Data (Use and Access) Bill [HL]

Debate between Lord Clement-Jones and Earl of Erroll

Report stage
Tuesday 28th January 2025 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I too support this. I well remember the passage of the Computer Misuse Act, and we were deeply unhappy about some of its provisions defining hacker tools et cetera, because they had nothing about intention. The Government simply said, “Yes, they will be committing an offence, but we will just ignore it if they are good people”. Leaving it to faceless people in some Civil Service department to decide who is good or bad, with nothing in the Bill, is not very wise. We were always deeply unhappy about it but had to go along with it because we had to have something; otherwise, we could not do anything about hacking tools being freely available. We ended up with a rather odd situation where there is no defence against being a good guy. This is a very sensible amendment to clean up an anomaly that has been sitting in our law for a long time and should probably have been cleaned up a long time ago.

[Lord Clement-Jones (LD)]

My Lords, I support Amendments 47 and 48, which I was delighted to see tabled by the noble Lords, Lord Holmes and Lord Arbuthnot. I have long argued for changes to the Computer Misuse Act. I pay tribute to the CyberUp campaign, which has been extremely persistent in advocating these changes.

The CMA was drafted some 35 years ago—an age ago in computer technology—when internet usage was much lower and cybersecurity practices much less developed. This makes the Act in its current form unfit for the modern digital landscape and inhibits security professionals from conducting legitimate research. I will not repeat the arguments made by the two noble Lords. I know that the Minister, because of his digital regulation review, is absolutely apprised of this issue, and if he were able to make a decision this evening, I think he would take them on board. I very much hope that he will express sympathy for the amendments, however he wishes to do so—whether by giving an undertaking to bring something back at Third Reading or by doing something in the Commons. Clearly, he knows what the problem is. This issue has been under consideration for a long time, in the bowels of the Home Office—what worse place is there to be?—so I very much hope that the Minister will extract the issue and deal with it as expeditiously as he can.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I can only support what the noble Baroness, Lady Kidron, had to say. This is essentially unfinished business from the Online Safety Act, which we laboured in the vineyard to deliver some time ago. These amendments aim to strengthen Clause 123 and try to make sure that this actually happens and that we do not get the outcomes of the kind that the noble Baroness has mentioned.

I, too, have read the letter from the Minister to the noble Lord, Lord Bethell. It is hedged about with a number of qualifications, so I very much hope that the Minister will cut through it and give us some very clear assurances, because I must say that I veer back and forth when I read the paragraphs. I say, “There’s a win”, and then the next paragraph kind of qualifies it, so perhaps the Minister will give us true clarity when he responds.

[The Earl of Erroll (CB)]

My Lords, I wanted to add something, having spent a lot of time on Part 3 of the Digital Economy Act, which after many assurances and a couple of years, the Executive decided not to implement, against the wishes of Parliament. It worries me when the Executive suddenly feel that they can do those sorts of things. I am afraid that leopards sometimes do not change their spots, and I would hate to see this happen again, so Amendment 51 immediately appeals. Parliament needs to assert its authority.

Data (Use and Access) Bill [HL]

Debate between Lord Clement-Jones and Earl of Erroll

Report stage
Tuesday 28th January 2025 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I spoke on this before, and I will repeat what I said previously. The only way out of this one is to have two fields against someone: one that we will call “sex” and another that we will call “gender”. I will use the terminology of the noble Lord, Lord Lucas, for this. “Sex” is what you are biologically and were born, and that you cannot change. There are instances where we need to use that field, particularly when it comes to delivering medicine to people—knowing how you treat them medically—and, possibly, in other things such as sports. There are one or two areas where we need to know what they are biologically.

Then we have another field which is called “gender”. In society, in many cases, we wish that people did not have to go around saying that they are not what they were born but what they want to be—but I do not have a problem with that. We could use that field where society decides that people can use it, such as on passports, other documents and identity cards—all sorts of things like that. It does not matter; I am not worried about what someone wants to call themselves or how they want to present themselves to society.

Researchers will have the “sex” field, and they can carry out medical research— they can find out about all the different things related to that—and, societally, we can use the other field for how people wish to project themselves in public. That way we can play around with what you are allowed to use in what scenarios; it allows you to do both. What we need is two fields; it will solve a lot of problems.

