Data (Use and Access) Bill [ Lords ] (Third sitting)

Ben Spencer Excerpts

Committee stage
Tuesday 11th March 2025 Public Bill Committees

[The Minister for Data Protection and Telecoms (Chris Bryant)]

It may assist the Committee to know that, when there is no great controversy about a clause and all I am doing is reminding people what is in the clause and the explanatory notes, I will move that the clause stand part formally. We are now starting to discuss part 5 of the Bill, which relates to GDPR. This clause is completely and utterly self-explanatory.

[Dr Ben Spencer (Runnymede and Weybridge) (Con)]

It is a pleasure to serve under your chairmanship again, Mr Turner. This part of the Bill relates to GDPR. Although there are some amendments that we will debate later, it makes sensible and long-overdue clarifications with regard to GDPR and the interaction with data protection, particularly through some updates to the use of secondary data for scientific research, which I suspect we will discuss when we come to the next clause.

Question put and agreed to.

Clause 66 accordingly ordered to stand part of the Bill.

Clause 67

Meaning of research and statistical purposes

[Chris Bryant]

I beg to move amendment 13, in clause 67, page 75, line 26, leave out

“and that is conducted in the public interest”.

This amendment removes words from new paragraph 2 of Article 4 of the UK GDPR (meaning of processing for the purposes of scientific research). The words were inserted at Report stage in the Lords.

The UK has a proud tradition of innovative research. Our researchers are at the forefront in fields from quantum computing to medicine—for example, leading on pioneering vaccine development during the covid-19 pandemic. Scientific research can bring life-changing benefits to our society and economy. Given that importance, the UK data protection framework contains certain accommodations for processing personal data for research purposes while maintaining key safeguards. The clause, as proposed by their lordships, would require an up-front public interest test for processing to be considered as scientific research and eligible for these accommodations. We disagree with that.

We agree with wanting to avoid misuse of the term “scientific research”, but as the Royal Society has said clearly, the reasonableness test that is now in the Bill provides adequate protection against that. The new test, provided by the Lords, would also be at odds with the internationally recognised Frascati definition, which does not mention an up-front public interest test.

Such a test would be a new burden on many researchers. The Royal Society is concerned that that could have a negative effect on the conduct of research. The Government agree and are especially concerned about the impact on basic and curiosity driven research. The public benefits from such research may not be known at the time, yet with hindsight may be overwhelming. Many of the great discoveries in scientific history, from penicillin to the electron, originated from research that had no anticipated public interest benefit. No one could know how valuable they would be to us now. Even the mRNA-based vaccines that saved millions of lives during the covid-19 pandemic drew on curiosity-driven research that for years had had no practical applications.

That is research that we should be supporting, not stifling. An up-front public interest test could have a chilling effect on it, which is not in the long-term public interest. Our amendment would therefore remove the public interest test inserted by their lordships.

[Dr Spencer]

I listened carefully to the Minister’s remarks on the Government’s position on the public interest test, which was extensively debated in the other place. I have a great deal of sympathy with what their lordships were trying to achieve in parts of that amendment. We are talking about the secondary use of data for scientific research and, as I understand it, the public interest test is used in other types of scientific research tests—for example, with public health data. Therefore this is not something which is completely alien to the concept of defining scientific research. However, I do concede there is an issue with how one can define scientific research.

I think what people are nervous about—particularly in some of the conversations I have around this new definition of scientific research for use for secondary data processing—is this being hijacked by artificial intelligence data companies as a way of getting around some of the challenges with using big datasets for which they do not necessarily have licensing arrangements. I know we are going to come on to that later in the Bill. I would be grateful if the Minister could explain his thoughts and considerations about removing this public interest test. How would that interact with some of the concerns about AI and data use?

From a personal perspective, my concept of scientific research has an altruistic component to it. At least with the scientific research with which I was involved, the whole point was that it was information that is shared freely. Clearly there are challenges and considerations on which one needs to focus when it comes to research being done for commercial benefit. I know part of the debate in the other place was about commercial versus non-commercial research. It is important that scientific research can be commercial. In fact, it must be. However, I appreciate that there is a sentiment that their lordships were putting forward as part of the test.

I would be grateful if the Minister could address, first, some of the concerns around AI companies and secondly how we can capture the essence of scientific research so that when people are do secondary data analysis it is done properly. When it comes to the audit component, a lot of this data analysis is people marking their own homework. Some of the data is not going through human rights committees and being scrutinised in that sense. What assurances can the Minister give that the process will operate properly and that research that is scientific will be legitimately so once these clauses are passed?

[Chris Bryant]

First, the hon. Gentleman is right that there are other areas where there is a public interest test. In those other areas it is actually very narrow, however. The public interest test is currently only applied to research using special category data under schedule 1 to the Data Protection Act 2018 and public health data. It is quite specific. This is why we are nervous about extending the test across the whole of data protection. It is appropriate, we think, to have that extra protection for those particularly sensitive areas, but we think it would be disproportionate to make all researchers meet that standard, regardless of the type of data they are using.

The hon. Gentleman mentions AI companies, and the matter was of course raised in the Lords. It is worth reminding the Committee that the clause narrows rather than expands the definition of scientific research. As the provisions of the Bill make clear, web scrapers seeking to reuse personal data for purposes such as training AI models must have a lawful basis. Before even considering the meaning of scientific research, a web scraper would need to pass the balancing test to use the legitimate interest ground. The Information Commissioner’s Office outcomes report, published last year, emphasised that:

“Web scraping for generative AI training is a high-risk, invisible processing activity. Where insufficient transparency measures contribute to people being unable to exercise their rights, generative AI developers are likely to struggle to pass the balancing test.”

