Data (Use and Access) Bill [HL]

Lord Lucas Excerpts

2nd reading
Tuesday 19th November 2024 Lords Chamber

[Lord Lucas (Con)]

My Lords, I declare an interest in that, through the Good Schools Guide, I am an extensive user of government schools data. With another hat on, I share my noble friend Lord Markham’s worries about how this affects little organisations with a bit of membership data.

I very much look forward to Committee, when we will get into the Bill’s substance. I supported almost everything that the noble Baroness, Lady Kidron, said and look forward to joining in on that. I also very much support what my noble friend Lord Holmes said, in particular about trust, so he will be glad to know that I have in advance consulted Copilot as to the changes they would like to see in the Bill. If I may summarise what they said—noble Lords will note that I have taken the trouble to ascertain their choice of pronouns—they would like to see enhanced privacy safeguards, better transparency and accountability, regular public consultation and reviews of the Act, impact assessments before implementation, support for smaller entities and clearer definition of key terms. I am delighted by how much I find myself in agreement with our future overlords.

To add to what the noble Earl, Lord Erroll, said about digital identity being better, there was a widespread demonstration of that during Covid, when right-to-work checks went digital. Fraud went down as a result.

On the substantial changes that I would like to see, like my noble friend Lord Arbuthnot of Edrom, I would like a clear focus on getting definitions of data right. It is really important that we have stability and precision in data. What has been going on in sex and gender in particular is ridiculous. Like many other noble Lords, I also want a focus on the use of artificial intelligence in hiring. It is so easy now to get AI support for making a job application that the number of job applications has risen hugely. In response to this, of course, AI has been used in assessing job applications, because you really cannot plough through 500 in order to make a shortlist. Like the Better Hiring Institute, which I am associated with, I would really like to see AI used to give people the reasons why they have not been successful. Give everybody a reply and engage everybody in this process, rather than just ignoring them—and I apologise to the many people who send me emails that I do not reply to, but perhaps I will do better with a bit of AI.

This is a very seasonal Christmas tree of a Bill and I shall not be shy of hanging baubles on it when we come to Committee, in the way that many other noble Lords have done. My choices include trying to make it possible for the Student Loans Company to be more adventurous in the use of its data. It ought to be a really good way of finding out how successful our university system is. It is in touch with university graduates in a way that no other organisation is, but it feels constrained in the sorts of questions it might ask. I would really like Action Fraud to record all attempts at fraud, not just the successful frauds. We need a better picture of what is going on there. I would like to see another attempt to persuade the DfE that schools admissions data should be centrally gathered. At the moment it is really hard for parents to use, which means there is a huge advantage for parents who are savvy and have the time. That is not the way it should be. Everybody should have good, intelligent access to understanding what schools are open to them. There will be plenty of opportunities in Committee, which, as I say, I look forward to.

In the context of data and House of Lords reform, when I did a snap census at 5.47 pm, the Cross-Bench Peers were in the majority in the House. That suggests that, in providing Peers who have a real interest in the core business of this House—revising legislation—the process of choosing Cross-Bench Peers does rather better than the process of choosing the rest of us. If we are to reform the House of Lords, getting that aspect into the political selection would be no bad thing. I would also like some data, in the sense of some clear research, on the value of Statement repeats. I cannot recall an occasion when a Statement repeat resulted in any change of government policy of any description. Perhaps other noble Lords can enlighten me.

Data (Use and Access) Bill [HL]

Lord Lucas Excerpts

Committee stage
Tuesday 3rd December 2024 Grand Committee

Moved by

[Lord Lucas]

5: Clause 2, page 3, line 28, at end insert—
“(1A) The Secretary of State may by regulations make provision requiring a data holder to communicate (to the extent that they have the data required to do this) in a specified manner with all or a subset of the customers for whom they hold data.”Member’s explanatory statement
This amendment is to enable communication with customers to ascertain, for instance, whether regulations have been complied with or, for example in the case of the Student Loans Company, to enable research into the outcomes of courses that they have funded.

[Lord Lucas (Con)]

My Lords, I apologise to the Committee for having not expected things to go quite as fast as they did. In moving Amendment 5, I will also speak to Amendments 200 and 202 in this group.

Amendment 5 is very much to do, in my mind, with the Office for Students and the Student Loans Company, but it is about a problem of more generality, in that public bodies that hold a great deal of customer data find that they are unable to use that access and understanding for the greater public good. In the particular instance of the Student Loans Company, it is in active touch with most British young people who have been through university and is in an excellent position to help us understand the quality of the university courses that they have been through and looked back on a few years later so that we can get data and information that will enable universities to improve those courses for future students. That is important feedback that we ought to have in our university system. Otherwise, universities just concentrate on students who are there now; the moment those students leave, the universities are not interested any more, until they are old enough to get donations out of.

We should have a much better and more self-improving system, which could be driven through the Student Loans Company. I have in the past asked the company whether it would feel able to participate in such a thing, and it said no, it would not be permitted by data protection regulations to communicate in this way with the students it looks after. We should give ourselves the power to consider that in this Bill, so that we can look at how we could use that data to make life better for future generations of students.

