Data Protection and Digital Information Bill

Lord Kamall Excerpts

Committee stage
Wednesday 27th March 2024 Grand Committee

[Baroness Harding of Winscombe (Con)]

My Lords, as is so often the case on these issues, it is daunting to follow the noble Baroness as she has addressed the issues so comprehensively. I speak in support of Amendment 57, to which I have added my name, and register my support for my noble friend Lord Holmes’s Amendment 59A, but I will begin by talking about the Clause 14 stand part notice.

Unfortunately, I was not able to stay for the end of our previous Committee session so I missed the last group on automated decision-making; I apologise if I cover ground that the Committee has already covered. It is important to start by saying clearly that I am in favour of automated decision-making and the benefits that it will bring to society in the round. I see from all the nodding heads that we are all in the same place—interestingly, my Whip is shaking his head. We are trying to make sure that automated decision-making is a force for good and to recognise that anything involving human beings—even automated decision-making does, because human beings create it—has the potential for harm as well. Creating the right guard-rails is really important.

Like the noble Baroness, Lady Kidron, until I understood the Bill a bit better, I mistakenly thought that the Government’s position was not to regulate AI. But that is exactly what we are doing in the Bill, in the sense that we are loosening regulation and the ability to make use of automated decision-making. While that may be the right answer, I do not think we have thought about it in enough depth or scrutinised it in enough detail. There are so few of us here; I do not think we quite realise the scale of the impact of this Bill and this clause.

I too feel that the clause should be removed from the Bill—not because it might not ultimately be the right answer but because this is something that society needs to debate fully and comprehensively, rather than it sneaking into a Bill that not enough people, either in this House or the other place, have really scrutinised.

I assume I am going to lose that argument, so I will briefly talk about Amendment 57. Even if the Government remain firm that there is “nothing to see here” in Clause 14, we know that automated decision-making can do irreparable harm to children. Any of us who has worked on child internet safety—most of us have worked on it for at least a decade—regret that we failed to get in greater protections earlier. We know of the harm done to children because there have not been the right guard-rails in the digital world. We must have debated together for hours and hours why the harms in the algorithms of social media were not expressly set out in the Online Safety Act. This is the same debate.

It is really clear to me that it should not be possible to amend the use of automated decision-making to in any way reduce protections for children. Those protections have been hard fought and ensure a higher bar for children’s data. This is a classic example of where the Bill reduces that, unless we are absolutely explicit. If we are unable to persuade the Government to remove Clause 14, it is essential that the Bill is explicit that the Secretary of State does not have the power to reduce data protection for children.

[Lord Kamall (Con)]

My Lords, I speak in favour of the clause stand part notice in my name and that of the noble Lord, Lord Clement-Jones.

[Lord Harlech (Con)]

The noble Lord missed the start of the debate.

[Lord Kamall (Con)]

I apologise and thank the noble Lord for his collegiate approach.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have contributed to this debate. We have had a major common theme, which is that any powers exercised by the Secretary of State in Clause 14 should be to enhance, rather than diminish, the protections for a data subject affected by automated decision-making. We have heard some stark and painful examples of the way in which this can go wrong if it is not properly regulated. As noble Lords have said, this seems to be regulation on automated decision-making by the backdoor, but with none of the protections and promises that have been made on this subject.

Our Amendment 59 goes back to our earlier debate about rights at work when automated decision-making is solely or partly in operation. It provides an essential underpinning of the Secretary of State’s powers. The Minister has argued that ADM is a new development and that it would be wrong to be too explicit about the rules that should apply as it becomes more commonplace, but our amendment cuts through those concerns by putting key principles in the Bill. They are timeless principles that should apply regardless of advances in the adoption of these new technologies. They address the many concerns raised by workers and their representatives, about how they might be disfranchised or exploited by machines, and put human contact at the heart of any new processes being developed. I hope that the Minister sees the sense of this amendment, which will provide considerable reassurance for the many people who fear the impact of ADM in their working lives.

I draw attention to my Amendments 58 and 73, which implement the recommendations of the Delegated Powers and Regulatory Reform Committee. In the Bill, the new Articles 22A to 22D enable the Secretary of State to make further provisions about safeguards when automated decision-making is in place. The current wording of new Article 22D makes it clear that regulations can be amended

“by adding or varying safeguards”.