In other words, AI companies should not be doing precisely that which he is concerned they would.

[Dr Spencer]

The Minister says that the changes in the clause narrow the scientific test. That certainly was not my understanding and I would be grateful if he could clarify. Currently, under scientific research, only three criteria can be used under GDPR: statistical purposes, archiving, and genealogical-type purposes. The clause expands secondary data use under GDPR quite substantially.

[Chris Bryant]

If an area of research does not currently count as scientific research, it will not do so under the Bill. Researchers will benefit from having a clearer definition in legislation that reflects the language buried in the recitals and the current ICO guidance. We believe that improving clarity will reduce uncertainty, the risk of misinterpretations and misapplication of the law. The Government will of course monitor the reform’s impact and how researchers navigate the data protection framework. We think that will help us better understand if further changes are required.

The fundamental point is that their lordships inserted a public interest line that we are seeking to take out. They inserted it because they believed it would mean that no data would be used in a way that did not lead to eventual good outcomes. The truth is that when someone starts a piece of research based on curiosity they might have no idea what the final outcome will be. That is an important part of how most researchers work, whether in a commercial or non-commercial setting. That is why the Royal Society has unambiguously stated that if we retain their lordships’ public interest provision, it will have a chilling effect on research in the UK. That is why I commend the amendment to the Committee.

[Dr Spencer]

The matter turns on how we define public interest. I appreciate the concerns about the clause. Being a scientific purist, I could argue that even blue-sky research could be justified as in the public interest, provided that we all benefit from the fruits of that knowledge when it is shared. Notwithstanding that point, I will go back to the Minister’s comment. I understand that the point of the clause is to expand the definition of scientific research from the currently narrow criteria under GDPR, so there will be research that is currently not scientific research that will be permitted as a consequence of the clause.

[Chris Bryant]

I will try one more time to persuade the hon. Member, but I will be repeating myself. The Government are not expanding the meaning of scientific research. The Bill’s definition is completely in line with present ICO guidance, which states that commercial organisations can also carry out scientific research. Scientific research conducted by commercial organisations can have a life-changing impact, as many hon. Members have noted, but the definition does not cover any commercial activity: it only includes activities that could reasonably be viewed as scientific research.

Amendment 13 agreed to.

Clause 67, as amended, ordered to stand part of the Bill.

Clauses 68 and 69 ordered to stand part of the Bill.

Clause 70

Lawfulness of processing

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[Chris Bryant]

As we have several provisions here, it might be worth me making some comments. Clause 80 strikes the right balance between helping organisations to make the most of emerging technologies that drive up economic growth and productivity, while maintaining public confidence. Organisations will be able to make decisions that have significant effects for individuals based solely on automated processes in wider circumstances than presently, but they must implement stringent safeguards.

Those safeguards include individuals’ right to challenge and obtain human intervention if they are not satisfied with the decision. Where law enforcement agencies process personal data for a law enforcement purpose, they will be able to apply an exemption to the safeguards in very limited circumstances, such as to safeguard national security. Where that happens, a human must reconsider that decision as soon as reasonably practicable after it is taken, and that review must be meaningful. For the intelligence services, where entirely automated decision making is used, we are making clarifications to provide greater confidence to controllers and the public.

Schedule 6 contains minor and consequential amendments to UK GDPR and the Data Protection Act. Those amendments repeal and replace references to the current rules on automated decision making with the reformed rules in clause 80 of the Bill to provide legal clarity.

On new clauses 1, 4 and 24, the Government’s algorithmic transparency recording standard, or ATRS, enables public authorities to publish information on how and why they are using algorithmic tools. That includes a description of the human role in the wider operational process of which the tool is part. More than 50 ATRS records are now published in the repository, with more to follow shortly. Where these amendments seek to ensure that such tools are evaluated, the blueprint for modern digital government, which was laid in Parliament in January, makes it clear that part of its role will be to offer specialist assurance support, including a service to rigorously test models and products before release. I hope this provides reassurance to the hon. Member for Harpenden and Berkhamsted.

I will address new clauses 7 and 26 together, as they intend to achieve the same effect. I would again like to reassure hon. Members—I am trying to offer a lot of reassurance to the hon. Lady and to the hon. Member for North Norfolk—that the data protection framework has stringent safeguards in place for solely automated decision making. The UK GDPR transparency obligations already require organisations to notify individuals about the existence of solely automated decision making and to provide meaningful information about the logic involved.

Under our reforms, after a decision has been made, organisations must also provide data subjects with information about that decision. These information requirements enable individuals to exercise the safeguards I mentioned earlier, and are in addition to the wider transparency requirements of the framework. The safeguards in the reformed article 22 are unnecessary for partly automated decision making, since these decisions already include meaningful human involvement by definition.

When it comes to high-risk decisions, there are already additional requirements for processing that can result in a high risk to the rights and freedoms of individuals, including automated decision making. Controllers must carry out an impact assessment for such processing activities and consult the Information Commissioner’s Office where such an assessment indicates a high risk to individuals in the absence of effective measures. That process ensures that potential risks are identified and addressed. I therefore hope that the hon. Members for Harpenden and Berkhamsted and for North Norfolk feel that they do not need to press their new clauses to a vote.

