Trade Bill

Lord Clement-Jones Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 8th September 2020 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I add my own welcome and congratulations to the Minister and to the right reverend Prelate. I share all the concerns expressed by my noble friends and many noble Lords about the lack of proper scrutiny provisions in this Bill. Global digital trade is increasingly important in the post-Covid world. Its rules must be established, however, through bilateral and multilateral trade agreements.

Two areas where special scrutiny is required, particularly their place in the global digital and creative economy, are intellectual property protection and data transfer. It is crucial in future FTA’s negotiated by the UK that we do not concede or dilute our IP standards as part of trade negotiations. Indeed, they should be enhanced. These core protections include—it is quite a list—adherence to international treaties related to copyright, trademark, design and other intellectual property rights by our trading partners; maintenance of the UK’s “no fault” injunctive relief powers; robust enforcement measures for IP rights and infringement; strong design rights, particularly regarding unregistered designs; balanced copyright exceptions that uphold standards such as the Berne three-step test; no broadening of any liability shields for online platforms; retention of sovereignty over exhaustion rights and no shift to an international exhaustion regime; retention of artist resell rights; reciprocal rights of representation; reciprocal public performance rights for all music rights holders for their works, recordings, public performances and broadcasts; no mandatory transfer of source codes, algorithms or encryption keys as a condition of market access; and support for the development of AI through aligning text and data-mining rules with our own.

On the second major issue, data transfer, we need to ensure that data can flow across borders. It is essential for digital trade, particularly e-commerce, supply chains, data collection and data analytics through the Cloud. We have discussed the need for data adequacy in this House many times. In a significant ruling last month, in the case of Schrems II the European Court of Justice ruled that the privacy shield framework which allows data transfers between the US, the UK and the EU was invalid. Cloud services and data exporters from the EU will have to rely on standard contractual clauses. The UK will need to develop its own regime, similar to the EU’s adequacy framework, to ensure that personal data transfers to third countries outside the EU are protected, in line with the principles of the GDPR. We also need to ensure there is no enforced localisation of data or separate treatment for cross-border flows of financial data, as the Minister will understand only too well.

I look forward to the Minister’s response on these issues and how scrutiny will be guaranteed in the future.

Trade Bill

Lord Clement-Jones Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Thursday 1st October 2020 Grand Committee

Moved by

[Lord Clement-Jones]

15: Clause 2, page 2, line 23, at end insert—
“( ) Regulations under subsection (1) may make provision for the purpose of implementing an international trade agreement only if the appropriate authority has published a report reviewing the impact of any changes brought about by that international trade agreement on the existing law of intellectual property.”Member’s explanatory statement
This amendment seeks to explore issues that could be damaging to intellectual property law.

[Lord Clement-Jones (LD)]

My Lords, in the digital era in particular, intellectual property is the lifeblood of our creative and tech industries. As the Alliance for Intellectual Property points out, the UK’s IP framework has a number of features that protect UK consumers and reward UK creators and inventors. It is quite possible that our trading partners may wish to reduce or water down these protections. To ensure that the UK’s IP framework will continue to deliver significant economic benefits, it is paramount that the UK does not concede or dilute its current IP standards as part of trade negotiations; indeed, they should be enhanced.

Ensuring that we will retain or enhance these core protections involves asking ourselves the following questions for each trade agreement. For instance, on international treaties generally, will the UK encourage all our trade partners to promote both the ratification of, and adherence to, terms of international treaties for the recognition and enforcement of copyright, trademark design and other intellectual property rights? With regard to trademarks, will we resist the introduction of proof of use?

With regard to maintaining the UK’s injunctive relief powers, in the UK rights holders can apply to the civil courts for no-fault injunctive relief. Will the UK Government ensure the preservation of their no-fault injunctive relief regime? With regard to design rights, will our negotiators ensure that the current level of protection is not weakened and that such protection is available to all UK designers, particularly regarding unregistered designs? With regard to copyright, will we make sure that the copyright term of 70 years after death is preserved? New Zealand, by contrast, has only a 50-year term.

With regard to copyright exceptions, will future free trade agreements negotiated by the UK include balanced copyright exceptions and limitations, and uphold standards such as the Berne three-step test? Will we resist any adoption of US-style fair use?

