Data Protection and Digital Information Bill

Baroness Young of Old Scone Excerpts

Committee stage
Wednesday 17th April 2024 Grand Committee

[Baroness Bennett of Manor Castle (GP)]

My Lords, this is a very small and modest amendment, adding a fifth element to a list. Clause 85 is very long, so I will try to keep to its key elements. The clause

“confers powers on the Secretary of State and the Treasury to make provision in connection with access to customer data and business data”.

It is particularly focused on information about

“the supply or provision of goods, services and digital content”

by a business. The four elements are these. The first is where it is “supplied or provided”; the second is “prices or other terms; the third is “how they are used”; and the fourth is “performance or quality”. That fourth element does not cover the specific issue that my modest Amendment 195A proposes to add: the energy and carbon intensity of goods, services or digital content.

This might be seen as an attempt at future-proofing and including something which is a fast-growing area of great consumer concern—it should be of government concern too in the light of the Climate Change Act and the Government’s responsibilities. It would add a modest piece of possibility. I stress that, as the explanatory statement says, this can be required; it does not demand that it has to be required, but it provides the possibility that it can be.

There is a parallel here. When you go into a shop to think about buying white goods because you need to replace a fridge or washing machine, you expect, as a matter of standard, to see an energy performance certificate that will tell you how much electricity it will use, or, in the case of gas cookers, how much energy. We now expect that as standard, but of course, that is not focused on what is in the appliance but on what it will use.

The other obvious example is energy performance certificates in relation to housing. Again, that is something that could probably be considerably improved, but there has been some step towards thinking about issues around energy use rather than what is put in. In that context of building, we are seeing a great deal of focus—and, increasingly, a great deal of planning focus —on the issue of embodied carbon in buildings. This is taking that further, in terms of goods, services and digital provision.

Perhaps the obvious reason why a future Government might want to do this is that, if we think of the many areas of this so-called green rating in environmental standards, we have seen a profusion of different standards, labels and models. That has caused considerable confusion and uncertainty for consumers. If a Government were to say that this was the kind of step that would be used, it would give a standard to apply across the digital fields that would be clearly understood and not open to gaming by bad actors, by just creating their own standard, and so on.

Take, for example, the Mintel sustainability barometer —it is a global study but is reflective, I think, of what is happening in the UK. Consumers are increasingly demanding this information; they really want to know the environmental impact, including the impact of the production of whatever they are purchasing. This is information that consumers really want.

The other thing that I would point to in terms of this future-proofing approach is the OECD’s Inclusive Forum on Carbon Mitigation Approaches. That is rather a mouthful. In February, it put out a study entitled—another mouthful—Towards more accurate, timely, and granular product-level carbon intensity metrics: A Scoping Note. That makes it clear that we are talking here about something that is for the future; something that is being developed, but developed fast. If we think about the Government’s responsibilities within the Climate Change Act and the public desire, this modest addition, providing the legislative framework for future action, is a small positive step. I beg to move.

[Baroness Young of Old Scone (Lab)]

My Lords, I shall speak to Amendment 218, which is in my name and those of the right reverend Prelate the Bishop of Oxford and the noble Baroness, Lady Parminter. I thank them for their support.

I apologise to the Minister, because I think this amendment is typical of the increasing way in which we will see environmental and particularly climate change issues popping up in Bills that belong not to Defra, DESNZ or DLUHC but to other departments. Because there is the fundamental issue of many economic and other activities impacting on these issues, that will be a pattern for Bills. He is playing on unfamiliar turf on this one, I am sure, so I sympathise with him.

“This amendment would require Ministers and public authorities, such as regulators”


when they make significant announcements about policy change, to disclose any analysis they have done of the

“impact of announcements … on UK climate change mitigation targets, adaptation to climate impacts and nature targets”.

The sorts of announcements that this amendment refers to include the introduction of primary legislation, obviously; changes to the timing, level and scope of government targets; large public sector procurement contracts; big infrastructure spending commitments; and any other policies that have the potential to have significant impact on climate and nature targets and climate change adaptation.

I firmly believe, and I have the support of the clerks, that this accords with the provision in the Long Title of the Bill

“to make provision about the disclosure of information to improve public service delivery”

The information disclosed has to be accurate, timely and machine-readable. The Secretary of State would give guidance on the format of that disclosure following wide consultation with those involved, especially across all departments, because it will be an issue that involves all departments.

So why is the amendment needed? At the moment, the Government are required to publish a whole load of reports on environmental impacts but many of them are periodic, or possibly only annual and high level. For example, the Government are required to publish periodic high-level delivery plans on net zero under Sections 13 and 14 of the Climate Change Act. However, these leave unquantified many emissions savings and they are not revised at all when policies change.

