Data (Use and Access) Bill [HL]

Lord Arbuthnot of Edrom Excerpts

Committee stage
Wednesday 18th December 2024 Grand Committee

[Lord Kirkhope of Harrogate (Con)]

My Lords, following on from what I said on earlier amendments, this is worse than what the noble Lord, Lord Clement-Jones, has just expressed. Indeed, I fully support the amendments of my noble friend Lord Holmes. However, this just demonstrates, yet again, that unless we pull ourselves together, with better smart legislation that moves faster, we will never ever catch up with developments in technology and AI. This has been demonstrated dramatically by these amendments. I express concerns that the Government move at a pace that government always moves at, but in this particular field it is not going to work. We are going to be disadvantaged and in serious trouble, unless we can move a bit faster.

[Lord Arbuthnot of Edrom (Con)]

My Lords, I rise briefly but strongly to support my noble friend Lord Holmes. The CyberUp campaign has been banging this drum for a long time now. I remember taking part in the debates in another place on the Computer Misuse Act 34 years ago. It was the time of dial-up modems, fax machines and bulletin boards. This is the time to act, and it is the opportunity to do so.

[Lord Clement-Jones (LD)]

My Lords, we ought to be mindful and congratulate the noble Lord on having been parliamentarian of the year as a result of his campaigning activities.

[Lord Arbuthnot of Edrom (Con)]

My Lords, it has taken 34 years.

[Lord Bethell (Con)]

My Lords, I rise to make a brief but emphatic comment from the health constituency. We in the NHS have been victims of appalling cyber- hacking. The pathology labs in south London were hacked and that cost many lives. It is an example of where the world is going in the future unless we act promptly. The emphatic call for quick action so that government keeps up with world changes is really well made. I ask the Minister to reflect on that.

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[Lord Arbuthnot of Edrom (Con)]

My Lords, I shall speak very briefly. I have a great deal of agreement with what the noble Baroness, Lady Kidron, the noble Lord, Lord Russell, and my noble friend Lord Bethell have said. I am rising to nitpick; I apologise for that, but I suppose that is what Committee is for.

The final line of proposed new subsection (da), to be inserted by Amendment 198, refers to

“different characteristics including gender, race, ethnicity, disability, sexuality, gender”.

On our first day in Committee, I raised the importance of the issue of sex, which is different from gender or sexuality. We need to make sure that we get the wording of this amendment, if it were to be accepted by the Government, absolutely right.

[Lord Knight of Weymouth (Lab)]

My Lords, I shall also speak extremely briefly, as one of the three veterans of the Joint Committee present in Committee today, to reinforce my support for these amendments. The Government should be congratulated on Clause 123. It is welcome to see this movement but we want to see this done quickly. We want to ensure that it is properly enforceable, that terms of service cannot be used to obstruct access to researchers, as the noble Lord, Lord Bethell, said, and that there is proper global access by researchers, because, of course, these are global tech companies and UK users need to be protected through transparency. It is notable that, in the government consultation on copyright and AI published yesterday, transparency is a core principle of what the Government are arguing for. It is this transparency that we need in this context, through independent researchers. I strongly commend these amendments to the Minister.

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I hope we will have a ministerial answer from the Dispatch Box that agrees to deal with this issue as a matter of urgency before Report, not one saying it is complicated. We know it is complicated, but for the postmasters, the nurses or anyone else whose life or livelihood has been taken or threatened by a bug, the status quo is unacceptable. Twenty-five years is too long for the law to assert something that is patently false. The MoJ has been looking at this issue in detail for more than five years and I have sought an urgent answer, along with the noble Lord, Lord Arbuthnot, for the past five months. If it is too complicated for the MoJ, I have a group of eminent lawyers and computer scientists who would happily do the task for it. I beg to move.

[Lord Arbuthnot of Edrom (Con)]

My Lords, I declare my interest as a member of the Horizon Compensation Advisory Board. When, on 24 April this year, the noble Baroness, Lady Kidron, proposed an amendment to remove the presumption about the reliability of computer evidence, the noble Baroness who is now the Minister added her name to it—oh the perils of moving from opposition to government.

My noble friend Lord Camrose—the Minister at the time—in a sympathetic speech, resisted that amendment on the basis, first, that there were shocking failures of professional duty in the Post Office case. This was quite true, but they were facilitated by the existence of the presumption. His second reason was that taking us back to the law of 1999, as the noble Baroness, Lady Kidron, eloquently set out just now, would risk undermining prosecutions because we would need to get certificates of accuracy in cases such as breathalysers and those involving emails. There may have been something in that, so the noble Baroness has proposed an amendment that is designed to get round that second point.

I suspect that the Minister will resist this amendment too, but for reasons that I hope she will set out clearly, because we may then decide to move a different amendment on Report. We are making all the running on this—or at least the noble Baroness, Lady Kidron, is, with my full support and, I know, that of the noble Lord, Lord Clement-Jones. I take a moment out of this Committee to pay tribute to their work ethic in this Committee, which has been quite phenomenal.

The Government do not seem to have the issue quite as close to the top of their priorities as we suggest. Without repeating all that I said on 24 April, I will summarise it as follows. Paul Marshall, the barrister, has pointed out that computer evidence is hearsay, with all the limitations that that implies. Modern computer programs are too large to be exhaustively tested. If computer programs are inherently unreliable, it is wrong to have a presumption that they are reliable. That issue will grow with the growth of artificial intelligence.

The presumption that computer evidence is reliable leads either to such things as we saw occur in the Post Office scandal, with the Post Office essentially taunting the sub-postmasters, saying, “If you can’t show us what is wrong with the computer evidence, we don’t have to show you that evidence”—a shocking case of Catch-22; or to lawyers and courts voluntarily abandoning the presumption and denigrating all computer evidence, whether or not it deserves to be denigrated. That might lead, for example, to some defendants being acquitted when the evidence would require that they be convicted. We are trying to help the Government find a way through a problem that they recognise and assert exists. Will they please give us some help in return? This is both serious and urgent. Just saying that it is very difficult does not begin the process of putting it right.