With regard to the liability of online platforms, will the UK oppose any obligations under any trade agreement, particularly with the US, that would broaden liability shields for online intermediaries or digital platforms? Will the UK ensure that its negotiators work together with the US to simplify the DMCA notice and takedown provisions and embrace a sharing of best practice within the US and UK systems? The amendment in the name of the noble Baroness, Lady Kidron, which I strongly support, would give this wider and greater force regarding children.

With regard to site blocking, will the Government make sure that our site-blocking provisions for pirate sites are protected and included in free trade agreements? It seems they have not been in the Japan free trade agreement. With regard to sovereignty over exhaustion rights, will we ensure that exhaustion continues to be a sovereign issue for the UK, that it is not prescribed in any trade agreement and that there is no shift to an international exhaustion regime?

With regard to the artist resale right, the ARR ensures that UK visual artists receive a modest royalty when their work is resold on the secondary art market. Will we be maintaining the ARR and pressing for it to be included in all future trade agreements? With regard to reciprocal public performance rights, will the Government press the countries that we are negotiating with to provide for full payment for all music rights holders from the use of their works or from recordings, public performance and broadcast?

With regard to source codes, will we be preventing the mandatory transfer of source codes, algorithms or encryption keys as a condition of market access? With regard to data, will we be supporting the development of AI through aligning open government data and text and data mining rules with our own? Lastly, with regard to robust enforcement measures, the effective enforcement of intellectual property rights and infringement is crucial for ensuring the integrity of future trade agreements. Will we be ensuring that effective mechanisms for enforcement are in place so that rights holders have the ability to enforce IP laws within these jurisdictions?

These are all significant aspects of IP rights that have hitherto been relied on by our exporters and service providers. The Minister assured me at Second Reading:

“As he will know, our intellectual property regime is consistently rated as one of the best in the world. One of our priorities will be to ensure that future trade agreements do not negatively impact on standards in this area and that our regime will promote trade in intellectual property.”—[Official Report, 8/9/20; col. 747-78.]


But how will we know for sure in advance? Here is a classic example. The Chartered Institute of Patent Attorneys points out that in the UK’s negotiating objectives under “Intellectual property” on page 11, the Government commit to:

“Secure patents, trademarks, and designs provisions that: are consistent with the UK’s existing international obligations, including the European Patent Convention (EPC), to which the UK is party”.


In the corresponding US negotiating objectives, the US Government state that they will seek provisions governing intellectual property rights

“that reflect a standard of protection similar to that found in US law.”

As CIPA says:

“These UK and US objectives are not fully aligned, and a similar non-alignment may well arise in negotiations with other countries. This carries the serious risk of creating damaging uncertainty about the UK’s continuing membership of the EPC”.


Let us take two more examples. The July letter of the noble Lord, Lord Grimstone, about the New Zealand negotiations on intellectual property gave very little away. In his slightly fuller letter on the Japan agreement in September, he said:

“New protections for UK creative industries—British businesses can now be confident that their brands and innovations will be protected. We have gone beyond the EU on provisions that tackle online infringement of IP rights, such as film and music piracy.”


That is all well and good, but it is precious little information on such an important subject. We should know in advance through a specific report what the IP situation on each trade agreement will be so that we can be assured that the relevant protection and provisions are in place. That is what this amendment does.

I turn briefly to Amendment 16 on data flows to which the noble Baroness, Lady Neville-Rolfe, will be speaking and which I have signed. However, I do not want to steal any of her thunder. It is sufficient to say that this was not dealt with by the Minister at Second Reading. It supports the free flow of data and regulated access to data sets; ensuring that data can flow across borders is essential for digital trade, in particular for e-commerce consumption and supply chains and the use of data collection and data analytics through the cloud and otherwise.

In his September letter on the Japan agreement, the Minister said that cutting-edge digital and data provisions had been agreed. Again, how are we to judge? How are we to judge, too, the impact of any safe harbour or privacy shield provisions on our wider digital economy, especially in the light of Schrems II? Already, the Government’s consultation on a national data strategy with its promise to remove legal barriers to data use are problematic. We have heard from the noble Lord, Lord Agnew, that the Government Digital Service is carrying out a risk assessment. What impact will that have on our trade agreement negotiations?