The Delegated Powers Committee quotes the department saying that

“it does not include a power to remove safeguards provided in new Article 22C and therefore cannot be exercised to weaken the protections”

afforded to data subjects. The committee is not convinced that the department is right about this, and we agree with its analysis. Surely “vary” means that the safeguards can move in either direction—to improve or reduce protection.

The committee also flags up concerns that the Bill’s amendments to Sections 49 and 50 of the Data Protection Act make specific provision about the use of automated decision-making in the context of law enforcement processing. In this new clause, there is an equivalent wording, which is that the regulations may add or vary safeguards. Again, we agree with its concerns about the application of these powers to the Secretary of State. It is not enough to say that these powers are subject to the affirmative procedure because, as we know and have discussed, the limits on effective scrutiny of secondary legislation are manifest.

We have therefore tabled Amendments 58 and 73, which make it much clearer that the safeguards cannot be reduced by the Secretary of State. The noble Lord, Lord Clement-Jones, has a number of amendments with a similar intent, which is to ensure that the Secretary of State can add new safeguards but not remove them. I hope the Minister is able to commit to taking on board the recommendations of the Delegated Powers Committee in this respect.

The noble Baroness, Lady Kidron, once again made the powerful point that the Secretary of State’s powers to amend the Data Protection Act should not be used to reduce the hard-won standards and protections for children’s data. As she says, safeguards do not constitute a right, and having regard to the issues is a poor substitute for putting those rights back into the Bill. So I hope the Minister is able to provide some reassurance that the Bill will be amended to put these hard-won rights back into the Bill, where they belong.

I am sorry that the noble Lord, Lord Holmes, is not here. His amendment raises an important point about the need to build in the views of the Information Commissioner, which is a running theme throughout the Bill. He makes the point that we need to ensure, in addition, that a proper consultation of a range of stakeholders goes into the Secretary of State’s deliberations on safeguards. We agree that full consultation should be the hallmark of the powers that the Secretary of State is seeking, and I hope the Minister can commit to taking those amendments on board.

I echo the specific concerns of the noble Lord, Lord Clement-Jones, about the impact assessment and the supposed savings from changing the rules on subject access requests. This is not specifically an issue for today’s debate but, since it has been raised, I would like to know whether he is right that the savings are estimated to be 50% and not 1%, which the Minister suggested when we last debated this. I hope the Minister can clarify this discrepancy on the record, and I look forward to his response.

--- Later in debate ---

It is worth stressing that this amendment does not say how the Government should do this; it simply sets out the principle that the Government should do it. It is not open to the argument that the amendment should be drafted differently or approached in another way; it simply says that we should free the postal address file. I very much hope to hear positive words and a positive direction from the Minister on Amendment 252.

[Lord Kamall (Con)]

My Lords, I apologise for not being here on Monday, when I wanted to speak about automated decision-making. I was not sure which group to speak on today; I am thankful that my noble friend Lord Harlech intervened to ensure that I spoke on this group and made my choice much easier.

I want to speak on Amendments 74 to 77 because transparency is essential. However, one of the challenges about transparency is to ensure you understand what you are reading. I will give noble Lords a quick example: when I was in the Department of Health and Social Care, we had a scheme called the voluntary pricing mechanism for medicines. Companies would ask whether that could be changed and there could be a different relationship because they felt that they were not getting enough value from it. I said to the responsible person in the department, “I did engineering and maths, so can you send me a copy of algorithm?” He sent it to me, and it was 100 pages long. I said, “Does anyone understand this algorithm?”, and he said, “Oh yes, the analysts do”. I was about to get a meeting, but then I was moved to another department. That shows that even if we ask for transparency, we have to make sure that we understand what we are being given. As the noble Lord, Lord Clement-Jones, has worded this, we have to make sure that we understand the functionality and what it does at a high enough level.

My noble friend Lady Harding often illustrates her points well with short stories. I am going to do that briefly with two very short stories. I promise to keep well within the time limit.

A few years ago, I was on my way to a fly to Strasbourg because I was a Member of the European Parliament. My train got stuck, and I missed my flight. My staff booked me a new ticket and sent me the boarding pass. I got to the airport, which was fantastic, and got through the gate and was waiting for my flight in a waiting area. They called to start boarding and, when I went to go on, they scanned my pass again and I was denied boarding. I asked why I was denied, having been let into the gate area in the first place, but no one could explain why. To cut a long story short, over two hours, four or five people from that company gaslighted me. Eventually, when I got back to the check-in desk, which the technology was supposed to avoid in the first place, it was explained that they had sent me an email the day before. In fact, they had not sent me an email the day before, which they admitted the day after, but no one ever explained why I was not allowed on that flight.