The Government recently decided to delay the date of a ban on new fossil fuel cars and vans; to delay the proposed ban on further installation of oil, LPG and coal heating systems; and to delay the rollout of the clean heat market mechanism. The Government failed to report any greenhouse gas impacts from these measures, which were pretty substantial announcements. Indeed, the Secretary of State for DESNZ argued that it would not be appropriate, or a requirement, to update and publish a revised version of the carbon budget delivery plan every time that there was a change in policy. That is not what this amendment argues for; it reflects that one would think that, when such significant announcements were being made, the Government would have looked at what the impact on climate change issues would be.

The amendment would simply require the Government to publish any analysis that they have done on impact assessments or to publish the fact that they have not done any such analysis—one can draw one’s own conclusions from the fact that they have not done that. The Environmental Audit Committee in the other place, around the time of the announcements of which I gave examples, went so far as to challenge the Prime Minister to provide clarity on how the Government intended to fill the emission reduction gap caused by the proposed rollback of existing policies and did not get a satisfactory answer.

There are similar current arrangements for reports on adaptation and resilience to climate change. Section 56 and 58 of the Climate Change Act require, again, periodic reporting at a high level on adaptation to climate change. That legislation has not been updated when policies have changed. As far as the introduction of new legislation is concerned, Section 20 of the Environment Act requires a statement on environmental law by government when there is environmental content in any new Bill. However, we already know from bitter experience that the Government interpret “environmental content” rather tightly.

All but one of the 28 Bills considered by Parliament in this current Session stated that they did not contain environmental law at all, whereas we can see that several of them have a clear environmental impact. For example, the Economic Activity of Public Bodies (Overseas Matters) Bill—I should be talking now about an amendment on it across the way, as indeed, should the noble Baroness, Lady Bennett—could prevent public bodies from taking important environmental matters into account in their decision-making. However, at the time of that Bill being published, it was certified by Ministers as not containing any environmental law.

Currently, the Government publish impact assessments for new legislation, including environmental impact assessments where the proposals are expected to have an environmental impact. Again, this is interpreted very tightly by the Government. Of the 28 government Bills that we have considered in this Session, 24 reported negligible impact, zero impact or being not applicable in the greenhouse gas box of the appraisal form—or the whole box was left blank. No account was available of the evidence on which such ratings of not having any impact was based because we did not then get any environmental impact assessment. To give one example: the Offshore Petroleum Licensing Bill simply reported that impacts were not quantified, which is pretty staggering, bearing in mind the clear environmental implications of that Bill. One would think that licensing additional petroleum extraction from the North Sea has some environmental ramification.

We have talked about climate change impacts and adaptation impacts, and we have talked about legislation. With regard to public procurement, the Government and contracting authorities are not required to publish the greenhouse gas emissions associated with individual procurement contracts. We argued that one in the Procurement Bill and failed to get any movement. There is a procurement policy note guiding government departments to seek emission reductions plans from the firms that they are contracting with, but this is a non-statutory note—it is advice only—and it covers only the contracting companies’ own operations and not the impact emissions of the products of services being contracted for.

Data Protection and Digital Information Bill

Baroness Young of Old Scone Excerpts

2nd reading
Tuesday 19th December 2023 Lords Chamber

[Baroness Young of Old Scone (Lab)]

My Lords, the Bill may contain some good elements in the search for a modernisation of data protection, but in overall terms it seems to tilt the balance of advantage to businesses and government authorities rather than to the individual. It has been marred in its passage by the profusion of late government amendments in the other place on Report, and an absence of scrutiny from the Joint Committee on Human Rights.

There are a number of issues that I think need to be seriously reconsidered. I will focus today on four. I also commend the passion of the noble Baroness, Lady Kidron, on the issues that she raised, some of which I will also touch on.

First, as my noble friend Lord Knight of Weymouth and the noble Lord, Lord Allan of Hallam, said—I do love the noble Lord’s name; alliterative Peers are a wonderful thing—a number of proposals appear to put at risk the free flow of data from the UK to the EU. That has already been touched on. It could even undermine the UK’s data adequacy decision. There seems to be some disconnect between what the EU Commission and the EU Parliament have begun to enunciate as a view: that the new powers of the Secretary of State to meddle with the objective and impartial functioning of the new Information Commission could result in the withdrawal of the UK adequacy decision. There seems to be a disconnect between that and the assurances that Ministers have given so far in the other place. Losing that decision, or even seeming to have that decision at risk, would be pretty disastrous for UK business, our trade and our research collaborations. Can the Minister tell the House how he intends to avoid this in the review due next year? How does he square the concerns of the EU with the assurances given by his ministerial colleagues?