All of this argues for a specific impact report prior to a trade agreement being signed in respect of data flows. I shall leave the Minister to the mercies of the noble Baroness, Lady Neville-Rolfe. I beg to move.

[Baroness Neville-Rolfe (Con)]

My Lords, I shall speak to Amendment 16 in my name, which requests a similar report on data. I thank the noble Lords, Lord Clement-Jones and Lord Stevenson of Balmacara, for their support. I in turn support Amendment 15 in their names on intellectual property. This is an issue on which we have worked together over many years, and of course the Minister, my noble friend Lord Younger, is something of an expert on IP, so I am hopeful of making progress and look forward to his response.

Our amendment on data is possibly even more important than that on IP, if that is possible. Data is like the electricity on which it depends: it allows everything to work and permits communication and analysis across the world. Data flow now underlies almost every aspect of our lives from financial services to the food supply chain, from defence to the music industry. The cloud is everywhere; it has made some people very rich, and has radically changed the market valuations of the world’s companies—here I refer to my own registered interests.

However, unlike IP where there are well-established international frameworks and bodies, in data there is inadequate international alignment of standards, and that has led to disputes between the EU and the US, as I know only too well as a former Minister with responsibility for data. The combination of the GDPR and the European Court ruling on Schrems caused huge problems that we solved with the EU-US Privacy Shield Framework. Led by my right honourable friend Matt Hancock and my noble friend Lord Ashton of Hyde, who is now of course our esteemed Chief Whip, we put the GDPR and associated changes on to the UK statute book so that the UK would be declared equivalent to the EU and data could continue to flow after EU exit. We still await clarity on that equivalence decision, which is important to many sectors and is a matter of much concern to the EU Scrutiny Committee on which I have the pleasure of sitting.

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

To answer the second question from the noble Baroness, we could well be. I think I have said, in other respects, when we do finally leave the EU after the transition period, because we will have left the EU it will be up to us to look at our standards and raise them if we think that is right. On the way forward on online harms, which is very close to the heart of the noble Baroness, I reassure her that there is a lot of cross-departmental work going on here. Although this is DCMS-led, I reassure her, on behalf of my noble friend Lord Grimstone, that the DIT and other departments are working together on the way forward, bearing in mind the White Paper.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his response. It was useful to be reminded by the noble Baroness, Lady Neville-Rolfe, of his antecedents. I remember many happy hours discussing copyright exceptions—I think it was from 2013 onwards —and I am sure it was one of the Minister’s favourite jobs at the time, with all the minutiae of intellectual property involved.

This has been a relatively short but, I hope, well-argued debate and I am grateful to those who supported not only my Amendment 15 but Amendments 16 and 34, which I strongly support as well. If we were looking for an order of priority, Amendment 34 in the name of the noble Baroness, Lady Kidron, is the absolute touchstone for this debate. She referred to putting an intentional red line in the negotiations, a very powerful phrase. The noble Lord, Lord Sheikh, said that children’s safety should not be traded away again, which really emphasises the importance of this. The point was made that we do not yet have all the legislation we need in this area, therefore any negotiations need to take account of future legislation. It is a really tricky one. The Minister has a wonderful bedside manner and used the word “reassure” on a number of occasions, but this is a really difficult and important area. Personally, I am not 100% reassured and if the noble Baroness wanted to bring her amendment back on Report, many of us would give her a great deal of support.

Turning to data, I agree with my noble friend Lord Fox: the one thing giving business sleepless nights is the whole issue of data adequacy and data flows. Post Schrems, that is a really difficult area. The Minister mentioned it and the noble Lord, Lord Agnew, answered a Written Question from me recently about the taskforce. It is urgent that we should have those guidelines in place. It is not adequate that people should simply have to rely on standard contractual clauses, especially for small business, as it will imply that they have to take a great deal of legal advice. I should say that since I no longer charge by the hour, I have no direct personal interest in that. However, it is a serious area and I hope it is being taken on board at speed.