[Dr Spencer]

This is a really interesting set of clauses. The debate that we are having, and that they had in the other place, on automated decision making is particularly interesting.

Of course, automated decision making is here. It is everywhere in every part of our lives. I was just looking at the Spotify app on my phone, and my daylist suggested that I start off by listening to Front Line Assembly, which is an industrial metal band. It is probably because, going into the data Bill Committee on a Tuesday morning, I need something to get me started.

[Chris Bryant]

Don’t get me started.

[Dr Spencer]

Ah, the temptation.

The point about automated decision making is that decisions can be made about people without their involvement, which can have substantial consequences, particularly when decisions are made in the public sector. Of course, automated decision making takes place all the time, day in and day out. We saw it on a huge scale during the covid pandemic when people had to sign up to universal credit, as there were checks on people’s basic characteristics and assets to assess their eligibility. Those decisions had quite a substantial impact on people, but the data points were actually quite simple and straightforward. As I understand it, no particular concern was raised about automated decision making in that context, apart from a few examples where people’s circumstances were remarkably unique.

The purpose of the Bill is to scale up, particularly when it comes to AI and more sophisticated decision making. We think the new clauses seek to place onerous and unnecessary obligations on Government bodies and public authorities. New clause 1, among other things, would require public bodies to give notice on a public register for each and every function they perform where automated decision making is used. New clause 4 would oblige the Secretary of State to put in place and maintain a public register of all semi-automated or fully automated decision-making tools used by public authorities in relation to individuals, with public bodies being precluded from using such tools in advance of their registration.

New clause 7 would provide service users with a range of powers to request information from data controllers in relation to the workings of wholly or partly automated decisions, and to purportedly high-risk decisions. I am amazed by the provisions suggested in new clauses 7 and 26 by the hon. Members for Harpenden and Berkhamsted and for North Norfolk. They seem to give quite extensive discretionary powers to the Secretary of State to define high-risk decisions and regulate them accordingly. I was surprised to see the extent of the powers handed over to the Secretary of State by these new clauses.

The new clauses are especially burdensome and unnecessary, given the widespread use of automated decision making for initial assessments in the Department for Work and Pensions, as I alluded to earlier. Automated decision making is a subject of significant debate, and clause 80 includes more safeguarding measures in proposed new article 22C of the UK GDPR. Those safeguards include requirements on data controllers to provide information to data subjects about significant decisions being taken through solely automated processing, the right to contest those decisions and the right to seek human intervention at the request of the data subject.

Our view is that clause 80, as drafted, provides a proportionate approach to the protection of individual rights, and that these tools will help with potential speed and, importantly, efficiency gains, which I mentioned earlier with regard to the use of automated decision making for universal credit in the response to covid. The basic functions of Government and public authorities rely on widespread automated decision making.

[Victoria Collins]

I like to think that the Liberal Democrats are aligned on automated decision making and AI being an exciting opportunity for this country, but it is a fundamental shift. It is our job as a constructive Opposition to put forward proposals for consideration, so that there is proper scrutiny and ideas to ensure we take the public with us. All our proposals are made in that light.

Behind these decisions are real people’s lives. I have a family in Wheathampstead who are desperate for a social home to fit their family life. I have someone from Tring—I will call him John—who says he has been systematically failed since high school. His universal credit claim was closed because he did not upload the correct documents, and he feels that a lack of human understanding of why he was unable to do so was a barrier to getting the help he needed. Another case involves HMRC, with a constituent being taxed on pension income he is not actually receiving—it was only after hours of support from my team and the Department that we were able to turn his case around.

The point is that it will be very difficult for people to fix errors that result from automated decision making if there is not enough transparency. We have to get that balance right. The Secretary of State’s power to define crucial terms such as “meaningful human involvement” and “similarly significant effect” creates uncertainty and the potential for watering down protections.

Clause 80 seeks to update the safeguards around automated decision making, but organisations such as Justice and the Open Rights Group have real worries that it weakens those vital safeguards by broadening the scope for purely automated decisions. Furthermore, the considerable powers granted to the Secretary of State to amend or set aside the safeguards through secondary legislation create a concerning lack of parliamentary oversight.

It is with these reservations in mind, and as a constructive Opposition, that we tabled these new clauses. New clause 1 would place a clear requirement on public sector organisations regarding the use of algorithmic automated decision making. It would demand public notice of their use and the provision of meaningful and personalised explanations to affected individuals about how and why a decision was made. I have already raised some cases that the provision would impact, and I am sure we all have similar cases in our inboxes. New clause 1 directly tackles the concerns about transparency and the right to an explanation—a principle that the Liberal Democrats firmly believe in.

New clause 4 proposes the creation of a publicly accessible register of AI and algorithmic tools in the public sector. New clause 7 seeks to empower individuals by granting them the right to request comprehensive information on decisions based wholly or partly on automated processes that have a legal or similarly significant effect on them. This aligns with the Liberal Democrats’ commitment to ensuring accountability and redress.

New clause 24 proposes the establishment of a public register of all automated or semi-automated systems used by public authorities to make or materially influence decisions. These measures would help to promote transparency and enable public scrutiny, which is something that this House and its Members are here to do, either through legislation or for our constituents on a daily basis. It is important that we ask questions about these increasingly influential technologies.