[Lord Clement-Jones (LD)]

My Lords, it is clear that Amendment 67 in the name of the noble Lord, Lord Lucas, is very much of a piece with the amendments that were debated and passed last week. On these Benches, our approach will be exactly the same. Indeed, we can rely on what the Minister said last week, when he gave a considerable assurance:

“I can be absolutely clear that we must have a single version of the truth on this. There needs to be a way to verify it consistently and there need to be rules. That is why the ongoing work is so important”.—[Official Report, 21/1/25; col. 1620.]


That is, the work of the Central Digital and Data Office. We are content to rely on his assurance.

Data (Use and Access) Bill [HL]

Debate between Lord Clement-Jones and Earl of Erroll

Committee stage
Wednesday 18th December 2024 Grand Committee

[The Earl of Erroll (CB)]

My Lords, I would like to just make one comment on this group. I entirely agree with everything that has been said and, in particular, with the amendments in the name of the noble Baroness, Lady Kidron, but the one that I want to single out—it is why I am bothering to stand up—is Amendment 197, which says that the Secretary of State “must” implement this measure.

I was heavily scarred back in 2017 by the Executive’s refusal to implement Part 3 of the Digital Economy Act in order to protect our children from pornography. Now, nearly eight years later, they are still not protected. It was never done properly, in my opinion, in the then Online Safety Bill either; it still has not been implemented. I think, therefore, that we need to have a “must” there. We have an Executive who are refusing to carry out the issue from Parliament in passing the legislation. We have a problem, but I think that we can amend it by putting “must” in the Bill. Then, we can hold the Executive to account.

[Lord Clement-Jones (LD)]

My Lords, the trouble with this House is that some have long memories. The noble Earl, Lord Erroll, reminded us all to look back, with real regret, at the Digital Economy Act and the failure to implement Part 3. I think that that was a misstep by the previous Government.

Like all of us, I warmly welcome the inclusion of data access provisions for researchers studying online safety matters in Clause 123 of the Bill. As we heard from the noble Baroness, Lady Kidron, and the noble Lord, Lord Knight, this was very much unfinished business from the Online Safety Act. However, I believe that, in order for the Bill to be effective and have the desired effect, the Government need to accept the amendments in the names of the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell. In terms of timeframe, the width of research possible, enforceability, contractual elements and location, they cover the bases extremely effectively.

The point was made extremely well by the noble Lords, Lord Bethell and Lord Russell, that we should not have to rely on brave whistleblowers such as Frances Haugen. We should be able to benefit from quality researchers, whether from academia or elsewhere, in order to carry out this important work.

My Amendment 198B is intended as a probing amendment about the definition of researchers under Clause 123, which has to be carefully drawn to allow for legitimate non-governmental organisations, academics and so on, but not so widely that it can be exploited by bad actors. For example, we do not want those who seek to identify potential exploits in a platform to use this by calling themselves “independent researchers” if they simply describe themselves as such. For instance, could Tommy Robinson seek to protect himself from liabilities in this way? After all, he called himself an “independent journalist” in another context when he clearly was not. I hope that when the Government come to draw up the regulations they will be mindful of the need to be very clear about what constitutes an independent or accredited researcher, or whatever phrase will be used in the context.

--- Later in debate ---

[The Earl of Erroll (CB)]

My Lords, if I may just interject, I have seen this happen not just in the Horizon scandal. Several years ago, the banks were saying that you could not possibly find out someone’s PIN and were therefore refusing to refund people who had had stuff stolen from them. It was not until the late Professor Ross Anderson, of the computer science department at Cambridge University, proved that they had been deliberately misidentifying to the courts which counter they should have been looking at, as to what was being read, and explained exactly how you could get the thing to default back to a different set of counters, that the banks eventually had to give way. But they went on lying to the courts for a long time. I am afraid that this is something that keeps happening again and again, and an amendment like this is essential for future justice for innocent people.

[Lord Clement-Jones (LD)]

My Lords, it is a pity that this debate is taking place so late. I thank the noble Lord, Lord Arbuthnot, for his kind remarks, but my work ethic feels under considerable pressure at this time of night.

All I will say is that this is a much better amendment than the one that the noble Baroness, Lady Kidron, put forward for the Data Protection and Digital Information Bill, and I very strongly support it. Not only is this horrifying in the context of the past Horizon cases, but I read a report about the Capture software, which is likely to have created shortfalls that led to sub-postmasters being prosecuted as well. This is an ongoing issue. The Criminal Cases Review Commission is reviewing five Post Office convictions in which the Capture IT system could be a factor, so we cannot say that this is about just Horizon, as there are the many other cases that the noble Baroness cited.

