use in providing access to sovereign data assets.(4) The Secretary of State must report annually to Parliament on the ongoing value of the sovereign data assets, in terms of—(a) their value to future users of the data;(b) the financial return expected when payment is made for the use of such data in such products and services as may be expected to be developed.(5) The National Audit Office must review the licensing system established by the Secretary of State under subsection (3) and report annually to Parliament as to its effectiveness in securing the ongoing security of the sovereign data assets.(6) In this section—“sovereign data asset” means—(a) data held by public bodies and arm’s length institutions of government;(b) data sets held by third parties that volunteer data to form, or contribute to, a public asset.(7) Regulations under this section are to be made by statutory instrument.(8) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
The UK has a number of unique publicly-held data assets, from NHS data to geospatial data and the BBC’s multimedia data. This amendment would create a special status for data held in the public interest, and a licensing scheme for providing access to them, which upholds UK laws and values, and ensure a fair return of financial benefits to the UK.

[Baroness Kidron (CB)]

My Lords, I will speak to both amendments in this group. Amendment 58, which is in my name and those of my noble friend Lord Tarassenko, and the noble Lords, Lord Stevenson and Lord Clement-Jones, seeks to ensure that the value of our publicly held large datasets is realised for the benefit of UK citizens. A full explanation of the amendment can be found at col. 162GC of Hansard. Amendment 71 is new and has a different approach to many of the same ends.

The speed at which the Government are giving access to our data is outpacing their plans to protect its financial or societal value. As we have seen over the last 24 hours, in which $1 trillion was wiped off the US AI sector and China provided a next gen proposal for AI—at least for the moment—technology moves at pace, but data is still the gold dust on which it rests.

Amendment 58 would require the Government to act as custodian of that vital asset. For example, they would need to decide the criteria for assigning publicly held data sets as a sovereign data asset, secure a valuation for that asset, and then be accountable for the decisions they took to protect that value and generate a return, both financial and societal, on behalf of the British public.

When that idea was proposed at Second Reading, the Minister said the Government’s proposal for a national data library would address those concerns. However, despite requests for further information from noble Lords in Committee, the Minister did not elaborate. That is a source of considerable frustration, given that in the same period no fewer than seven recommendations for the national data library in Matt Clifford’s AI action plan were fully accepted and widely trumpeted by the Government—including giving away BBC assets for free without asking the BBC.

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[Lord Vallance of Balham (Lab)]

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

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

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

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

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

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

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

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

[Baroness Kidron (CB)]

I am grateful for a breakout of agreement at this time of night; that is delightful. I agree with everything that the Minister said, but one thing we have not mentioned is the incredible cost of managing the data and the investment required. I support the Government investing to get the value out, as I believe other noble Lords do, and I would just like to put that point on record.

We had a meeting yesterday and thought it was going to be about data assets, but it turned out to be about data communities, which we had debated the week before. Officials said that it was incredibly useful, and it might have been a lot quicker if they had had it earlier. In echoing what was said in the amendment of the noble Baroness, Lady Owen, there is considerable interest and expertise, and I would love to see the Government move faster, possibly with the help of noble Lords. With that, I beg leave to withdraw the amendment.

Amendment 58 withdrawn.

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Moved by

[Baroness Kidron]

61: After Clause 132, insert the following new Clause—
“Compliance with UK copyright law by operators of web crawlers and general-purpose AI models(1) The Secretary of State must by regulations make provision (including any such provision as might be made by Act of Parliament), requiring the operators of web crawlers and general-purpose artificial intelligence (AI) models whose services have links with the United Kingdom within the meaning of section 4(5) of the Online Safety Act 2023 to comply with United Kingdom copyright law, including the Copyright, Designs and Patents Act 1988, regardless of the jurisdiction in which the copyright-relevant acts relating to the pre-training, development and operation of those web crawlers and general-purpose AI models take place.(2) Provision made under subsection (1) must apply to the entire lifecycle of a general-purpose AI model, including but not limited to—(a) pre-training and training, (b) fine tuning,(c) grounding and retrieval-augmented generation, and(d) the collection of data for the said purposes.(4) The Secretary of State must lay before Parliament a draft of the statutory instrument containing regulations under subsection (1) within six months of the day on which this Act is passed and the regulations are subject to the affirmative procedure.”Member’s explanatory statement
This amendment is part of a group of amendments that would clarify the requirement for web-crawlers and other “data gatherers” to observe UK copyright law. This is to counter the wide spread theft of IP by AI companies who use it as raw material for their products.

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Moved by

[Baroness Kidron]

68: After Clause 132, insert the following new Clause—
“Reliability of computer-based evidence(1) Electronic evidence produced by or derived from a computer, device or computer system (separately or together “system”) may be relied on as evidence in any proceedings —(a) where that electronic evidence is not challenged;(b) where the court is satisfied that the electronic evidence is derived from a reliable system or otherwise the court is satisfied that the evidence is reliable.(2) Rules of Court must provide that electronic evidence sought to be relied upon by a party in any proceedings may be challenged by another party as to its correctness.(3) For the purposes of subsection (1)(a), Rules of Court must provide for the circumstances in which the Court may be satisfied that the admissibility of electronic evidence cannot reasonably be challenged. (4) For the purposes of subsection (1)(b), the matters that may be taken into account by the court in determining if a system is to be considered reliable include—(a) whether the evidence is wholly obtained from a regulated system (such as a speed camera and DVLA database);(b) the errors that have been reported in the system, the actions taken to correct them, and any errors that remain uncorrected (these may include the Known Error Log and Release Notices);(c) the measures taken to ensure that the electronic evidence accurately records the facts that are being claimed (including measures to block, record and manage cyberattacks);(d) the forensic measures taken to ensure that the electronic evidence has not been affected by accidental, privileged or unauthorised access;(e) the route that the electronic evidence has taken from the originating system to the court and the measures taken to ensure its integrity;(f) external independent audit of the system.(5) If the materials under subsection (4) are not available or if the materials produced for the purposes of subsection (4) are considered by the court to be insufficient for the court to conclude that the system is reliable for the purposes of subsection (1)(b), the party seeking to rely upon the electronic evidence must otherwise satisfy the court that that evidence is reliable.(6) For the purposes of this section—“computer” means any device capable of performing mathematical or logical instructions;“device” means any apparatus or tool operating alone or connected to other apparatus or tools, that processes information or data in electronic form;“electronic evidence” means evidence derived from data contained in or produced by any device or computer the functioning of which depends on a software program or from data stored on a computer, device or computer system or communicated over a networked computer system.”