There are other examples of where the public realm has gathered data and contact information on people to do with a particular set of transactions but feels unable to communicate with them again to do something slightly wider than that, so I suggest to the Government that something along the lines of Amendment 5 would open some very interesting doors to improving the performance of the public realm.

Amendment 200 is on a completely different subject: how we properly define the data we are collecting so that across the public realm a particular dataset means the same thing. The instance I choose to illustrate this is sex. One would have thought that sex means male or female and, in fact, properly construed, there are only two sexes, and I hope the Supreme Court will agree in due course. Gender can be as wide as you like, but sex has two possible values, male or female. If we are collecting data on that in the National Health Service, the police service and other aspects of life to see whether we are treating men and women equally, it is very important that that data item should mean the same thing, but the police now routinely record rapes as being committed by women because the person convicted of rape chooses to identify as a woman because they think they will then get better treatment thereafter. If you are recording gender, it can be what you want, but if you are recording sex, it should be male or female.

It is really important within the National Health Service that we always mean male or female because male and female physiology differs, and if someone is a candidate for a particular treatment, it may well depend on their sex. For instance, in blood transfusions, it is important to know whether the donation came from a man or a woman, because people may react in different ways to the blood.

Having a data dictionary within government that defines particular terms for use in government statistics so that statistics collected across different departments are comparable and mean the same thing, so that you can work with them knowing exactly what they mean, ought to be part of the way we run government. Certainly, whenever I have been involved in collecting data within a largish business, data dictionaries have been common.

Lastly, I turn to a third entirely different subject, which is schools admissions data. There is provision in legislation for schools admissions authorities to publish admissions data. This, when it started, was quite useful. Local authorities would publish booklets and you could pick up a booklet for your local authority and see what the admissions rules were for all the schools in that local authority and what the outcomes of those rules had been in previous years. With a little work, you could understand which schools your child had a chance of getting into. That would then form the basis of the investigations you would do about which school you should be using. Over time, the quality of this data has degraded, mostly because the concept of an admissions authority has moved far beyond local authorities, which is where it used to be. Many individual schools and school groups are now their own admissions authority, and they do not share data with the local authority, which means that there is now—certainly in the local authorities I have looked at recently—no consolidated source of schools admissions information, either on the rules prospective pupils are subject to or on the outcomes in previous years.

That makes it a much longer and harder business to establish which schools your child has a right to go to, and the result is that it is only the socially advantaged who can find out what their options are. Anyone short of time or data literacy finds it difficult to know anything beyond which their nearest school is and to see all the other options that might be available to them.

That is something which we should turn around, and the way to do so is to make all admissions authorities drop their data into a common database. That is not difficult—it might take someone of medium talent about a day to design—and all schools have this data in a form that is easy to drop into a database, because that data is subject to a data dictionary. Terms are defined, and you know what they mean because they have to be interpreted in a consistent way by parents. It is a really easy thing to create.

Once the data is all in one place, it would be much easier for parents to establish which schools they could send their children to. It would be an opportunity for businesses of all sorts to help parents to make that easier. We ought to be putting ourselves in a position where we are making sure that we do not disadvantage people because they are disadvantaged. We should look after people who find it difficult to deal with differently arranged and differently stated sets of admissions criteria. We should not be disadvantaging people like that; we ought to—it is really quite simple—put them in a position where they are on a level footing with everyone else. I beg to move.

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[Lord Lucas (Con)]

My Lords, I am very grateful to the Minister for her reply and to my noble friends and others for their interventions before that. I am delighted that she considers that Clause 2(3)(a) covers my Amendment 5. If I have any further concerns about that when I have reread her reply in Hansard, I will write to her.

I am sure that we need to do something about data integrity across the piece. I will very much take into account what the Minister has said about the Sullivan review and how sex data is or might be recorded in the future. However, it is a considerable problem that there is no reliable source of it, particularly when it comes to deciding how to treat people medically but also in other circumstances, as my noble friend has said, such as prisons and sports. We have to think through how to have a reliable source of it, which is clearly not passports, while for those with a gender recognition certificate, birth certificates are not a reliable source of information. There are obviously other aspects of life, too, where one wants to know that the data being collected is accurate.

So far as schools’ admissions regulations are concerned, I am afraid the state of the matter is that local authorities are no longer publishing the data that they ought to. The previous Government, who had plenty of time to enforce it, did not and this Government have not yet picked up on that. I will read what the Minister has said and pursue her colleagues in the Department for Education to see if we can get some improvement on the current state of affairs. With thanks to the Minister, I beg leave to withdraw my amendment.

Amendment 5 withdrawn.

Data (Use and Access) Bill [HL]

Lord Lucas Excerpts

Committee stage
Tuesday 10th December 2024 Grand Committee

[Lord Lucas (Con)]

My Lords, I declare an interest in that I checked yesterday and Copilot has clearly scraped data from behind the paywall on the Good Schools Guide. It very kindly does not publish the whole of the review, but it publishes a summary of it. It concerns me how we police copyright and how we get things right in this Bill.