Imagine that in the public sector. I can accept it, although it was awful behaviour by that company, but imagine that happening for a critical operation that had been automated to cut down on paperwork. Imagine turning up for your operation when you are supposed to scan your barcode to be let into the operating theatre. What happens if there is no accountability or transparency in that case? This is why the amendments tabled by the noble Lord, Lord Clement-Jones, are essential.

Here is another quick story. A few years ago, someone asked me whether I was going to apply for one of these new fintech banks. I submitted the application and the bank said that it would get back to me within 48 hours. It did not. Two weeks later, I got a message on the app saying that I had been rejected, that I would not be given an account and that “by law, we do not have to explain why”.

Can you imagine that same technology being used in the public sector, with a WYSIWYG on the fantastic NHS app that we have now? Imagine booking an appointment then suddenly getting a message back saying, “Your appointment has been denied but we do not have to explain why”. These Amendments 74 to 78 must be given due consideration by the Government because it is absolutely essential that citizens have full transparency on decisions made through automated decision-making. We should not allow the sort of technology that was used by easyJet and Monzo in this case to permeate the public sector. We need more transparency—it is absolutely essential—which is why I support the amendments in the name of the noble Lord, Lord Clement-Jones.

[Baroness Harding of Winscombe (Con)]

My Lords, I associate myself with the comments that my noble friend Lord Kamall just made. I have nothing to add on those amendments, as he eloquently set out why they are so important.

In the spirit of transparency, my intervention enables me to point out, were there any doubt, who I am as opposed to the noble Baroness, Lady Bennett, who was not here earlier but who I was mistaken for. Obviously, we are not graced with the presence of my noble friend Lord Maude, but I am sure that we all know what he looks like as well.

I will speak to two amendments. The first is Amendment 144, to which I have added my name. As usual, the noble Baroness, Lady Kidron, has said almost everything that can be said on this but I want to amplify two things. I have yet to meet a politician who does not get excited about the two-letter acronym that is AI. The favoured statement is that it is as big a change in the world as the discovery of electricity or the invention of the wheel. If it is that big—pretty much everyone in the world who has looked at it probably thinks it is—we need properly to think about the pluses and the minuses of the applications of AI for children.

The noble Baroness, Lady Kidron, set out really clearly why children are different. I do not want to repeat that, but children are different and need different protections; this has been established in the physical world for a very long time. With this new technology that is so much bigger than the advent of electricity and the creation of the first automated factories, it is self-evident that we need to set out how to protect children in that world. The question then is: do we need a separate code of practice on children and AI? Or, as the noble Baroness set out, is this an opportunity for my noble friend the Minister to confirm that we should write into this Bill, with clarity, an updated age-appropriate design code that recognises the existence of AI and all that it could bring? I am indifferent on those two options but I feel strongly that, as we have now said on multiple groups, we cannot just rely on the wording in a previous Act, which this Bill aims to update, without recognising that, at the same time, we need to update what an age-appropriate design code looks like in the age of AI.

The second amendment that I speak to is Amendment 252, on the open address file. I will not bore noble Lords with my endless stories about the use of the address file during Covid, but I lived through and experienced the challenges of this. I highlight an important phrase in the amendment. Proposed new subsection (1) says:

“The Secretary of State must regularly publish a list of UK addresses as open data to an approved data standard”.


One reason why it is a problem for this address data to be held by an independent private company is that the quality of the data is not good enough. That is a real problem if you are trying to deliver a national service, whether in the public sector or the private sector. If the data quality is not good enough, it leaves us substantially poorer as a country. This is a fundamental asset for the country and a fundamental building block of our geolocation data, as the noble Lord, Lord Clement-Jones, set out. Anybody who has tried to build a service that delivers things to human beings in the physical world knows that errors in the database can cause huge problems. It might not feel like a huge problem if it concerns your latest Amazon delivery but, if it concerns the urgent dispatch of an ambulance, it is life and death. Maintaining the accuracy of the data and holding it close as a national asset is therefore hugely important, which is why I lend my support to this amendment.