[Baroness Kidron (CB)]

My Lords, I move Amendment 68 in my name and those of the noble Lords, Lord Arbuthnot, Lord Holmes and Lord Clement-Jones. This amendment has been debated several times within this Bill and its predecessor; however, this version differs slightly in approach. The objective remains the same: to overturn the common-law assumption in both civil and criminal law that computers are infallible.

This assumption has led to untold injustice. Innocent people have lost their lives, freedom and livelihoods because the law wrongly assumed that computers are never wrong. This of course is nonsense, as explained in detail in our last debate, at column GC 153 of Hansard. In summary, computer systems are very susceptible to both human and technological error. Indeed, the presence of bugs is normal, anticipated and routine in all contexts other than the court.

As with previous iterations of this amendment, Amendment 68 overturns that common-law assumption, but the drafting now closely mirrors provisions under the Electronic Trade Documents Act 2023, which was enacted in recognition that the majority of trade documents are now electronic.

The ETDA ensures and assures the integrity of electronic trade documents. It was put in place to protect those on both sides of the trade, so I am curious, at the very least, as to why we will be able to consider the efficacy of computer evidence in relation to trade but not in our legal system. I am also concerned that the MoJ, under several Governments, has been so slow to recognise the scale of the problem of this assumption, which one of my most experienced computer science colleagues described as “wicked nonsense”.

In brief, the amendment provides that the electronic evidence produced by or derived from a computer may be relied upon as evidence where that evidence is not challenged and where the court is satisfied that the evidence can be relied upon. The rest of the amendment is carefully drafted by legal experts and computer scientists with legal expertise to support the court in coming to a meaningful assessment of whether to be satisfied, or not, that the evidence can be relied upon.

This proposal has been tried and tested within our legal system. We know that it works, and I therefore see no reason why the Government should not simply accept it. However, rather than discuss it, the Government chose to announce, last week, a consultation on computer evidence. The call for evidence is a source of significant frustration for those of us who have championed this issue, as is the fact that the promised meeting with the MoJ did not happen before that announcement, in spite of repeated requests.

In her introductory remarks to the consultation, the Minister for Justice, Sarah Sackman, says that the purpose of the consultation is to help her department

“better understand how the current presumption concerning the admissibility of computer evidence is working in practice, and whether it is fit for purpose in the modern world”.

This is a backward step. The evidence that presumption is not working and is not fit for purpose is overwhelming and decades long; what are needed now are solutions, one of which is before us tonight.

Moreover, the Government’s preference for doing everything behind doors has sunk their own consultation. Had experts been consulted, the first thing they would have pointed out is that the scope is insufficient because it does not address civil proceedings but only criminal proceedings, even though the presumption is the same for both. This means that, at best, the Government’s consultation can lead only to a partial solution.

We in this House have discussed this issue in the case of the postmasters; it is a case that is front of mind. This approach may have spared those postmasters who were subject to criminal prosecutions, but not those such as Lee Castleton who was subject to civil proceedings by the Post Office, which chased him to bankruptcy. He was also branded a thief, spat at and verbally abused in the street. He developed post-traumatic stress disorder. His wife developed epilepsy from stress, his daughter developed an eating disorder and his son remains so traumatised that he cannot be in a room where someone says the words “Post Office”. A solution that does not prevent the injustice done to Lee and his family from happening to others is not fit for purpose. If the MoJ had done us the courtesy of a meeting, this could have been avoided.

I am sure the Minister will assure us that the Government are acting, but for those whose lives have been ruined, those who have fought for too many years on this issue, the consultation creates the spectre of yet another battle and further delay when the solutions are here and at hand. I want nothing more than to be wrong on this, and for the Government to prove me wrong. But for past victims, for lawyers and experts who have given their time so generously, and for those whose lives will be ruined because the computer got it wrong, half a consultation on a matter so well-established and urgent is a pretty poor result. I beg to move.

[Lord Arbuthnot of Edrom (Con)]

My Lords, as so often, I listened with awe to the noble Baroness. Apart from saying that I agree with her wholeheartedly, which I do, there is really no need for me for me to add anything, so I will not.

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[Lord Vallance of Balham (Lab)]

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

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

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

[Baroness Kidron (CB)]

The Minister did not quite address my point that the consultation is not broad enough in scope, but I will accept the offer of a meeting. Although the noble Lord, Lord Arbuthnot, spoke very briefly, he is my partner in crime on this issue; indeed, he is a great campaigner for the postmasters and has done very much. So I say to the Minister: yes, I will have the meeting, but could it happen this time? With that, I beg leave to withdraw the amendment.

Amendment 68 withdrawn.