However, I do not think that trying to draw a boundary around “scientific” is the right way to do it. Looking at all the evidence on engineering biology that we have just taken for the Science and Technology Committee, they are all doing science, but they all want to make money out of it at the end, if things go right. There is no sensible boundary between science and commerce. We should expect that, with anything that is done for science, even if it is done in the social sciences, someone at the end of the day will want to build a consultancy on it. There is no defendable boundary between the two.

As my noble friend Lord Camrose said, getting a working definition of public interest is key, as is, in the context of this amendment, recognising the importance of the concepts of intellectual property, copyright, trademark, patents and so on. They are international concepts, and we should seek to hold the line in the face of technological challenges because the concepts as they are have shown their worth. We may have to adapt them in one way or another, but this should be an international thing, and we should not support local infringement, because we would then make the UK a much less worthwhile place to hold intellectual property. My intellectual property is not mobile but a lot of it is, and it wants to be held in a place where it can be defended. If we do not offer that in our legal system, we will lose a great deal by it.

Data (Use and Access) Bill [HL]

Lord Lucas Excerpts

Committee stage
Monday 16th December 2024 Grand Committee

[Baroness Harding of Winscombe (Con)]

My Lords, I was in such a hurry to apologise just now for missing Second Reading that I forgot to declare my interests and remind the Committee of my technology and, with regard to this group, charitable interests as set out in the register.

I shall speak to Amendments 95, 96, 98, 101, 102 and 104 in my name and those of the noble Lords, Lord Clement-Jones and Lord Stevenson of Balmacara, and my noble friend Lord Black of Brentwood, and Amendments 103 and 106 in my name and those of the noble Lords, Lord Clement-Jones and Lord Stevenson. I also support Amendment 162 in the name of the noble Lord, Lord Clement-Jones. I will speak only on the marketing amendments in my name and leave the noble Lord, Lord Clement-Jones, to do, I am sure, great justice to the charitable soft opt-in.

These amendments are nothing like as philosophical and emotive as the last amendment on children and AI. They aim to address a practical issue that we debated in the late spring on the Data Protection and Digital Information Bill. I will not rehearse the arguments that we made, not least because the Minister was the co-signatory of those amendments, so I know she is well versed in them.

Instead, I shall update the Committee on what has happened since then and draw noble Lords’ attention to a couple of the issues that are very real and present now. It is strange that all Governments seem reluctant to restrict the new technology companies’ use of our data but extremely keen to get into the micro detail of restricting older forms of our using data that we have all got quite used to.

That is very much the case for the open electoral register. Some 63% of people opt out of being marketed at, because they have put their name as such on the electoral register. This is a well known and well understood use of personal data. Yet, because of the tribunal ruling, it is increasingly the case that companies cannot use the open electoral register and target the 37% of people who have said that they are quite happy to receive marketing unless the company lets every single one of those users know that they are about to market to them. The danger is that we create a new cookie problem—a physical cookie problem—where, if you want to use a data source that has been commonplace for 40 years, you have to send some marketing to tell people that you are about to use it. That of course means that you will not do so, which means that you reduce the data available to a lot of small and medium-sized businesses to market their products and hand them straight to the very big tech companies, which are really happy to scrape our data all over the place.

This is a strange one, where I find myself arguing that we should just allow something that is not broken not to need to be fixed. I appreciate that the Minister will probably tell us that the wording in these amendments is not appropriate. As I said earlier in the year—in April, in the previous incarnation—I very much hope that if the wording is incorrect we could, between Committee and Report, have a discussion and agree on some wording that achieves what seems just practical common sense.

The tribunal ruling that created this problem recognised that it was causing a problem. It stated that it accepted that the loophole it created would allow one company, Experian, a sizeable competitive advantage. It is a slightly perverse one: it means that it has to let only 5 million people know that it might be about to use the open electoral register, while its competitors have to let 22 million people know. That just does not pass the common-sense test of practical use of data. Given the prior support that the Minister has shown for this issue, I very much hope that we can resolve it between Committee and Report. I beg to move.

[Lord Lucas (Con)]

My Lords, I have a couple of amendments in this group, Amendments 158 and 161. Amendment 158 is largely self-evident; it tries to make sure that, where there is a legal requirement to communicate, that communication is not obstructed by the Bill. I would say much the same of Amendment 161; that, again, it is obvious that there ought to be easy communication where a person’s pension is concerned and the Bill should not obstruct it. I am not saying that these are the only ways to achieve these things, but they should be achieved.

I declare an interest on Amendment 160, in that I control the website of the Good Schools Guide, which has advertising on it. The function of advertising on the web is to enable people to see things for free. It is why it does not close down to a subscription-only service. If people put advertisements on the web, they want to know that they are effective and have been seen, and some information about who they have been seen by. I moved a similar amendment to the previous Government’s Bill and encountered some difficulty. If the Government are of the same mind—that this requires us to be careful—I would very much welcome the opportunity of a meeting between now and Report, and I imagine others would too, to try to understand how best to make sure that advertising can flourish on the internet.

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[Baroness Jones of Whitchurch (Lab)]

I am very happy to talk to the noble Baroness about this issue. She asked what the Government’s view is; we are listening very carefully to the Information Commissioner and the advice that he is putting together on this issue.