On the IP front, there was a kind of multiple-choice questionnaire which I hope the Minister will use in future negotiations to tick or cross, as the case may be. The big problem is that this all demonstrates the feeling that the scrutiny process is inadequate, whether on continuity agreements or new agreements. The Minister says that the amendments would require another 11 reports, or whatever the tally would be, but that demonstrates a theme that has run through Second Reading and Committee so far: that the level of scrutiny we are being given over free-trade agreements is inadequate. Whether on things such as IP and data, which are crucial to business, or things which have a greater moral and societal foundation, as in the amendment of the noble Baroness, Lady Kidron, this is about the opportunity for scrutiny not being adequate at this point.

I will obviously withdraw the amendment, as we are in Grand Committee, but we are, in a sense, still back with the feeling that we have to go much further on scrutiny. If that involves 11 reports, so be it: these are important agreements for our future. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Trade Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 13th October 2020 Lords Chamber

For this strategy to be a success, it is crucial that the Government take back and retain control of their ability to make policies, regulate and provide medicines, medical devices and data processing services that safeguard and enhance the health of the nation. I beg to move.

[Lord Clement-Jones (LD) [V]]

My Lords, I wholeheartedly support the amendments tabled by the noble Lord, Lord Freyberg, to protect the healthcare data generated by the NHS as well as the safety and rights of the patients and citizens it exists to serve. I commend the way in which he introduced these amendments.

I have spoken on Second Reading and earlier in Committee about the need for data adequacy to ensure that personal data transfers to third countries outside the EU are protected in line with the principles of the GDPR. By the same token, we must protect NHS data, especially given the many transactions between technology, telecoms and pharma companies concerned with NHS data. Harnessing the value of healthcare data must be allied with ensuring that adequate protections are put in place in trade agreements if that value is not to be given or traded away.

Amendments 71 and 72 would introduce clauses to the Bill to help guarantee patient safety where the data-driven medicines and medical technologies feature in a trade agreement. These are products and services that are bound to grow in number and novelty in the future, as a direct result of both the ongoing Covid-19 health emergency and the accelerated use of new technologies. Given the number of healthcare-related amendments that have been discussed in Committee, it is very clear that there are fundamental concerns about protection of the NHS and the safety, efficacy and cost of the healthcare services that it delivers. There is the potential for the Government to lose control at precisely the moment they propose to take it back. That is why I have put my name to, and support, Amendments 71 and 72.

In July, in the case of Schrems II, the European Court of Justice ruled that the privacy shield framework, which allows data transfers between the US, the UK and the EU, is invalid. That has been compounded by the recent ECJ judgment this month in the case brought by Privacy International. In future, data exporters will have to rely on standard contractual clauses. Relying on standard contractual clauses in healthcare is simply not acceptable. Relevant to Amendment 72 in particular, there is a common assumption that, apart from any data adequacy issues, data stored in the UK is subject only to UK law. This is not the case: in March 2018, the US Government enacted the Clarifying Lawful Overseas Use of Data Act, or CLOUD Act, which allows law enforcement agencies to demand access to data stored on servers hosted by US-based tech firms, such as Amazon Web Services, Microsoft and Google, regardless of the data’s physical location and without issuing a request for mutual legal assistance. In practice, data might be resident in the UK, but it is still subject to US law.

Data cannot, therefore, simply be considered UK sovereign, and it is notable that Amazon Web Services gave a full response to more than 1,259 subpoenas, search warrants and court orders between January and June of this year. AWS’s own terms and conditions, which form part of its agreements with the UK Government, do not commit to keeping data in the region selected by government officials if AWS is required by law to move the data elsewhere in the world. Key and sensitive aspects of government data, such as security and access rules, usage policies and permissions, may also be transferred to the US without Amazon having to seek advance permission. Similarly, AWS has the right to request customer data and provide support services from anywhere in the world.

The Cabinet Office Government Digital Service team, which sets the Government’s digital policy, gives no guidance on where government data should be hosted. It simply states that all data categorised as official —the vast majority of government data, but including law enforcement, biometric and patient data—is suitable for the public cloud, and instructs its own staff simply to use AWS, with no guidance given on where the data must be hosted. The costs of AWS varies widely, depending on the region selected—and the UK is one of the most expensive regions. Regions are physically selected by the technical staff, rather than the procurement team or the security team. I should say that Amazon Web Services has a contract with NHSX, so that should be set in this context.