Finally, new clause 26 would reinforce the right to an explanation by requiring data controllers to provide, on request, clear explanations of high-risk AI decisions. We need to ensure that meaningful human involvement remains central.

The new clauses are not intended to stifle innovation, but to ensure that the evolution of data use is guided by principles of fairness, transparency and accountability. We must ensure that data truly is the new gold for everyone, and that individuals’ rights and protections are not devalued in the process. Indeed, innovation is often better promoted by guidelines. The new clauses represent our commitment to ensuring that clause 80 truly modernises our data laws without sacrificing the fundamental safeguards that protect everyone, including the people behind those decisions. I thank the Minister for his consideration.

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[Chris Bryant]

I think the hon. Member for Runnymede and Weybridge thinks I was trying to calumniate him earlier by suggesting that he does not pay for his music, but I was not making that suggestion at all.

Clause 81 amends article 25 of the UK GDPR to strengthen the obligations for providers of information society services likely to be accessed by children, such as social media platforms and streaming services, by requiring them to actively consider the protection of children’s data when designing their services, and to ensure that appropriate organisational and technical measures are in place to safeguard young users.

The clause sets out the higher protection matters that ISS providers must consider when designing their services, including how best to protect and support children when processing their personal data. The duty also requires data controllers to consider the fact that children merit specific protection because they may be less aware of the risks and their rights, and the fact that children’s needs vary with age and development. When considering how to comply with the new duty, ISS providers will be greatly aided by the age-appropriate design code issued by the Information Commissioner’s Office, which sets out comprehensive guidance for ISS providers on using personal data in a way that complies with data protection principles and respects the best interests of children.

New clause 21, in the name of the hon. Member for Harpenden and Berkhamsted, would in effect increase the age of consent for social media from 13 to 16. I am happy to listen to her comments, but much of this was debated in Friday morning’s private Member’s Bill debate—I think that is partly what led her to table the new clause—and in the Westminster Hall debate a few weeks ago. I am happy to respond to her comments, but we will be resisting her new clause.

[Dr Spencer]

At the heart of new clause 21 is the aim to restrict access to certain social media platforms by children under the age of 16. I am very sympathetic to the motivations of the hon. Member for Harpenden and Berkhamsted.

[Victoria Collins]

I just want to clarify that the new clause is about the age of data consent, not access to social media. I will cover that in my speech, but I want to ensure that is clear.

[Dr Spencer]

I thank the hon. Lady for that clarification. Nevertheless, I think there is an overlap with the debate that took place in the Chamber last Friday on the ballot Bill introduced by the hon. Member for Whitehaven and Workington (Josh MacAlister), which has been dubbed the safer phones Bill. We all took part in that debate.

During Friday’s debate, I highlighted the mounting research and evidence on the harm to adolescents’ mental health from social media platforms. Policy in this area needs to be developed based on the best data and evidence. In that regard, we also need to learn from the roll-out of the Online Safety Act 2023 and the implementation of Ofcom’s guidance on putting in place age assurance in relation to particular types of content and data.

I welcome reports that the Government intend to commission the chief medical officer to review the harms associated with this area. It is disappointing that the Minister did not give a firm commitment on that from the Dispatch Box last Friday. Will he take the opportunity to do so today?

[Victoria Collins]

I start with the young people at the heart of this. We have indeed debated this time and again, and it is important that we keep that going. I have been on a Safe Screens tour, speaking to young people across Harpenden and Berkhamsted—from Ashlyns school in Berkhamsted to St George’s school in Harpenden, and beyond. Girl guides have spoken to me of their concerns about online bullying and harmful content. When I visited local schools on my Safe Screens tour, young men told me that social media has shown them extreme content that they do not want to see, and despite their efforts to block or ban it, the algorithm brings it back. Young women have told me of their worries about the growing misogyny in online content. Together, young women and men alike have talked about the impact on their body image, bullying and the amount of time sucked up by social media—time they want to spend doing other things.

There is mounting evidence of the negative effects of our children’s exposure to an unsafe online environment. Every day, we hear the concerns of parents, the anxieties of teachers and, crucially, the voices of young people themselves, all crying out for action to ensure their safety online and calling for stronger regulation of their online experience. I realise that the Online Safety Act is moving forward, but it will not go far enough.

This is a matter of profound importance for the wellbeing of our nation’s children and young people. The digital world is now the fabric of our lives and the lives of young people—it is where they learn, connect and seek entertainment—and yet, as the digital landscape expands, so do the risks they face. As 5Rights highlights,

“the enormous potential of technology can only be realised when it is designed with children in mind”.

Parliament now has an opportunity, perhaps even an obligation, to help shape that technology. It is disappointing that the safer phones Bill was watered down, so we have tabled new clause 21 as a crucial step to strengthen protections for young people in the digital age. It seeks to bring UK data law in line with many of our European neighbours, by raising the minimum age at which internet companies can collect, process and store a user’s data without explicit parental consent to 16.

New clause 21 is not about banning children under the age of 16 from accessing social media. It is important that the responsibility lies with the social media companies to ensure that online spaces are age-appropriate, and to manage content and features. This new clause is a targeted and proportionate measure to require online services to change fundamentally how they handle children’s data. This crucial change will necessitate restricting the pervasive and often harmful influence of algorithms to make the platforms inherently less addictive and ultimately foster a more child-friendly digital environment.