[Lord Lucas (Con)]

My Lords, I am very grateful for the answers the noble Baroness gave to my amendments. I will study carefully what she said in Hansard, and if I have anything further to ask, I will write to her.

[Baroness Harding of Winscombe (Con)]

My Lords, in response—and very briefly, given the technical nature of all these amendments—I think that we should just note that there are a number of different issues in this group, all of which I think noble Lords in this debate will want to follow up. I thank the many noble Lords who have contributed both this time round and in the previous iterations, and ask that we follow up on each of the different issues, probably separately rather than in one group, as we will get ourselves quite tangled in the web of data if we are not careful. With that, I beg leave to withdraw the amendment.

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As useful as ADM is for promoting efficient government, people are afraid of it. They do not necessarily trust the Government, and many are worried by the Government using algorithms to make important decisions that affect their lives. If the Government intend to roll out ADM across the public sector, as they promise, then it is essential to do everything possible along the way to nurture trust with the public. These amendments would go some way to doing that.

[Lord Lucas (Con)]

My Lords, my Amendment 115 would similarly act in that way by making automated decision-making processes explain themselves to the people affected by them. This would be a much better way of controlling the quality of what is going on with automated decision-making than restricting that sort of information to professionals—to people who are anyway overworked and have a lot of other things to do. There is no one more interested in the decision of an automated process than the person about whom it is being made. If we are to trust these systems then their ability, which is way beyond the human ability, to have the time to explain why they took the decision they did—which, if the machine is any good, it knows and can easily set out—is surely the way to generate trust: you can absolutely see what decision has been made and why, and you can respond to it.

This would, beyond anything else, produce a much better system for our young people when they apply for their first job. My daughter’s friends in that position are getting into the hundreds of unexplained rejections. This is not a good way to treat young people. It does not help them to improve and understand what is going on. I completely understand why firms do not explain; they have so many applications that they just do not have the time or the personnel to sit down and write a response—but that does not apply to an automated decision-making machine. It could produce a much better situation when it comes to hiring.

As I said, my principal concern, to echo that of the noble Viscount, is that it would give us sight of the decisions that have been taken and why. If it becomes evident that they are taken well and for good reasons, we shall learn to trust them. If it becomes evident that they really are not fair or understandable, we shall be in a position to demand changes.

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to take part in the debate on this group. I support the spirit of all the amendments debated thus far.

Speaking of spirits, and it being the season, I have more than a degree of sympathy for the Minister. With so many references to her previous work, this Christmas is turning into a bit of the Ghost of Amendments Past for her. That is good, because all the amendments she put down in the past were of an excellent quality, well thought through, equally considered and even-handed.

As has been mentioned many times, we have had three versions of a data Bill so far over just over three years. One wonders whether all the elements of this current draft have kept up with what has happened in the outside world over those three years, not least when it comes to artificial intelligence. This goes to the heart of the amendments in this group on automated decision-making.

When the first of these data Bills emerged, ADM was present—but relatively discreetly present—in our society and our economy. Now it would be fair to say that it proliferates across many areas of our economy and our society, often in situations where people find themselves at the sharpest end of the economy and the sharpest end of these automated decisions, often without even knowing that ADM was present. More than that, even on the discovery that ADM was in the mix, depending on which sector of the economy or society they find that decision being made in, they may find themselves with no or precious little redress—employment and recruitment, to name but one sector.

It being the season, it is high time when it comes to ADM that we start to talk turkey. In all the comments thus far, we are talking not just about ADM but about the principles that should underpin all elements of artificial intelligence—that is, they should be human led. These technologies should be in our human hands, with our human values feeding into human oversight: human in the loop and indeed, where appropriate, human over the loop.

That goes to elements in my two amendments in this group, Amendments 123A and 123B. Amendment 123A simply posits, through a number of paragraphs, the point that if someone is subject to an automated decision then they have the right to a personalised explanation of that decision. That explanation should be accessible in its being in plain language of their choice, not having a cost attached to it and not being in any sense technically or technologically convoluted or opaque. That would be relatively straightforward to achieve, but the positive impact for all those citizens would certainly be more than material.

Amendment 123B goes to the heart of those humans charged with the delivery of these personalised explanations. It is not enough to simply say that there are individuals within an organisation responsible for the provision of personalised explanations for automated decisions; it is critical that those individuals have the training, the capabilities and, perhaps most importantly, the authority within that organisation to make a meaningful impact regarding those personalised explanations. If not, this measure may have a small voice but would have absolutely no teeth when it comes to the citizen.

In short, ADM is proliferating so we need to ensure that we have a symmetrical situation for citizens, for consumers, and for anyone who finds themselves in any domain or sector of our economy and society. We must assert the principles: human-led, human in the loop, “Our decisions, our data”, and “We determine, we decide, we choose”. That is how I believe we can have an effective, positive, enabling and empowering AI future. I look forward to the Minister’s comments.

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[Baroness Jones of Whitchurch (Lab)]

My understanding is that it would be. Every individual who was affected would receive their own notification rather than it just being on a website, for example.