The free flow of data across borders, in principle, is of crucial importance, as the noble Lord, Lord Freyberg, said. However, I hope this example illustrates that control of policy and regulation as to what that data is and who it is shared with should be retained by the UK Government. In fact, that is not even enough existing control over government data. In particular, retention of control over health data, health service planning, and research and innovation is vital if the UK is to maintain its position as a leading life sciences economy and innovator. That is what these amendments would ensure.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, the noble Lord, Lord Freyberg, is to be congratulated on bringing these amendments to the forefront of our discussions and considerations, not least because, as he said, at the heart of them is an attempt to guarantee patient safety. That should be a paramount reason for giving them the active consideration we are.

As the noble Lord, Lord Freyberg, said, there is a significant value to NHS data for a number of reasons: expanding research, testing technology, better under- standing of diseases and, of course, improving treatments. The fiscal value of NHS data cannot be underlined strongly enough—imagine its value if an insurance company were to find, for instance, access to data concerning test, track and trace.

The value of all this data is estimated to be around £10 billion a year, but, as I have mentioned before, the Bill in its current form could allow UK data to be moved to servers in America and stop the NHS being able to analyse its own health data without paying royalties. We should not pretend that tech companies and US drug giants do not recognise the value of all this data; the noble Lord, Lord Clement-Jones, has given ample voice to that argument.

Last year, it was revealed that pharma companies Merck, Bristol Myers Squibb and Eli Lilly paid the Government for licences costing up to £330,000 each, in return for anonymised health data. The Government, as has been said earlier, have also given Amazon access to healthcare information, and DeepMind was given access to the data of 1.6 million patients at the Royal Free Hospital.

As we have touched on before in a previous group, Labour supports protecting the NHS, including its data and publicly funded health and care services, from any form of control from outside the UK in trade deals. I have already pulled out the inconsistencies in the Government’s position. They say the NHS is not on the table in trade talks, but they will not put protections on the face of the Bill. What have they got to hide? They do not want to improve scrutiny mechanisms for trade agreements, and I think we should be concerned and highly worried about that.

I am not the only one to recognise this: more than 400 doctors and health professionals have urged the Government to amend the Bill and ensure that health services are not on the table in future trade deals. They have also argued that free trade deals risk compromising the safe storage and processing of NHS data. Let us commit in statute to protecting our beloved NHS in trade deals and making sure we can use valuable data to provide the most cutting-edge care for patients here in the UK.

Trade Bill

Lord Clement-Jones Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 7th December 2020 Lords Chamber

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Sheehan. I support her Amendment 43 and share her concerns about big pharma, although I would go further and suggest that the profit motive should have no place in healthcare. Chiefly, I will offer three brief paragraphs in support of the cross-party Amendment 11, so ably introduced by the noble Baroness, Lady Thornton.

Looking at the excellent UNISON briefing on this amendment, I was taken back, as was the noble Lord, Lord Freyberg, to the Committee debate on the Medicines and Medical Devices Bill, in which we were discussing the place of artificial intelligence and big data in care and, of course, the dreaded algorithms. Clearly, this will be a fast-growing area of care, needing careful monitoring and democratic oversight, which is what this amendment seeks to achieve. What is decided by Parliament must not be undermined or overturned by free trade agreements. As the medicines Bill debate highlighted, these are big issues and there are huge issues around discrimination and potential misuse—accidental or otherwise—of the data, the algorithms and the whole approach.

I wish briefly to point noble Lords to the case of Henrietta Lacks in the US, including the treatment of her cells, the treatment of her data and the destruction of her privacy. It is an experience that surely should be studied as we face the loss of the protection of GDPR, as there remains uncertainty about the plans for WTO e-commerce rules and as there is grave concern about the way in which the UK-Japan agreement undermines UK domestic digital and AI regulation in healthcare services.