My second point is about the new measures introduced at the last minute in the other place—Clauses 128 and Schedule 11—requiring the banks to monitor continuously all accounts to find welfare recipients and snitch on them if they reach certain as yet unprescribed criteria. This is not just an abstruse issue; it involves a considerable number of people. Knowing the age of the average Peer, it probably involves pretty well everybody in this House, because, of course, it includes pension recipients, so this is of personal concern to all of us. This is legitimising mass surveillance by algorithm. This seems to me to be a major intrusion into the privacy of pretty well all individuals in the UK and, to some extent, an infringement on the confidential relationship that you ought to be able to expect between a bank and its customer.

Can the Minister tell the House why he thinks this Big Brother mechanism is necessary? Why can the problem of benefit fraud not be dealt with in a way that does not mean that all customers are subject to surveillance? What alternatives were considered by Government and rejected? What safeguards will go alongside this provision to prevent it from being typified as a heavy-handed Big Brother approach?

It is strange that pension claimants are included. A pension, in my view, is a right, not a benefit; it was paid for by hard work during one’s working life. The Minister said in another place that they intend to extend this sort of surveillance process to other data areas. Can the Minister tell us what other areas and when that extension might take place?

The third issue is AI safety, an issue that has already been raised by a number of noble Lords. The Government were quite bushy tailed about their recent AI Safety Summit and the commitment to see the UK as a world leader. I am afraid that every time I hear this phrase “a world leader” I have the urge to throw up in my handbag, so you will pardon me if I wrinkle my nose at that. The fact that we want to be somewhere in the front pack on AI safety and responsible and safe AI innovation is okay, but the Bill is a missed opportunity. I agree with my noble friend Lord Knight of Weymouth that the Bill should be the place where oversight challenges posed by a very fast-moving set of AI developments, such as in biometric technologies, needs to have been gripped.

I was a victim of a biometric technology development when I was chancellor of Cranfield University. It developed a process for detecting microscopic and invisible beads of sweat above your eyebrows if you were put under pressure, and it was to be used in cases of airport security and various other areas. They decided to put me under pressure by making me stand in the main square of the university and answer mental arithmetic questions over a loudspeaker. What they had not quite grasped is that I know I am rubbish at mental arithmetic, so it put me under no pressure whatever, because this was not going to be news to anybody. It therefore failed to detect microscopic sweat. I thought you might like the day to be raised by a humorous account in this pre-Christmas process.

The Bill is a real missed opportunity to grasp those AI developments and the safeguarding that needs to go with them. In fact, you could say that it erodes further the already inadequate legal safeguards that should protect individuals from discrimination or disadvantage by AI systems making automated decisions. We have heard about job hiring and loan applications; this is, “The computer says no”, but on speed. We in your Lordships’ House deplore late additions to Bills, although we have rather grown used to it in recent months, but if the summit’s assurances are not going to seem a bit hollow, it would be good to hear whether the Minister intends to introduce additional measures on AI safety in the Bill and, if not, in what other legislation and to what timescale.

The fourth issue I want to raise is that of the role of the Information Commissioner’s Office, soon to be the Information Commission. I entirely approve of the structure of an information commission as opposed to a commissioner. We need a powerful and effective regulator. The ICO’s enforcement and prosecution record has not been sparkling, with low levels of enforcement notices, prosecutions and fines. If, when I was at the Environment Agency, I had had as low a level of those as the Information Commissioner has had, I would think I had gone to sleep somewhere along the line. Does the Minister acknowledge that improvements need to be made to the Bill to ensure that the new Information Commission has a clear statutory objective and is clearly independent and at arm’s length from government, not the sort of arm’s length that becomes very short in times of crisis, that its regulatory function at a judicial level can be effectively scrutinised, that it retains the office and surveillance camera commission rather than simply wiping them from the script, and that it is able to consider class action complaints brought by civil society organisations or the trade unions?

In my experience, all too often, Governments plural, not just the current Government, establish watchdogs, then act surprised when they bark, and go and buy a muzzle. If the public are to have trust in our digital economy, we need a robust independent watchdog with teeth that government responds to. The Bill will need a lot of work, and there are hours and hours of happy fun in front of us. I look forward to the Minister’s response to my questions and to those of other noble Lords. I also look forward to the maiden speech of the noble Lord, Lord de Clifford.