Data (Use and Access) Bill [HL]

Lord Holmes of Richmond Excerpts

Report stage
Tuesday 28th January 2025 Lords Chamber

Moved by

[Lord Holmes of Richmond]

38: Clause 90, page 113, line 15, at end insert “in accordance only with the Commissioner’s duties under section 108 of the Deregulation Act 2015 (exercise of regulatory functions: economic growth).”
Member’s explanatory statement
This amendment ensures that the Commissioner’s duty to have regard to the desirability of promoting innovation is referable only to the duty imposed under section 108 of the Deregulation Act 2015. This amendment seeks to ensure that the Commissioner’s status as an independent supervisory authority for data protection is preserved given that such status is an essential component of any EU adequacy decision.

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to open the second day on Report on the Data (Use and Access) Bill. In doing so, I declare my technology interests as set out in the register, not least as an adviser to Socially Recruited, an AI business. In moving Amendment 38 in my name, I will not speak to any other amendments in this group.

Amendment 38 goes to the heart of the issue du jour: regulators have seldom been so much in the press and in the public eye. As the press would have it, they were hauled into No. 11 just a few days ago, but this speaks to what we want from our regulators across our economy and society. At their best, our regulators are the envy of the world. Just consider the FCA when we did the fintech regulatory sandbox: as a measure of success, it was replicated in well over 50 jurisdictions around the world.

We know how to do right-sized regulation and how to set up our regulators to succeed to do that most difficult of tasks—to balance innovation, economic growth, and consumers’ and citizens’ rights. That is what all regulators should be about. It is not straightforward; it is complex but entirely doable.

Amendment 38 simply proposes wording to assist the Information Commissioner’s Office. When it comes to the economic growth duty—“#innovation”—it simply refers back to Section 108 of the 2015 Act. I believe that bringing this clarity into the Bill will assist the regulator and enable all the conversations that are rightly going on right now, and all the plans that are being produced and reported on, such as those around AI, to be properly discussed and given proper context, with an Information Commissioner’s Office that is supported through clarity as to its responsibilities and obligations when it comes to economic growth. In simple terms, this would mean that these responsibilities are restricted and clearly set out according to Section 108 of the 2015 Act. It is critical that this should be the case if we are to have clarity around the commissioner’s independence as a supervisory authority on data protection, an absolutely essential condition for EU adequacy decisions.

I look forward to the Minister’s response. I hope that he likes my drafting. I hope that he will accept and incorporate my amendment into the Bill. I look forward to the debate. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I rise to support Amendment 38 in the name of the noble Lord, Lord Holmes. More than ever before, the commissioner, alongside other regulators, is being pressured to support the Government’s growth and innovation agenda. In Clause 90, the Bill places unprecedented obligations on the ICO to support innovation. The question, in respect of both the existing growth duty and Clause 90, is whether they are in any sense treated as overriding the ICO’s primary responsibilities in data protection and information rights. How does the ICO aim to balance those duties, ensuring that its regulatory actions support economic growth while maintaining necessary protections?

We need to be vigilant. As it is, there are criticisms regarding the way the Information Commissioner’s Office carries out its existing duties. Those criticisms can be broadly categorised into issues with enforcement, independence and the balancing of competing interests. The ICO has a poor record on enforcement; it has been reluctant to issue fines, particularly to public sector organisations. There has been an overreliance on reprimands, as I described in Committee. The ICO has been relying heavily on reprimands, rather than stronger enforcement actions. It has also been accused of being too slow with its investigations.

There are concerns about these new duties, which could pose threats to the ability of the Information Commissioner’s Office to effectively carry out its primary functions. For that reason, we support the amendment from the noble Lord, Lord Holmes.

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[The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)]

I thank the noble Lord, Lord Holmes, for his Amendment 38 relating to the ICO’s innovation duty. I agree with his comments about the quality of our regulators.

I reiterate the statements made throughout the Bill debates that the Government are committed to the ongoing independence of the ICO as a regulator and have designed the proposals in the Bill with retaining EU adequacy in mind. The commissioner’s status as an independent supervisory authority for data protection is assured. The Information Commissioner has discretion over the application of his new duties. It will be for him to set out and justify his activities in relation to those duties to Parliament.

To answer the specific point, as well as that raised by the noble Lord, Lord Clement-Jones, considerations of innovations will not come at the expense of the commissioner’s primary objective to secure an appropriate level of protection for personal data. I hope that reassures the noble Lord.

[Lord Holmes of Richmond (Con)]

I thank all noble Lords who have taken part in this short debate and thank the Minister for his response. I believe my wording would assist the ICO in its mission, but I have listened to what the Minister has said and, for the time being, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

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[Baroness Cavendish of Little Venice (CB)]

My Lords, I congratulate my noble friend on a barnstorming speech.