[Lord Clement-Jones (LD)]

My Lords, I rise to speak to the health data aspects of Amendment 11, which has been mentioned and was so well introduced by the noble Baroness, Lady Thornton, and the noble Lord, Lord Freyberg. I would add to the point of the noble Baroness, Lady Thornton: I join her in deploring the fact that we are debating this group of amendments, which are so important in this area, impacting on the NHS, at this late hour.

NHS data is a precious commodity, especially given the many transactions between technology, telecoms and pharma companies concerned with NHS data. In a recent report, EY estimated that the value of NHS data could be around £10 billion a year in the benefit delivered. The Department of Health and Social Care is preparing to publish its national health and care data strategy in the new year, in which it is expected to prioritise the

“safe, effective and ethical use of data-driven technologies, such as artificial intelligence, to deliver fairer health outcomes.”

Health professionals have strongly argued that free trade deals risk compromising the safe storage and processing of NHS data.

Through this amendment, the objective is to ensure that the NHS—not US big tech companies and drug giants—reaps the benefit of all this data. This is especially important given what the Ada Lovelace Institute called in its report—The Data Will See You Now—the “datafication” of health, which, it says, has profound consequences for who can access data about health, on how we practically and legally define health data and on our relationship with our own well-being and the healthcare system. Health information can now be inferred from non-health data, and data about health can be used for purposes beyond healthcare. So harnessing the value of healthcare data must be allied with ensuring that adequate protections are put in place in trade agreements if that value is not to be given or traded away.

There is also the need for data adequacy to ensure that personal data transfers to third countries outside the EU are protected in line with the principles of the GDPR. Watering down the UK’s data protection legislation will only reduce the chances of receiving an adequacy decision. There is also a concern that the proposed National Data Strategy will lead to the weakening of data protection legislation, just as it becomes ever more necessary for securing citizens’ rights. There should, however, be no conflict between good data governance, economic growth and better government through the effective use of data.

The section of the final impact assessment of the Comprehensive Economic Partnership Agreement—CEPA—between the UK and Japan on digital trade provisions says that the agreement contains:

“Commitments to uphold world-leading standards of protection for individuals’ personal data, in line with the UK’s Data Protection Act 2018, when data is being transferred across borders. This ensures that both consumer and business data can flow across borders in a safe and secure manner.”


The Department for International Trade, as mentioned by the noble Lord, Lord Freyberg, issued a document headed “UK-JP CEPA—a good deal for data protection”. However, the agreement has Article 8.3, which appears to provide a general exception for data flows, where this is

“necessary to protect public security or public morals or to maintain public order”

or

“to protect human, animal or plant life or health”.

The question has been raised of whether this will override data protections and what its impact will be on access to source codes and algorithms. There is also the question of the combined effect of Article 8.84, on the free flow of data, which provides that:

“A Party shall not prohibit or restrict the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person.”


Article 8.80, on personal information protection, says:

“Recognising that the Parties may take different legal approaches to protecting personal information, each Party should encourage the development of mechanisms to promote compatibility between these different regimes.”


It is all very well making reassuring noises, but what public legal analysis of the language in the relevant articles—and how advocacy will be permitted despite this—are the Government going to provide? Why, for instance, are these articles included, which the EU for its part will not sign up to? Unless the Government do this, there will be zero trust in future trade deals, especially regarding the US.

To date, there have been shortcomings in the sharing of data between various parts of the health service, care sector and Civil Service. The development of the Covid-19 app and the way the Government have procured contracts with the private sector for data management have not improved public trust in their approach to data use. There is also the danger that the UK will fall behind Europe and the rest of the world unless it takes back control of its data and begins to invest in its own cloud capabilities. Specifically, we need to ensure genuine sovereignty of NHS data and that it is monetised in a safe way, focused on benefiting the NHS and our citizens.

With a new national data strategy in the offing, the Government can maximise the opportunities afforded by the collection of data and position the UK as a leader in data capability and protection. As Future Care Capital says in its briefing on the Bill:

“Any proceeds from data collaborations that the Government agrees to, integral to any ‘replacement’ or ‘new’ trade deals, should be ring-fenced for reinvestment in the health and care system, pursuant with FCC’s long-standing call to establish a Sovereign Health Fund.”