It is imperative that digital technology is designed with the best interests of our children and young people at heart, ensuring that their rights and privacy are upheld—not as an afterthought, but with safety by design and by default. Furthermore, new clause 21 underscores the fundamental principle that the responsibility for managing content and features must remain firmly with the social media companies. We call for the establishment of robust digital standards to ensure that platforms prioritise child safety and privacy as their default setting, rather than as an optional extra.

Our duty to protect children online, however, cannot end with new clause 21. We call on the Government to take further action, such as explicitly recognising and treating children’s use of social media as a critical public health issue, thoroughly examining international best practice, identifying innovative solutions to the challenges we face, and developing evidence-based policies that will demonstrably improve online safety for children. I welcome the Government’s proposal last week to introduce a cross-Government safer screens taskforce to look at research into the multifaceted impact of social media on children’s wellbeing.

This is not an overnight phenomenon. Last year marked 20 years since Facebook was created and 18 years since the smartphone was launched. We now face mounting calls from young people, parents and teachers. Now is the time for greater action on the gaps left by the Online Safety Act. I urge the Government to recognise the urgent need for decisive action and to support new clause 21. This is a pivotal opportunity to strengthen protections for young people online and to cultivate a digital world where they can thrive, not merely navigate potential harms. Let us work together across party lines to ensure a safer and brighter digital future for all our children.

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[Chris Bryant]

I rise to speak primarily to new clause 27. The Government are committed to the independence of the regulator, which will continue to be accountable to Parliament. The Bill does not introduce a statement of strategic priorities, as the hon. Member for Harpenden and Berkhamsted seems to suggest in her new clause, nor does the Secretary of State issue discretionary guidance to the regulator. Neither the Bill nor existing legislation provides for the Secretary of State to amend or reject a code of practice. I therefore do not see that this new clause is necessary.

[Dr Spencer]

I have a specific point on the text of new clause 27. We do not support this curtailment of powers, particularly in this context. I am sure that the Secretary of State will consult as a matter of course in carrying out his duties, whatever they are, and a specific requirement to consult the Science, Innovation and Technology Committee, notwithstanding its prowess and stature, would be inoperable.

[Victoria Collins]

For us, the amendment is again in the spirit of ensuring proper scrutiny. However, I welcome the Minister’s comments and am happy not to press it.

Question put and agreed to.

Clause 92 accordingly ordered to stand part of the Bill.

Clauses 93 and 94 ordered to stand part of the Bill.

Clause 95

Regulations under this Part: Parliamentary procedure and consultation

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[Chris Bryant]

Clause 95(1) relates to artificial intelligence and copyright and the related reporting requirement on the Information Commissioner. I will set out our fuller reasoning on copyright shortly, but for now, I merely state that we believe that now is not the right time to place an additional reporting obligation on the Information Commissioner in the Bill. Government amendment 22 would therefore remove subsection (1), which was added to the Bill on Report in the Lords.

Subsection (2) requires the Information Commissioner to publish key performance indicators. The Government take the performance and accountability of UK regulators seriously. Regulators undertake important functions across our economy and society, and the Information Commissioner’s Office is no exception, so it is important that Parliament and other stakeholders have the right means to hold them to account. Publishing such metrics is best practice and a transparent way of providing measurable analysis of the ICO’s performance year on year. This forms part of a package of additional reporting requirements, alongside those in clause 91 and the report on regulatory action in clause 102, which we will discuss later. Together, they will increase understanding and transparency about priorities, performance and enforcement activities.

Clauses 135 to 139 are in this group, although we will vote on them later. They set out further requirements regarding copyright and AI, and I urge that they do not stand part of the Bill. These clauses require regulations to be made to ensure compliance with copyright law by web crawlers and general AI models, and transparency about the use of web crawlers and the works they scrape. There is also an enforcement requirement for the Information Commissioner, and provision on a review of technical solutions.

The Committee well knows, because I have mentioned it several times, that I agree with many of the points raised in debate on the clauses and the importance of transparency for rights holders in the creative industries. It was one of the key principles in the consultation we published on copyright and AI that closed on 25 February. We want genuine transparency about what is used in training AI, alongside rights holders’ control of their work and appropriate access to training material for AI. However, although I accept the intention behind the amendments—that is, clauses 135 to 139, which were added in the Lords—we do not believe that the Bill, which is a data measure, is the right vehicle for action.

We received more than 11,000 detailed and heartfelt responses to our public consultation on AI and copyright. Many set out specific views on transparency, technical standards and a range of the questions that we asked in the consultation. We are taking care to read each response. Although we believe that action needs to be taken on transparency and web crawlers, as well as other issues relating to AI and copyright, it is only right that we carefully consider all the viewpoints and evidence before acting. We have heard loud and clear the message that stakeholders do not want us to rush to legislate on this topic, and we intend to heed this message. Yesterday the Secretary of State met representatives of the creative industries and repeated that point.

The engagement will not end with this consultation. I have already stated our intention to create working groups to move the conversation forward, including on technical solutions. Industry often comes up with the best ideas, so I want to harness that, whether it is greater transparency about AI training or standards on web crawlers, metadata and watermarking. Whatever the solution, we want to be confident in its efficacy and, critically, in its simplicity and accessibility. We have said repeatedly that we will not move forward in this sphere unless we are confident we can give rights holders greater control over the use of their works. Once we have analysed the responses to the consultation, we will publish proposals. Clauses 135 to 139, which were added to the Bill on Report in the House of Lords, should not stand part of the Bill.