Many of the points that I wanted to make have already been made by others, so I will be brief. I declare my interest as a rights holder. I am slightly worried that this is beginning to sound like special pleading, and I hope that is not the effect it has. I am also the daughter of two writers, and I recognise that £1.76, because sometimes that was it. That £1.76, as the noble Lord has just said, is a contract. There are many artists, musicians and writers in this country who get money for their books in libraries or tiny amounts of royalties, and those royalties are keeping them alive. They enable them to create original work and earn their living.

I believe that generative AI will be transformational and largely for the good. However, it is perfectly possible to distinguish between meaningful progress that advances humanity—we heard in an earlier debate about AI tracking naval ships, and brilliant advances are being made in medicine—and plain theft of intellectual property. That theft has been going on now for several years, and the people who are being stolen from are not even aware that their work has been stolen.

For that reason, I do not actually believe it is necessary to seek a balance. This is not about balance; it is about implementing and upholding the rule of law. The proposed rights reservation from the Government would reverse the fundamental principle of UK copyright law, which, as others have said, was established in 1710—I think it was 1710, not 1709, but we may differ. My mother wrote the Handbook of Copyright in British Publishing Practice in 1974, so I have some visceral memory of all this. The Government are proposing to reverse the fundamental protections that have made us a gold standard in the world. The amendments propose to make UK copyright law enforceable in an age of generative AI—to respond and expand our laws, in what is in my view an extremely proportionate way, to recognise the rights of creators.

We have all learned something in this debate that is astonishing to me: apparently the Government have not conducted an economic impact assessment of their proposals on one of our most successful industries. I find that completely shocking. It suggests a lack of seriousness on the part of this Government and those who are making these proposals, which I hope the Minister will address later.

If artists, musicians and creators cannot earn a living, there will be no original content and no more content for AI to build on. That is surely in itself an economic argument that somewhat undermines the vague idea that innovation cannot happen without the wholesale abolition of our proud tradition of copyright. Chris Bryant said last night that something must change and that we cannot do nothing. I agree, but what we must do is double down.

[Lord Holmes of Richmond (Con)]

My Lords, I support these amendments and the noble Baroness, Lady Kidron. Not to do so would be, to quote some of her earlier work, beyond the edge of reason.

I support the noble Baroness because I support creatives. They are the individuals who bring such sweet sound where otherwise there would be silence, who fill a blank page with words that can move our hearts, our souls and our minds, and can change the course of history. I support the amendments because I support the rule of law. IP and copyright are well established over centuries.

This is not complex or controversial. There is an extraordinary tedium to the whole question of TDM. Ultimately, I could do this in three words when addressing big tech: “It’s not yours. Take your audacious hands off other people’s work”. And that is from someone who is pro-innovation, pro-AI and pro-technology—but in a way where there is a negotiation and agreed conclusion as to how artists, rights holders and creatives want to engage with these technologies.

We have already heard many times, rightly, that there has been no economic impact assessment. I ask the Minister for his views on that. While on that subject, I ask him, out of genuine interest, what is the genesis of the £400 billion figure in the AI opportunities plan? Where does it come from, what is it based on and how does it sit against the impact that not acting will have on our creative sector?

I support these amendments, and I urge everyone in your Lordships’ House to do so. To misquote the late, great Dennis Potter, “Vote, vote, vote for Beeban Kidron”.

[Baroness Butler-Sloss (CB)]

My Lords, I have come specifically to the debate on this part of the Bill especially to support these amendments. I regret that I have not played a part in any other part of the Bill, but this subject is so important that I have come—and I shall speak briefly because I support what everyone else has said.

I am coming from a totally different angle. As a judge, I tried these cases, and they worked perfectly well. We never had a problem in coming to a decision on copyright or intellectual property. I did not do very many, but I sat with judges who did it all the time. I am absolutely astonished that the Government are setting aside long-established law; whether it goes back to 1709 or 1710—whether it is the noble Baroness, Lady Cavendish, or the noble Earl, Lord Devon, who is right—I do not think matters. The point is that it goes back a long way, and it works. Why are the Government setting it aside instead of strengthening it, for all the reasons that have been given so far?

I wonder whether, in the absence of an impact assessment, the Government have put their mind to what is going to happen on the ground, and not just with regard to the £1.76. Is the £128 billion going to exist to go into the coffers of the Treasury? I suspect that, whatever they think they are going to make, no one from the government Benches has thought about what they are going to lose. Basically, I am asking the Government to sit back, think again and reflect with the greatest possible care on the brilliant speech of noble Baroness, Lady Kidron, and the unanimity across this House. Having been in this place for many years, I cannot remember another occasion where I have not heard a single voice supporting the Government. Are the Government going to listen to that?

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Moved by

[Lord Holmes of Richmond]

47: After Clause 107, insert the following new Clause—
“Data use: defences to charges under the Computer Misuse Act 1990(1) The Computer Misuse Act 1990 is amended as follows.(2) In section 1, after subsection (3) insert— “(4) It is a defence to a charge under subsection (1) to prove that—(a) the person’s actions were necessary for the detection or prevention of crime, or(b) the person’s actions were justified as being in the public interest.”(3) In section 3, after subsection (6) insert—“(7) It is a defence to a charge under subsection (1) in relation to an act carried out for the intention in subsection (2)(b) or (c) to prove that—(a) the person’s actions were necessary for the detection or prevention of crime, or(b) the person’s actions were justified as being in the public interest.””Member’s explanatory statement
This amendment updates the definition of “unauthorised access” in the Computer Misuse Act 1990 to provide clearer legal protections for legitimate cybersecurity activities.