This is an extremely attractive concept. Retaining control over our publicly generated data, particularly health data, for planning, research and innovation is vital if the UK is to maintain its position as a leading life science economy and innovator. That is why, as part of the new trade legislation being put in place, clear safeguards are needed to ensure that in trade deals, our publicly held data is safe from exploitation, except as determined by our own Government’s democratically taken decisions.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I refer to my entry in the register. This is a particularly important group of amendments, on health and the protection of data. I thank the noble Baronesses, Lady Thornton and Lady Sheehan, and the noble Lord, Lord Freyberg, for introducing them.

I will limit my remarks to the specific issue of data, which will be relevant to the recently reached super-agreement with Japan. It was discussed as recently as last week, when my noble friend Lord Grimstone spoke about the importance—I agree with him—of a greater exchange of data flows, particularly from that agreement. However, as the noble Lord, Lord Freyberg, said, it is extremely important, as set out in Amendment 11, to protect this data. I will give one example. The Government have been heavily dependent on vaccine trials for the three vaccines that are coming out. Would people readily submit to such trials and completing confidential surveys if there was any doubt that the data they submit would be treated confidentially?

If my noble friend Lord Younger of Leckie is not minded to support this amendment, will the Government table their own amendment to ensure the greater protection of data processing services?

Trade Bill

Lord Clement-Jones Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Wednesday 6th January 2021 Lords Chamber

[Baroness Kidron (CB) [V]]

My Lords, I shall speak to Amendment 23 in my name and those of the noble Lords, Lord Stevenson of Balmacara, Lord Clement-Jones and Lord Sheikh. This amendment represents the wishes of many colleagues from all sides of the house, and with that in mind I have informed the clerk that we intend to divide the House. I refer noble Lords to my interests in the register, particularly that as chair of the 5Rights Foundation, a charity that works to build the digital world that children deserve.

The amendment has been slightly revised since it was tabled in Committee, to reflect comments made then, but its purpose remains resolutely the same: to ensure that the online safety of children and other vulnerable users is not compromised as a consequence of clauses that appear in future free trade agreements.

Like many colleagues, I would rather that the UK Parliament had, as the US Congress does, a system of parliamentary scrutiny of all aspects of trade deals, but that is not the case. The amendment would offer significant protections for UK children online by protecting UK domestic law, widely regarded as the best in the world, as far as it affects children’s online safety. It would sit after Clause 2 and would therefore pertain to all future UK trade deals.

Proposed new subsection (2)(a) would capture existing UK legislation and treaties. This would allow the Government to cite existing treaties, such as the Convention on the Rights of the Child, which the UK has ratified but the US has not, or domestic legislation that already offers protections for children online. It would also capture any further advances made in UK law between now and the time that any trade agreement is settled.

Proposed new subsection (2)(b) specifically refers to data protections brought into law on 2 September last year in the form of the age-appropriate design code, which will have a profound impact on children’s online safety. That code was an initiative introduced and won in this House by a similar all-party grouping, with support from all sides of the House. It would also ensure that the Data Protection Act 2018 was protected in total, since many of the provisions of the children’s code build on the broader provisions of the DPA.

Proposed new subsection (2)(c) would give the Secretary of State the power to carve out from a trade deal any new or related legislation—for example, the upcoming online harms Bill, or any provisions put forward as the result of inquiries by the Competition and Markets Authority, the Law Commission, Ofcom, the ICO and so on. Digital regulation is a fast-moving area of policy, and the discretion given to the Secretary of State by subsection (2)(c) would ensure his or her ability to reflect the latest commitments on children’s online protection in FTAs.

The amendment would also define children as any person under 18. This is crucial, since the US domestic consumer law, COPPA, has created a de facto age of adulthood online of 13, in the face of all tradition and decades of evidence of child development. Using 13 as a false marker of adulthood has been thoughtlessly mirrored around the world. It fails to offer any protection to those aged 13 to 17, who require protections and freedoms in line with their evolving maturity but are clearly not yet adults.

I am very grateful to both the Minister and the Minister of State for Trade Policy, Greg Hands MP, for taking the time to speak to me since I first tabled this amendment. I am sympathetic to their overall position that the Bill should not tie the hands of UK trade negotiators, but in this case it is imperative that we do so, because some things are simply not for sale.