Opposition new clauses 17 to 20 also relate to AI and copyright. I am grateful for the way in which the shadow Minister, the hon. Member for Runnymede and Weybridge, has advanced these suggestions. These new clauses would require the Secretary of State to issue a statement on the application of UK copyright law to the activities of web crawlers and artificial intelligence models. One of the new clauses sets out the possibility of this being a copyright notice, issued by the Intellectual Property Office. They also require the Secretary of State to produce two reports, one of which should include a plan for transparency regarding the use of copyright materials with AI; the other should be on access to data and how to reduce market entry barriers for start-ups and smaller AI enterprises. Finally, they would require the Secretary of State to publish a technical standard for a machine-readable digital watermark, which would allow rights holders to label their content for the purposes of licensing.

As the House is aware, these amendments relate to matters that are at the heart of the government’s approach to AI and copyright. Indeed, the recently closed consultation sought views precisely on these issues. I commend my Conservative colleagues on the spirit of these amendments, but ask that they not be pressed at this time. I hope we can have further discussions on how we move forward on Report. While the amendments may indeed offer useful steps for the Government to take in solving issues of AI and copyright, proper analysis and policy development is likely to take longer than the proposed timeframes included in the clauses, given the 11,000 responses we received to the consultation. In addition, we would not wish to pre-empt the consultation, which some of these proposed clauses may do.

That said, I hope that I can discuss the issues raised by the amendments further with Members from both Opposition parties, to discuss whether we might be able to agree on similar proposals as we move forward. As I say, we take these issues seriously. As I am the Minister for Creative Industries and a Minister in the Department for Science, Innovation and Technology, I take a special interest in this and agree with the spirit of what these amendments seek to achieve, but I ask that new clauses 17 to 20 not be pressed at this stage.

[Dr Spencer]

Equally I thank the Minister for the spirit in which he has conducted this debate. It is an important one, which has captured the focus of a great many people, not only those in the creative and AI sectors whose livelihoods absolutely depend on us getting this right, but all of us who love and benefit from the products of the UK creative industries.

I will discuss clauses 135 to 139, which the Government are seeking to remove, before I speak to the new clauses that stand in my name and those of other Opposition Members. While there are problems with clauses 135 to 139, they do reflect the creative industries’ well founded and much publicised concerns about the manner in which AI developers conduct data mining activities to train their models and for generative activities. I should declare an interest; I recently attended the Brit awards with my wife with support from the British Phonographic Industry, so I received hospitality in the last couple of weeks.

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[Chris Bryant]

And are hated by others.

[Dr Spencer]

The Minister can interpret that how he wishes. We must ensure that our creative industry is supported to thrive while harnessing the technological and economic benefits of growing our domestic AI capability. The amendments in this area from the other place touch broadly on a number of important principles, which we support. They include the application of copyright law to data mining and AI-generative activity, which is covered in clause 135; the need for high transparency in how AI models are trained and the materials used for that purpose; and the importance of identifying sound technical solutions so that copyrighted content can be identified by web crawlers and AI models excluded from training and generative activity.

However, these matters and their solutions are complex from technological, legal and societal perspectives. We totally recognise the challenges of legislating in this area. Our international counterparts face the same challenges in trying to strike an effective balance between supporting our AI industries and supporting our creative sector. It is not a zero-sum game. There is clear scope for collaboration and mutual benefit if we get this approach right. As the shadow Secretary of State for Science, Innovation and Technology, my hon. Friend the Member for Havant (Alan Mak), stated in the Chamber, creative industries are telling us that the Government’s solution—set out in their consultation as their preferred option—is “not fit for purpose”. We need to engage carefully with the feedback received from industry stakeholders to come up with the right solutions in this area.

As the Minister mentioned, new clauses 17 to 20 recognise that putting together a specific plan in great detail on how to solve this problem needs to be done by chewing through the information from the ongoing consultation and through extensive engagement with the people who are actually going to do this stuff and the people who will be affected by it. In effect, the proposals are end-point clauses, about the world we want to see in the future, where our AI and creative sector can work together and we get all the benefits from both. It is where we want to get to. It is a bit less about putting together the journey plan of how we get there, with the exception of the fact that the Government need to crack on and sort this out—[Interruption.] Well, he’s the Minister. It comes with the job.

New clause 17 is intended to require the Government to confirm the application of existing copyright law to creative content mined by AI web crawlers and models in the same way that it would apply to other offline content. The Opposition feel that there is no ambiguity about the application of copyright law in this context. However, the Government have consistently suggested, in their consultation on copyright and artificial intelligence and elsewhere, that the legal position is unclear. In effect, that has created ambiguity and given rise to significant concern and objection from the creative sector. It deters smaller AI enterprises and start-ups from developing their products.

Running counter to that is the near existence of a possible future opt-out. I have heard evidence that AI companies are now thinking, “Let’s hang on before we buy licensed content, because we might get it for free anyway if this applies going forward.” If the aim was to give confidence to the AI sector, as was dealt with by the consultation, that has not happened either.

Clarity is needed for both the creative and AI industries, but not in the form of a wholesale exemption from copyright law for development and generative activity undertaken by AI models. The Government should make a clarificatory statement about the existing application of copyright law in this area. That certainty is the foundation block of sound policy aimed at supporting the creative industries to harness the economic value of their work, so I commend new clause 17 to the Committee.