[Lord Holmes of Richmond (Con)]

My Lords, in moving Amendment 47, I shall speak also to Amendment 48.

Here we are again: the Computer Misuse Act 1990 is another year older. It was put into statute at a time when technology looked nothing like it did 10 or 20 years ago, never mind today. I will give some brief facts. We have a fantastic cyber sector in our country, which adds so much to our economy and safety. The Computer Misuse Act constrains the sector from keeping us as safe as it might and constrains businesses in terms of their growth and what they could be adding today to our economy in terms of—yes—growth.

There is no reason for us to continue with the Computer Misuse Act when we have the solution in our hands, set out, I suggest, in Amendments 47 and 48. Our cyber- security professionals, often working way out of sight, for obvious reasons, do such important work and professionally, diligently, keep us safe and keep our country, assets and economy secure.

When the Minister responds, will he say, even sotto voce, that a Division on these amendments might help him in his discussions within the department to get some movement on this issue? We heard in previous debates how doing this would be premature and how the time was not now. Well, for a statute that came into being at the beginning of the 1990s, I suggest that it is high time that we made these amendments for individuals, for businesses, for our economy and for our society, in an extraordinarily uncertain world and at a time when I imagine that every Minister should be looking to every potential source of economic growth. I look forward to the debate and to the Minister’s response. I beg to move.

[Lord Arbuthnot of Edrom (Con)]

My Lords, in Committee, the noble Baroness the Minister said there was no consensus on the best way forward to amend the law to provide protection for ethical hackers trying to work against cybercrime. All I ask is that noble Lords should read the amendment, which says:

“It is a defence to a charge … to prove that … the person’s actions were necessary for the detection or prevention of crime or … the person’s actions were justified as being in the public interest”.


What on earth could be wrong with that? I support my noble friend Lord Holmes of Richmond.

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[Lord Vallance of Balham (Lab)]

I am grateful to the noble Lord, Lord Holmes, for raising this topic through Amendments 47 and 48. I am very aware of this issue and understand the strength of feeling about reforming the Computer Misuse Act, as we have heard from the noble Lord, Lord Arbuthnot, and the noble Earl, Lord Erroll.

As the noble Lord, Lord Clement-Jones, rightly pointed out, when I was the Government Chief Scientific Adviser I conducted a review making recommendations on pro-innovation regulation of technologies and I made recommendations on the issues these amendments raise. These recommendations were accepted by the previous Government.

The Government are actively taking forward these recommendations as part of the Act’s ongoing review. These issues are, of course, complex and require careful consideration. The introduction of these specific amendments could unintentionally pose more risk to the UK’s cybersecurity, not least by inadvertently creating a loophole for cybercriminals to exploit to defend themselves against a prosecution.

Our engagement with stakeholders has revealed differing views, even among industry. While some industry partners highlight the noble Lord’s view that the Computer Misuse Act may prevent legitimate public interest activity, others have concerns about the unintended consequences. Law enforcement has considerable concerns that allowing unauthorised access to systems under the pretext of identifying vulnerabilities could be exploited by cybercriminals. Without robust safeguards and oversight, this amendment could significantly hinder investigations and place a burden on law enforcement partners to establish whether a person’s actions were in the public interest.

Further work is required to consider the safeguards that would need to accompany any introduction of statutory defences. The Government will continue to work with the cybersecurity industry, the National Cyber Security Centre and law enforcement agencies on this issue. The Home Office will provide an update in due course, once the proposals have been finalised—or, in the words of the noble Lord, Lord Clement-Jones, they will pop out of the bowels of the Home Office in due course. With these reassurances in mind, I hope the noble Lord will feel able to withdraw his amendments.

[Lord Holmes of Richmond (Con)]

My Lords, I thank everybody who has taken part in this short debate. I was really hoping that we would not hear the phrase “the bowels of the Home Office” twice, but we did—now we have heard it three times. Perhaps it could be the title of somebody’s autobiography. I do not know whose, but I claim the IP rights even though the noble Lord, Lord Clement-Jones, said it first.

I am grateful for the Minister’s response. It would probably have been better to have some sense of timeline; much of what he said was very much what we heard in Committee. We are all amenable to having a course of action, but it needs more objectives attached to it as to when we are likely to see some consequences, action and changes. As every day goes by, as the Minister is well aware, risks go unchecked that could be checked, people are less safe who could be made safe and economic growth, the Government’s priority, is prevented which could be enabled.

For now, I will withdraw my amendment, but I am minded to see what is possible between now and Third Reading, because the time is now; otherwise, “in due course” will be even longer than the official statement “later in the summer”. I beg leave to withdraw.

Amendment 47 withdrawn.