Let me just make sure I have not missed anyone out. On Amendment 123B on addressing bias in automated decision-making, compliance with the data protection principles, including accuracy, transparency and fairness, will ensure that organisations take the necessary measures to address the risk of bias.

On Amendment 123C from the noble Lord, Lord Clement-Jones, I reassure him that the Government strongly agree that employment rights should be fit for a modern economy. The plan to make work pay will achieve this by addressing the challenges introduced by new trends and technologies. I agree very much with my noble friend Lord Knight that although we have to get this right, there are opportunities for a different form of work, and we should not just see this as being potentially a negative impact on people’s lives. However, we want to get the balance right with regard to the impact on individuals to make sure that we get the best rather than the possible negative effects out of it.

Employment rights law is more suitable for regulating the specific use of data and technology in the workplace rather than data protection law in isolation, as data protection law sets out general rules and principles for processing that apply in all contexts. Noble Lords can rest assured that we take the impact on employment and work very seriously, and as part of our plan to make work pay and the Employment Rights Bill, we will return to these issues.

On Amendments 119, 120, 121 and 122, tabled by the noble Lord, Lord Clement-Jones, the noble Viscount, Lord Colville, and my noble friend Lord Knight, the Government share the noble Lords’ belief in the importance of public sector algorithmic transparency, and, as the noble Lord, Lord Clement-Jones, reminded us, we had a very good debate on this last week. The algorithmic transparency recording standard is already mandatory for government departments and arm’s-length bodies. This is a cross-government policy mandate underpinned by digital spend controls, which means that when budget is requested for a relevant tool, the team in question must commit to publishing an ATRS record before receiving the funds.

As I said on Friday, we are implementing this policy accordingly, and I hope to publish further records imminently. I very much hope that when noble Lords see what I hope will be a significant number of new records on this, they will be reassured that the nature of the mandation and the obligation on public sector departments is working.

Policy routes also enable us to provide detailed guidance to the public sector on how to carry out its responsibilities and monitor compliance. Examples include the data ethics framework, the generative AI framework, and the guidelines for AI procurement. Additionally, the data protection framework already achieves some of the intended outcomes of these amendments. It requires organisations, including public authorities, to demonstrate how they have identified and mitigated risks when processing personal data. The ICO provides guidance on how organisations can audit their privacy management and ensure a high level of data protection compliance.

I know I have given a great deal of detail there. If I have not covered all the points that the noble Lords have raised, I will write. In the meantime, given the above assurances, I hope that the noble Lord will withdraw his amendment.

[Lord Lucas (Con)]

My Lords, I would be very grateful if the Minister wrote to me about Amendment 115. I have done my best before and after to study Clause 80 to understand how it provides the safeguards she describes, and have failed. If she or her officials could take the example of a job application and the responses expected from it, and take me through the clauses to understand what sort of response would be expected and how that is set out in the legislation, I would be most grateful.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am happy to write.

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This change would speed up the criminal justice process. It would reduce considerably the financial burden on the taxpayer and the massive number of police hours committed. Everything we hear from the current Government, with which I have huge amounts of sympathy, says that there is a need to reduce pressure on the public purse and to speed up police time in being able to get on to the streets and do what I think all of us hope they will do: spending time on the streets, supporting victims, catching criminals, not spending hours redacting lots of images from body-worn cameras just in case the CPS happens to use that in a charging decision. I look forward to hearing from the Minister in due course.

[Lord Lucas (Con)]

My Lords, I have Amendment 201 in this group. At the moment, Action Fraud does not record attempted fraud; it has to have been successful for the website to agree to record it. I think that results in the Government taking decisions based on distorted and incomplete data. Collecting full data must be the right thing to do.

[Baroness Kidron (CB)]

My Lords, I had expected the noble Baroness, Lady Owen of Alderley Edge, to be in the Room at this point. She is not, so I wish to draw the Committee’s attention to her Amendment 210. On Friday, many of us were in the Chamber when she made a fantastic case for her Private Member’s Bill. It obviously dealt with a much broader set of issues but, as we have just heard, the overwhelming feeling of the House was to support her. I think we would all like to see the Government wrap it up, put a bow on it and give it to us all for Christmas. But, given that that was not the indication we got, I believe that the noble Baroness’s intention here is to deal with the fact that the police are giving phones and devices back to perpetrators with the images remaining on them. That is an extraordinary revictimisation of people who have been through enough. So, whether or not this is the exact wording or way to do it, I urge the Government to look on this carefully and positively to find a way of allowing the police the legal right to delete data in those circumstances.

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The other amendments in this group are designed to remove the involvement of the Secretary of State and transfer the responsibility to appoint the commissioner from the Government to Parliament. Amendment 167A would ensure that non-executive members of the commission have a sufficient balance of expertise to inform the commission outside purely data protection issues. There is concern that the ICO will simply draw its NEDs from the same narrow profile of data protection lawyers as has previously been the case. We know from the European Union that it is important that regulators understand the broader horizon and appropriately balance GDPR enforcement with other fundamental rights, such as civil liberties and the economic impact that rulings can have. Will the Minister agree that the ICO should be looking for a broad range of expertise that can aid its decision-making in the reformed structure? I beg to move.