In the very few weeks since we debated this amendment in Committee, we have seen that the protections outlined in the amendment are entirely absent in the EU-UK deal, and in the same few weeks we have seen suggestions for the inclusion of provisions in the proposed mini-deal with the US that could completely undermine all the advances that we have made to protect children. That is even before we get to a full-blown US-UK FTA. In this context, Ministers can no longer cast doubt on the relevance of the amendment, nor can they suggest that this is an issue that can be dealt with at some indeterminate time in the future. We have set our sights on being a sovereign trading nation and are seeking to do that in short speed. We must make sure from the very beginning that we do not trade away the safety and security of our children.

In closing, I point to the Government’s recent online harms response and say to the Minister, whom I know to be personally committed to the safety of children, that it is simply impossible to balance the promises made to parents and children in the context of the online harms Bill without us also determinedly protecting the advances and commitments that we already have made. Amendment 23 would ensure that the UK domestic attitudes, legislation and guidance that protect children’s safety online could not be traded away. In a trade deal, no one side ever gets everything that it wants. We have to take kids off the table. I beg to move.

[Lord Clement-Jones (LD) [V]]

My Lords, it is a privilege to follow the noble Baroness, Lady Kidron, and her extremely cogent introduction. I have signed Amendment 23, which we on these Benches strongly support. I pay tribute to her consistent campaigning efforts in the area of online child safety and child protection. Very briefly, I will add why we need this amendment, through some recent media headlines which illustrate the issues involved.

First, on the extent of online harms, here are just a few headlines:

“Social media stalking on rise as harassers dodge identity checks”,


“QAnon is still spreading on Facebook, despite a ban”,


“Facebook’s algorithm a major threat to public health”


and

“Tech companies continue to provide online infrastructure for contentious Covid-19 websites even after flagging them as fake news, finds new Oxford study”.


Many of these online harms impact heavily on children and other vulnerable groups.

Secondly, here are two headlines on the power of big tech:

“Google told its scientists to ‘strike a positive tone’ in AI research documents”


and

“Facebook says it may quit Europe over ban on sharing data with US”.


There can be no doubting the sheer global lobbying power of the major platforms and their ability to influence governments.

Thirdly, on the opportunity for change and to retain our laws, the headlines included

“New ‘transformational’ code to protect children’s privacy online”,


which refers to the age-appropriate design code that has now been renamed “the children’s code”, and

“Britain can lead the world in reining in the tech giants if we get the details right”,


which refers to the proposals to introduce a new online duty of care.

“CMA advises government on new regulatory regime for tech giants”


refers to the new digital markets unit, and the CMA is referred to again in:

“Google told to stamp out fraudulent advertising”.


We have started down a crucial road of regulating the behaviour of the big tech companies and preventing harm, particularly to our children and the vulnerable. In any trade deal we want to preserve the protections that our citizens have, and all those that are coming into place, and we do not want to water them down in any way as a result of any trade negotiation.

The trade deal that looms largest is of course with the US, and there are indications that with the new Administration, which so many of us welcome, there will be new attitudes towards privacy rights, especially now that it seems that Congress will have Democrat majority control. I hope that they will vigorously pursue the antitrust cases that have been started, but we have no guarantee that they will go further, for instance in successfully eliminating the all-important safe harbour legal shield for internet companies, Section 230 of the Communications Decency Act. There is no guarantee that this will go, or that there will not be attempts to enforce this by the US in its future trade deals.

The Minister, the noble Lord, Lord Grimstone, for whom I have the greatest respect, will no doubt say that the Government will have red lines in their negotiations and that there is no way that they will countenance negotiating away the online protections which we currently have. But, as we have seen with the withdrawal agreement, Northern Ireland, the fishing industry and the UK-EU Trade and Co-operation Agreement, these can be washed away, or blurred, as data protection is in the agreement with Japan. So there is a great degree of uncertainty on both sides of the Atlantic. For that reason, without doubting any assurance that the Minister gives, this amendment is essential, and on these Benches we will strongly support it if the noble Baroness, Lady Kidron, takes it to a vote.