We need to change this common law presumption even more in the face of a world in which AI use, with all its flaws and hallucinations, is becoming ever present, and we need to do it urgently.

Data (Use and Access) Bill [HL]

Debate between Lord Clement-Jones and Earl of Erroll

Committee stage
Tuesday 3rd December 2024 Grand Committee

[The Earl of Erroll (CB)]

My Lords, I would like to say a few things about this. The first is that Amendment 5, in the name of the noble Lord, Lord Lucas, is very sensible; sometimes the GDPR has gone too far in trying to block what you can use things for. It was originally thought of when so much spamming was going on, with people gathering data from adverts and all sorts of other things and then misusing it for other purposes. People got fed up with the level of spam. This is not about that sort of thing; it is about having useful data that would help people in the future, and which they would not mind being used for other purposes. As long as it is done properly and seriously, and not for marketing, advertising and all those other things, and for something which is useful to people, I cannot see what the problem is. An overzealous use of GDPR, which has happened from time to time, has made it very difficult to use something perfectly sensible, which people would not mind having other people know about when it is being useful.

The next matter is sex, which is an interesting issue. The noble Lord is absolutely correct that biological or genetic sex is vital when applying medicines and various other things. You have to know that you are administering certain drugs properly. As we get more and more new drugs coming on, it will matter how a person’s body will react to them, which will depend on the genetic material, effectively. Therefore, it is essential to know what the biological sex is. The answer is that we need another category—probably “current gender”—alongside “sex at birth”. Someone can then decide to use “current gender” for certain purposes, including for such things as passports and driving licences, where people do not want to be asked questions—“Oh, do you mean you’re not?”—because they look completely different.

I remember meeting April Ashley in her restaurant. I would not, in my innocence—I was quite young—have guessed that she was not a woman, except that someone said that her hands were very big. It never worried us in those days. I am not worried about people using a different gender, but the basic underlying truth is essential. It comes into the issue of sport. If you have grown up and developed physically as a biological male, your bone structure and strength are likely to be different from that of a female. There are huge issues with that, and we need to know both; people can decide which to use at certain points. Having both would give you the flexibility to do that.

That also applies to Amendment 200, from the noble Lord, Lord Lucas, which is exactly the same concept. I thoroughly agree with those amendments and think we should push them forward.

[Lord Clement-Jones (LD)]

My Lords, I too am delighted that the noble Lord, Lord Lucas, came in to move his amendment. He is the expert in that whole area of education data; like the noble Lord, Lord Arbuthnot, I found what he said extremely persuasive.

I need to declare an interest as chair of the council of Queen Mary, University of London, in the context of Amendment 5 in the name of the noble Lord, Lord Lucas. I must say, if use were made of that data, it would benefit not only students but universities. I am sure that the Minister will take that seriously but, on the face of it, like the noble Earl, Lord Erroll, I cannot see any reason why this amendment should not be adopted.

I very much support Amendments 34 and 48 in the name of the noble Lord, Lord Arbuthnot. I too have read the briefing from Sex Matters. The noble Lord’s pursuit of accuracy for the records that will be part of the wallet, if you like, to be created for these digital verification services is a matter of considerable importance. In reading the Sex Matters briefing, I was quite surprised. I had not realised that it is possible to change your stated sex on your passport in the way that has taken place. The noble Lord referred to the more than 3,000 cases of this; for driving licences, there have been more than 15,000.

I agree with Sex Matters when it says that this could lead to a loss of trust in the system. However, I also agree with the noble Earl, Lord Erroll, that this is not an either/or. It could be both. It is perfectly feasible to have both on your passport, if you so choose. I do not see this as a great divide as long as the statement about sex is accurate because, for a great many reasons—not least in healthcare—it is of considerable importance that the statement about one’s sex is accurate.

I looked back at what the Minister said at Second Reading. I admit that I did not find it too clear but I hope that, even if she cannot accept these amendments, she will be able to give an assurance that, under this scheme—after all, it is pretty skeletal; we will come on to some amendments that try to flesh it out somewhat—the information on which it will be based is accurate. That must be a fundamental underlying principle. We should thank the noble Lord, Lord Arbuthnot, for tabling these two important amendments in that respect.