[Lord Lucas (Con)]

I have Amendment 135A in this group. The Bill provides a new set of duties for the Information Commissioner but no strategic framework, as the DPDI Bill did. The Information Commissioner is a whole-economy regulator. To my mind, the Government’s strategic priorities should bear on it. This amendment would provide an enabling power, such as that which the Competition and Markets Authority, which is in an equivalent economic position, already has.

[Baroness Kidron (CB)]

My Lords, I have huge sympathy for, and experience of, many of the issues raised by the noble Lord, Lord Clement-Jones, but, given the hour, I will speak only to Amendment 145 in my name and those of the noble Baroness, Lady Harding, my noble friend Lord Russell and the noble Lord, Lord Stevenson. Given that I am so critical, I want to say how pleased I am to see the ICO reporting requirements included in the Bill.

Amendment 145 is very narrow. It would require the ICO to report specifically and separately on children. It is fair to say that one of the many frustrations for those of us who spend our time advocating for children’s privacy and safety is trying to extrapolate child-specific data from generalised reporting. Often it is not reported because it is useful to hide some of the inadequacies in the level of protection afforded to children. For example, none of the community guidelines enforcement reports published for Instagram, YouTube, TikTok or Snapchat provides a breakdown of the violation rate by age group, even though that would provide valuable information for academics, Governments, legislators, NGOs and, of course, regulators. It was a point of contention between many civil society organisations and Ofcom that there was no evidence that children of different ages react in different ways, which, for anyone who has had children, is clearly not the case.

Similarly, for many years we struggled to understand Ofcom’s reporting because older children were included in a group that went up to 24, and it took over 10 years for that to change. It seems to me—I hope the Government agree—that since children are entitled to specific data privacy benefits, it follows that the application and enforcement of those benefits should be reported separately. I hope that the Government can give a quick yes on this small but important amendment.

Data (Use and Access) Bill [HL]

Lord Lucas Excerpts

Committee stage
Wednesday 18th December 2024 Grand Committee

[Lord Kirkhope of Harrogate (Con)]

My Lords, I make a brief intervention. I am not against these amendments —they are very useful in the context of the Bill. However, I am reflecting on the fact that, when we drafted GDPR, we took a six-year process and failed in the course of doing so to really accommodate AI, which keeps popping up every so often in this Bill. Every part of every amendment seems to have a new subsection referring to automative decisions or to AI generally.

Obviously, we are moving on to have legislation in due course on AI and I am sure that a number of pieces of legislation, including no doubt this one, will be able to be used as part of our overall package when we deal with the regulation of AI. However, although it is true that the UK GDPR gives, in theory, a higher standard of protection for children, it is important to consider that, in the context of AI, the protections that we need to have are going to have to be much greater—we know that. But if there is going to be a code of practice for children and educational areas, we need also to consider vulnerable and disabled people and other categories of people who are equally entitled to have, and particularly with regard to the AI elements need to have, some help. That is going to be very difficult. Most adults whom I know know less about AI than do children approaching the age of 18, who are much more knowledgeable. They are also more knowledgeable of the restrictions that will have to be put in place than are adults, who appear to be completely at sea and not even understanding what AI is about.

I make a precautionary point. We should be very careful, while we have AI dotted all the way through this, that when we specify a particular element—in this case, for children—we must be aware of the need to have protection in place for other groups, particularly in the context of this Bill and, indeed, future legislation.

[Lord Lucas (Con)]

My Lords, I very much support the thrust of these amendments and what the noble Lord, Lord Knight, said in support of and in addition to them. I declare an interest as a current user of the national pupil database.

The proper codification of safeguards would be a huge help. As the noble Baroness, Lady Kidron, said, it would give us a foundation on which to build. I hope that, if they are going to go in this direction, the Government will take an immediate opportunity to do so because what we have here, albeit much more disorganised, is a data resource equivalent to what we have for the National Health Service. If we used all the data on children that these systems generate, we would find it much easier to know what works and in what circumstances, as well as how to keep improving our education system.

The fact that this data is tucked away in little silos—it is not shared and is not something that can be used on a national basis—is a great pity. If we have a national code as to how this data is handled, we enable something like the use of educational data in the way that the NHS proposes to use health data. Safeguards are needed on that level but the Government have a huge opportunity; I very much hope that it is one they will take.

[Viscount Camrose (Con)]

I start by thanking all noble Lords who spoke; I enjoyed the vivid examples that were shared by so many of them. I particularly enjoyed the comment from the noble Lord, Lord Russell, about the huge gulf in difference between guidance, of which there is far too much, and a code that actually drives matters forward.

I will speak much more briefly because this ground has been well covered already. Both the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, seek to introduce codes of practice to protect the data of children in education services. Amendment 138 in the name of the noble Lord seeks to introduce a code on processing personal data in education. This includes consultation for the creation of such a code—a highly important element because the safety of this data, as well as its eventual usage, is of course paramount. Amendment 141 in the name of the noble Baroness, Lady Kidron, also seeks to set out a code of practice to provide heightened protections for children in education.

