Data Protection Bill [HL]

Lord Freyberg Excerpts

Monday 14th May 2018 Lords Chamber

[Lord Mitchell (CB)]

My Lords, the words in the Bill and the words on the screens above us summarise my position. This is the Data Protection Bill, and my amendment is solely about protecting data—our data; our data of national significance; and in particular, our data owned by our National Health Service. Who do I wish to protect it from? From the predatory big tech companies, which see a huge financial opportunity in developing this NHS data and creating data algorithms; they can then sell those for billions of pounds, leaving us with precious little in return. The very same companies, by the way, pay minuscule corporation tax in our country and, indeed, it is the same in their own country. They are clever, immensely well funded, and very focused—they run rings around the NHS.

I feel that I have to prevent this happening. I seek to set in motion a process which will keep the value of this data for the benefit of our NHS so that it can use these proceeds either to plug its growing budget deficit or fund significant critical medical research—or, indeed, both. If I let my imagination go even further, I would like to see the setting up of a sovereign health fund into which these proceeds could be channelled and administered, in the same way as the Norwegians set up a sovereign wealth fund. What they have done with the proceeds of their North Sea oil we can now do with our data bonanza. As many have said throughout the Bill’s proceedings, data is the new oil—and we have struck a gusher.

If I may be permitted to extend the analogy even further—like oil in the ground, this data is crude; it needs to be refined. Huge investment will need to be made to create a data refinery which will be able to synthesise the millions of records that will produce the algorithms. It should be seen as a national co-production, perhaps with private and public partnership.

At Second Reading, I stated that it was my judgment that the market value of NHS longitudinal data could be worth billions of pounds. In all honesty, as I progressed, I fully expected someone to disagree with me and tell me that I was wrong. But no such person has come forward. All the experts seem to confirm my position. I made the point that the longitudinal data owned by the NHS was unique, with tens of millions of patient records going back to 1948 and even earlier. No other country has access to such a treasure trove. Even better, our population is diverse, with the records of people whose family members come from all corners of the globe. We have a perfect dataset.

The reason big tech companies are so interested in this data is that with the combination of sophisticated software, ultra-fast data processing, artificial intelligence and machine learning capabilities, they are able to produce algorithms which are tremendously powerful. These can be used to predict organ abnormalities to the extent that clinicians can save time and money, and ultimately people’s lives. And who can disagree with that? It is wonderful for all mankind.

By way of an example, DeepMind, which is based in London—it is a subsidiary of Alphabet, which owns Google—has been working with the Royal Free in anticipating acute kidney injury. Like knights on white chargers, DeepMind has financed the digitisation of millions of patients’ data and produced algorithms that are already making a major contribution to improving difficult-to-diagnose conditions. It has cost the Royal Free next to nothing and, unsurprisingly, its staff are over the moon. What they do not realise is that the algorithms produced by DeepMind have international value and will be monetised all over the world for the benefit of Google, not of our NHS.

DeepMind and companies like it are swarming all over the NHS. For my part, to put it bluntly, I want to stop them gathering the benefits of our data on the cheap. My new amendment would water down previous amendments that your Lordships agreed to on Report—an amendment that the Commons in its infinite wisdom decided to annul. Frankly, I am still at a loss to understand why a Conservative Government would not want to maximise this goldmine; I always thought they were the party of business.

I have, however, taken on board the points made by the Information Commissioner. She said the amendments went beyond her powers. I have reduced them to a minimum. In substitution I have inserted a requirement for the Secretary of State to require the National Audit Office to prepare a code of practice for data controllers, for guidance on how to obtain best value in relation to the commercial exploitation of personal data of national significance, and for the NAO to report annually to Parliament on the commercial explication of the very same data.

The Minister and his team have listened to what I have had to say and I am very grateful for his kindness and attentiveness. Our last meeting was very helpful, and I look forward to him confirming the points that were made. I beg to move.

[Lord Freyberg (CB)]

My Lords, I support Amendment 53A, moved by the noble Lord, Lord Mitchell. In doing so, I wish to make two specific points that follow on from his speech today. First, the amendment crucially recognises the importance of measuring what we as a nation are doing with data of significance before we take important, industrially strategic decisions on how we make the most of this vital national resource.

The noble Lord and others have made the analogy of data as the new oil. That analogy works particularly well for personal data as, like oil, it is potentially as toxic as it is valuable, and it must be carefully handled and not allowed to be released into the environment without due care. If we are to best manage, protect and distil it, we must first learn where and how it is being moved, used and commercialised. Can we as a nation easily answer the question that we are asking of Facebook or the former Cambridge Analytica: how much data are we commercialising at home and abroad, and to whom? If not, why not? Progressive and young, emerging nations are reviewing how they use their national data for national advantage, and we must make a concerted effort to do the same.

My second point is how the amendment therefore recognises that this measurement should be done centrally, not burdening already stretched government departments with developing their own approaches. While these departments must remain involved to provide domain insight into certain data types—for example, health and social care—the National Audit Office or other bodies should take charge of a cross-departmental process for measuring and tracking these flows of significant and valuable data. In this way we should be able to develop a consistent, coherent view of how we are handling our data reserves, which will give us the best possible evidence upon which to base our decisions on a secure approach to maximising their impact for our future national good. I therefore hope the Minister will be able to shed some light today on how this process is being thought through.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support Amendments 53A and 53B, tabled by the noble Lord, Lord Mitchell.

I must express my general frustration at the Bill. There is so much information, so much data of national significance that, it is clear, will be abused by the Government, whether or not they know that they are doing so. The Windrush scandal showed just how badly the Home Office gets things wrong, and the Bill’s provisions allow the sharing of people’s data which would further the “hostile environment” policy. I am very disappointed that the Government have not tabled amendments to curtail the broad powers in the Bill that will allow for such abuse.

There are so many cases of people who are victims of serious crime—of rape, violence and people trafficking—who are being reported by the police to the Home Office and then being arrested, detained and deported. At least 27 police forces have admitted that they do this. Ministers cannot possibly claim to be learning from those instances, just as they appear not to have learned from Windrush, while they continue to include such cruel and intrusive powers in the Bill. The fact that the Government can get things so horribly wrong is why the amendment should be included.

We have heard that data is more valuable than oil. It is more valuable than oil or gold. It is the boom industry of our times, and the temptation for government to allow its exploitation by the commercial sector—the predatory big tech organisations to which the noble Lord, Lord Mitchell, referred—will be overwhelming, especially in this age of austerity when money appears to be so short.

This is not just an issue of exploitation in a negative sense: there are lots of opportunities for government data to be used to empower communities. We can do things such as monitor air pollution and hold the Government to account by using this data. I am excited by those opportunities, but they need proper regulatory oversight to ensure that data is used for good. The control and processing of nationally important data must be properly overseen by the Information Commissioner and the National Audit Office. The Government recognised this in the Bill as drafted, and I do not understand why that has been removed—perhaps the Minister could explain.

I really hope that the Minister will support the amendments, but I rather suspect he will not.