New clause 18 requires the Government within three months of Royal Assent to lay before Parliament a plan to put forward proportionate and effective measures to ensure transparency in the use of copyright materials in training, development and generative activities of AI models, with emphasis on the proportionate and effective nature of the measures. At a high level, ensuring transparency in this area will help to ensure that information is available for rights holders to discern where and how their work has been used, and seek payment for the use of their work where appropriate.

New clause 18 seeks to address the widespread concerns of creative rights holders that they do not know when their material is being used, which acts as a block to any form of enforcement of their rights or licensing going forward. However, the approach to transparency must be proportionate. In particular, transparency obligations should not be so onerous that they stifle the market for AI start-ups and smaller enterprises in their infancy, when these entities should form the lifeblood of our future technological economy. One could envisage a situation where, if we get the legislation on this wrong, the recording and storing of information that has created a model, in its extreme triviality, could in effect become a bigger dataset than the set used in the first place— hence the focus on the importance of proportionate and effective measures.

The timing of the action to be taken by the Secretary of State under the new clause—within three months of Royal Assent—is intended to give the Secretary of State a proper opportunity to consider the feedback of the creative and AI industries and other stakeholders received under the recently concluded consultation on copyright and AI. I am ambitious for the Minister and the Government. I know he slightly deprecated his ability to get on and try to put something together, but I have faith in him to drive this forward. The feedback should help to formulate a plan that is both effective and workable, so I commend new clause 18 to the Committee.

New clause 19 requires the Secretary of State within three months of Royal Assent to lay before Parliament a plan to reduce barriers to market entry for start-ups and smaller AI enterprises, specifically in relation to access to data to train their models. The Government’s now concluded consultation on copyright and artificial intelligence specifies that one of its key aims is to support wide access to high-quality material to drive the development of leading AI models in the UK.

The AI opportunities action plan commissioned by the Government made a series of recommendations relating to the need to unlock public and private datasets to enable innovation by UK start-ups and researchers in order to attract international talent and capital. Although the imbalance in access to resources between established companies and start-ups and small and medium-sized enterprises is in the nature of markets, failing to address that in this context risks reinforcing a situation where AI development activity remains the preserve of a relatively small number of established operators. I am thinking particularly of those that have been able to set up now, using datasets that have not had to comply with whatever provisions will eventually be put in place to regulate this area.

The Prime Minister indicated in his response to the action plan that DSIT would look at how to take this policy area forward. New clause 19 calls on the Government to put their money where their mouth is, and come up with a proper plan to turbocharge not only growth in our AI sector, but diversity and competition among operators of all sizes, by coming up with a plan to reduce the barriers to market entry that the accessibility of data presents.

Given the increasing adoption and use of AI by digital Government and the mechanisms of the state, it is critical for our national security and our national resilience to have a functioning domestic AI market that we can draw on for our use. The timescale for the Secretary of State to publish his report provides an opportunity for industry and stakeholder feedback to be taken into account when developing effective plans. For those reasons, I commend new clause 19 to the Committee.

Finally, new clause 20 requires the publication of a technological standard. I hope that the previous three new clauses are relatively uncontroversial, and I particularly hope that this new clause is the most uncontroversial of all. It is based on an amendment that was moved by my noble Friend Viscount Camrose in the other place, but which was withdrawn on receipt of reassurances from the Minister. The new clause requires the Government to publish a technological standard for machine-readable watermarks for the purpose of identifying the licensed content when it is encountered by web crawlers and AI models.

The development of such a standard would greatly enhance the ability of rights holders to protect their work, and to support enforcement of creative rights by creating a record of where and how content has been used. The development of a technological standard will be incredibly useful, even if the Government decide to take forward the flawed opt-out proposals and even if they are not ultimately adopted. This technological standard would be used in whatever situation we find ourselves in over the next few years in this industry.

This proposal would provide web crawlers and AI models with clear signposting that the content is not available for training or generative activity. Where that is properly deployed and observed by AI models, it will reduce the need for rights holders to take action to seek compensation for infringement of their copyright. The new clause does not ask the Government to commit to a specific solution, and nor should it, but it requires them to commit to identifying such a solution within a reasonable period. Let the industry sort it out. One of the challenges that has been going through my mind when exploring this area is why, from a point of principle, the market has not fixed this in the first place, and why we are where we are now in trying to resolve these issues. The new clause will promote transparency and certainty for the creative and AI industries, and I commend it to the Committee.

[Victoria Collins]

I have found these discussions among Members across the House about AI and copyright to be a delightful exchange about the creative industries that we love. I understand the Minister’s comments about there being different spaces for that debate and that this may not be the place for that, but I would like to speak to the new clauses that were proposed in the other House.

To highlight one of the creative industries that I love, this weekend I went to The Rex cinema in Berkhamsted, one of the best cinemas in the world—if any Members want to come, they are all very welcome. Sitting there, watching “A Complete Unknown”— about Bob Dylan and his songs—in a local movie theatre reminded me just how important it is to ensure that the creative industries can maintain their creativity, because it speaks to our soul and our society. They are beyond machine learning. They are humans who actually understand us and help to tell our stories in different ways.