Those amendments are absolutely right to include consultation. It is a particularly important area of legislation. It is important that it does not restrict what schools can do with their data in order to improve the quality and productivity of their work. I was very appreciative of the words of the noble Lord, Lord Knight, when he sketched out some of the possibilities of what becomes educationally possible when these techs are wisely and safely used. With individual schools often responsible for the selection of technologies and their procurement, the landscape is—at the risk of understatement —often more complex than we would wish.

Alongside that, the importance of the AI Safety Institute’s role in consultation cannot be overstated. The way in which tech and AI have developed in recent years means that its expertise on how safely to provide AI to this particularly vulnerable group is invaluable.

I very much welcome the emphasis that these amendments place on protecting children’s data, particularly in the realm of education services. Schools are a safe place. That safety being jeopardised by the rapid evolution of technology that the law cannot keep pace with would, I think we can all agree, be unthinkable. As such, I hope that the Government will give careful consideration to the points raised as we move on to Report.

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[Lord Hampton (CB)]

My Lords, I support Amendments 204, 205 and 206 in the names of my noble friends Lady Kidron and Lord Freyberg, and of the noble Lords, Lord Stevenson and Lord Clement-Jones, in what rapidly seems to be becoming the Cross-Bench creative club.

I spent 25 years as a professional photographer in London from the late 1980s. When I started, retouchers would retouch negatives and slides by hand, charging £500 an hour. Photoshop stopped that. Professional film labs such as Joe’s Basement and Metro would work 24 hours a day. Snappy Snaps and similar catered for the amateur market. Digital cameras stopped that. Many companies provided art prints, laminating and sundry items for professional portfolios. PDFs and websites stopped that. Many different forms of photography, particularly travel photography, were taken away when picture libraries cornered the market and drove down commissions to unsustainable levels. There were hundreds if not thousands of professional photographers in the country. The smartphone has virtually stopped that.

All these changes were evolution and the result of a world becoming more digitised, but AI web crawlers are different, illegally scraping images without consent or payment then potentially killing the trade of the victim by setting up in competition. This is a parasite, but not in the true sense, because a parasite is careful to keep its victims alive.

[Lord Lucas (Con)]

My Lords, I very much support these amendments. I declare an interest as an owner of written copyright in the Good Schools Guide and as a father of an illustrator. In both contexts, it is very important that we get intellectual property right, as I think the Government recognised in what they put out yesterday. However, I share the scepticism of those who have spoken as to whether the Government’s ideas can be made to work.

It is really important that we get this straight. For those of us operating at the small end of the scale, IP is under continual threat from established media. I write maybe 10 or a dozen letters a year to large media outfits reminding them of the borders, the latest to the Catholic Herald—it appears not even the 10 commandments have force on them. But what AI can do is a huge measure more difficult to deal with. I can absolutely see, by talking to Copilot, that it has gone through my paywall and absorbed the contents of the Good Schools Guide, but who am I supposed to go at for this? Who has actually done the trespassing? Who is responsible for it? Where is the ownership? It is difficult to enforce copyright, even by writing a polite letter to someone saying, “Please don’t do this”. The Government appear to propose a system of polite letters saying, “Oh dear, it looks as if you might have borrowed my copyright. Please, can you give it back?”

This is not practically enforceable, and it will not result in people who care about IP locating their businesses here. Quite clearly, we do not have ownership of the big AI systems, and it is unlikely that we will have ownership of them—all that will be overseas. What we can do is create IP. If we produce a system where we do not defend the IP that we produce, then fairly rapidly, those IP creators who are capable of being mobile will go elsewhere to places that will defend their IP. It is something that a Government who are interested in growth really ought to be interested in defending. I hope that we will see some real progress in the course of the Bill going through the House.

[Lord Clement-Jones (LD)]

My Lords, I declare my AI interests as set out in the register. I will speak in support of Amendments 204, 205 and 206, which have been spoken to so inspiringly by the noble Baroness, Lady Kidron, and so well by the noble Lords, Lord Freyberg, Lord Lucas and Lord Hampton, the noble Earl, Lord Clancarty, and the noble Viscount, Lord Colville. Each demonstrated different facets of the issue.

I co-chair the All-Party Group on AI and chaired the AI Select Committee a few years ago. I wrote a book earlier this year on AI regulation, which had a namecheck from the noble Baroness, Lady Jones, at Question Time, which I was very grateful for. Before that, I had a career as an IP lawyer, defending copyright and creativity, and in this House, I have been my party’s creative industries spokesperson. The question of IP and the training of generative AI models is a key issue for me.

This is the case not just in the UK but around the world. Getty and the New York Times are suing in the United States, as are many writers, artists and musicians. It was at the root of the Hollywood actors’ and writers’ strikes last year. It is one thing to use the tech—many of us are AI enthusiasts—but it is another to be at the mercy of it.