That is why the Liberal Democrats welcomed new clauses 135 to 139 that were tabled in the other place. We also welcome the consultation from the Government and are pleased to hear that there have been over 11,000 responses. Members will find responses from us in there, because we wanted to make sure that the Liberal Democrats made representations at every stage. It is disappointing that the change that the Government have set out means there is an “opt in by default” provision, and the message has come across from the creative industries that they are calling for an open consultation, so we can make sure that their views are heard. We support their voices being heard and, indeed, striking that balance where the creative industries can work with innovation, as they have been. This is about getting that right. We are proud of those industries in the UK. We must work together and truly listen to those thousands of voices up and down this country. That is what we stand for, and we will support the Government moving forward in that way.

--- Later in debate ---

It is also true that many creative industries use AI all the time, either as part of their business processes or as part of the actual creative process, whether by editing a song so that it can use voices of people who are no longer with us, through CGI, by dubbing films, or through a whole series of different things. Indeed, I was really struck when I went to Stratford last week to see a magnificent production of “Edward II” at the Royal Shakespeare theatre. They are talking there about creating a new video game that is based on “Macbeth”, called “Lili”, and, of course, that will use a lot of artificial intelligence. A lot of tech companies are part of the creative industry, so I honestly do not think that these are two worlds that are completely apart.

[Dr Spencer]

I am tempted, because we both clearly share a love for the Sugababes, to just draw a reference to that. Of course, the creative industries also have quite a lot of experience of using other creative materials licensed from other producers. For the Sugababes song “Freak Like Me”, I am fairly sure that the sample is directly taken from Gary Numan’s “Are ‘Friends’ Electric?”, and presumably they came to some sort of arrangement in organising that. This sharing of data is not unusual for the creative sector.

[Chris Bryant]

I have often wondered whether Kylie’s song “Padam Padam” is a reference to Edith Piaf’s “Padam padam…” because they are also quite similar. This is, of course, a well traversed space for people working in the copyright sphere: trying to make sure that people are not passing off or using other people’s work without permission. The economic and moral rights of rights holders are well established in UK law. We started the process of legislating for that in 1709, under Queen Anne. Dickens had an ambition to make sure that people could not just take copies of his books to America and sell them for free without any payment to him, which is part of why we ended up with an international copyright regime. We do not want to undermine that.

Transparency is key, and it was one of the elements that we put into our consultation. We need to be careful about precisely how that transparency works out. The hon. Gentleman referred to proposed new clause 18, which he wants us to do something on within three months. As ambitious as he may be for me, that is a remarkably short period of time for parliamentary drafting. After all, a version of the Bill was first introduced four years ago, yet it still does not have Royal Assent. He refers to the terms “proportionate and effective” in that proposed new clause. To go back to “Hamlet”, aye, there’s the rub. What do proportionate and effective mean, and how do you balance the two? Different sectors will have difficult and competing sets of agendas and we may, in some shape or other, have to arbitrate.

The hon. Gentleman is right to say that no one, anywhere in the world, has come to a proper settled position on this issue. In the United States of America, for instance, a lot of AI companies have been relying on fair use, under the slightly different copyright system there, but the most recent federal case found in favour of Reuters against an AI company—the court said that scraping material was not fair use. The EU has not yet fully developed its proposals and has not decided how to implement its transparency requirements. It could be argued that that is one reason why there has not been much additional licensing, which was one of the EU’s declared goals.

There is also the question of how to enforce transparency. The clause—in a provision tabled by the admirable Baroness Kidron—specifically gives that enforcement power to the Information Commissioner. I am not sure that is the right place to put that power, or that the Information Commissioner has the expertise or resources for it. Undoubtedly, if there are to be new transparency requirements, we must have some form of enforcement.

All those things suggest to me that it is not right to put this power as an addendum to this Bill. The matter should be seen in the round, after a consultation, and there should be a proper primary legislation process, which may not happen for another 12 to 18 months, or even two years. I do not know.

The Secretaries of State for Culture, Media and Sport and for Science, Innovation and Technology, and myself, are keen to get to a place where there is more licensing of copyrighted material by AI companies. I do not think anybody expects that the labour of others should be handed over to third parties without recompense or control. That, in itself, is not simple. It might be simple for the Design & Artists Copyright Society to do all the licensing for artists and photographers, but how could that be done for people who works as individuals, rather than as part of a collecting society? That is another set of issues that need to be addressed.

I know there are places in the world where one can buy an AI-generated book, and it might be perfectly readable. We might all have authors who we think have worked in that way in the past. But when I read a book, watch a film, or listen to a piece of music, I want to know that it has a human involved in it. Human creativity is a vital part of what renders that process of creativity so important. I think of humans as fundamentally social beings. One of the worst things that can be done to a human being is to put them in solitary confinement, because that denies our fundamental social being. What is so special about all the creative industries is that they enable a connection from human being to human being. I am passionate about not losing that or the value inherent in that.

Amendment 22 agreed to.

Clause 95, as amended, ordered to stand part of the Bill.

Clauses 96 to 103 ordered to stand part of the Bill.

Schedule 10 agreed to.

Clauses 104 to 108 ordered to stand part of the Bill.

Schedule 11 agreed to.

Clause 109 to 112 ordered to stand part of the Bill.

Schedule 12 agreed to.

Clauses 113 to 115 ordered to stand part of the Bill.

Schedule 13 agreed to.

Clause 116 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Kate Dearden.)