Close to home, the FT has pointed out, using the index published by the creator of an unlicensed dataset called Books3, published online, that it is possible to identify that over 85 books written by 33 Members of the House of Lords have been pirated to train AI models from household names, such as Meta, Microsoft and Bloomberg. Although it is absolutely clear that we know that the use of copyrighted works to train AI models is contrary to UK copyright law, the laws around the transparency of these activities have not caught up. As we have heard, as well as using pirated e-books in their training data, AI developers scrape the internet for valuable professional journalism and other media, in breach of both the terms of service of websites and copyright law, to train commercial AI models. At present, developers can do this without declaring their identity, or they may use IP scraped to appear in a search index for the completely different commercial purpose of training AI models.

How can rights owners opt out of something that they do not know about? AI developers will often scrape websites or access other pirated material before they launch an LLM in public. This means that there is no way for IP owners to opt out of their material being taken before its inclusion in these models. Once used to train these models, the commercial value, as we have heard, has already been extracted from IP scraped without permission, with no way to delete data from these models.

The next wave of AI models responds to user queries by browsing the web to extract valuable news and information from professional news websites. This is known as retrieval-augmented generation—RAG. Without payment for extracting this commercial value, AI agents built by companies such as Perplexity, Google and Meta will, in effect, free-ride on the professional hard work of journalists, authors and creators. At present, such crawlers are hard to block. There is no market failure; there are well-established licensing solutions. There is no uncertainty around the existing law; the UK is absolutely clear that commercial organisations, including gen AI developers, must license the data that they use to train their large language models.

Here, as the Government’s intentions become clearer, the political, business and creative temperature is rising. Just this week, we have seen the creation of a new campaign, the Creative Rights in AI Coalition—CRAIC —across the creative and news industries and, recently, Ed Newton-Rex reached more than 30,000 signatories from among creators and creative organisations.

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[Lord Lucas (Con)]

My Lords, having a system such as this would really focus the public sector on how we can generate more datasets. As I said earlier, education is an obvious one, but so is mobile phone data. All these companies have their licences. If a condition of the licence was that the data on how people move around the UK became a public asset, that would be hugely beneficial to policy formation. If we really understood how, why and when people move, we would make much better decisions. We could save ourselves huge amounts of money. We really ought to have this as a deep focus of government policy.

[Lord Clement-Jones (LD)]

My Lords, I have far too little time to do justice to this subject. We on these Benches welcome this amendment. It is entirely consistent with the sovereign health fund proposed by Future Care Capital and, indeed, with the proposals from the Tony Blair Institute for Global Change on a similar concept called the national data trust. Indeed, this concept formed part of our Liberal Democrat manifesto at the last general election, so of course I support the amendment.

It would be very useful to hear more about the national data library, including on its purpose and operation, as the noble Baroness, Lady Kidron, said. I entirely agree with her that there is a great need for a sovereign cloud service or services. Indeed, the inability to guarantee that data on the cloud is held in this country is a real issue that has not yet been properly addressed.

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Moved by

[Lord Lucas (Con)]

211F: After Clause 132, insert the following new Clause—
“Local Environmental Records Centres (“LERCs”)(1) Any planning application involving biodiversity net gain must include a data search report from the relevant Local Environmental Records Centre (LERC), and all data from biodiversity surveys conducted in connection with the application must be contributed free of charge to the LERC in record-centre-ready format.(2) All government departments and governmental organisations, local and national, that collect biodiversity data for whatever reason, must contribute it free of charge to the relevant LERCs in record-centre-ready format, and must include relevant LERC data in formulating policy and operational plans.”Member’s explanatory statement
This amendment ensures that all the biodiversity data collected by or in connection with government is collected in Local Environmental Records Centres, so records are as good as possible, and that that data is then used by or in connection with government so that data is put to the best possible use.

[Lord Lucas (Con)]

My Lords, environmental data, specifically such things as biodiversity data, is a key component to getting policy in this area right. To do so, we need to make sure that all the good data we are generating around the UK gets into our storage system, and that the best possible and most complete data is used whenever we make decisions.

We currently run that through a system of local environmental records centres that are independent and not for profit. Since that is the system we have, it ought to be run right. At the moment, we are failing to capture a lot of quality data because the data is not coming in from the planning system, or from other similar functions, in the way that it should. We are not consistently using that data in planning as we should. Natural England, which ought to be intimately linked into this system, has stepped away from it for budgetary reasons. The environment is important to us. If the Government are serious about that, we have to get our data collection and use system right. I beg to move.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Lord, Lord Lucas, for his Amendment 211F. I absolutely agree that local environmental records centres provide an important service. I reassure noble Lords that the Government’s digital planning programme is developing data standards and tools to increase the availability, accessibility and usability of planning data. This will transform people’s experience of planning and housing, including through local environmental records centres. On that basis, I must ask the noble Lord whether he is prepared to withdraw his amendment.

[Lord Lucas (Con)]

My Lords, I am grateful for that extensive answer from the Minister. If I have anything that I hope that she might add, I will write to her afterwards.

My heart is always in the cause of making sure that the Government get their business done on time every time, and that we finish Committee stages when they ask, as doubtless they will discover with some of the other Bills they have in this Session. For now, I beg leave to withdraw my amendment.

Amendment 211F withdrawn.