Digital Economy Bill

Baroness Byford Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[The Lord Bishop of Chester]

My Lords, this is an important amendment because it touches upon the bigger issue of the impact of artificial intelligence on all sorts of aspects of our lives. There is a law called Moore’s law, which says that every two years the power of computers doubles. That has been true over the past 20 or 30 years and we should assume that that power will continue to develop. Artificial intelligence in all its impacting forms will be more and more prevalent in our society and more and more potent in the hands of terrorists in the years to come.

We cannot ask Ofcom to solve all the problems in this area, but I would like to know where the ownership of these risks and the rapid changes in our society falls in the eyes of the Government. Perhaps Ofcom has a role in this regard—search engines or whatever—but it is really part of a bigger picture of how we get ahead of the game with the impact of artificial intelligence. We read in the papers about driverless cars appearing on our streets, and in many other areas of life artificial intelligence will impact upon us. Where is this owned in the corridors of government?

[Baroness Byford (Con)]

My Lords, I would like to support my noble friend in his amendment. Algorithms are basically mathematical. The power of computers is used to record, classify, summarise and project actions that indicate what is happening in the world around about us. Algorithms can be applied in particular to social media, which other noble Lords have referred to, and to normal internet usage and browsing. They reach decisions about public interest, about you and about me.

According to a recent radio programme, algorithms are used to make individual decisions in the fields of employment, housing, health, justice, credit and insurance. I had heard that employers are increasingly studying social media to find out more about job applicants. I had not realised that an algorithm, programmed by an engineer, can, for example, take the decision to bin an application. If that is true, that is absolutely unacceptable. It certainly explains why so many jobseekers do not receive a response of any kind. There is a very real danger that a person could also be refused a mortgage or a better interest rate as the result of an algorithmic decision. Even now some companies use algorithms based on phone numbers to decide whether a caller is high or low value. Highs get to speak to a person: lows are left holding on until they hang up. Algorithm designers refuse to answer any questions, I understand, about the data that are used or their application on grounds of commercial confidentiality. There are real concerns that if we continue to allow such liberties, there will be an increasing risk of discrimination—intentional or accidental—against people of certain races, religions or ages. One example of algorithm use cited in the programme was that of differential pricing by Uber.

The EU intends that by July 2018 citizens will have the right to an explanation of decisions affected by the workings of these algorithms, such as the online rejection of a bank loan. I do not feel that we should wait until then, and although my noble friend’s amendment might not be perfect, I am really grateful that he has tabled it today and that we are having this worthwhile debate.

[Lord Clement-Jones (LD)]

My Lords, I also thank the noble Lord, Lord Lucas, for putting down this amendment. Indeed, this amendment has many good aspects to it, but I will adopt a phrase which the noble and learned Lord, Lord Keen, used the other day, which is, “It doesn’t go nearly far enough”. It really highlights—and I declare an interest as the co-chair of the new All-Party Parliamentary Group on Artificial Intelligence—some of the issues that this Bill simply does not deal with. This does need huge consideration: all the ethics involved not only with artificial intelligence, but with the internet of things and the great many regulatory issues which spring from the new technologies. Algorithms are a part of it, of course they are, but we need further consideration.

I agree with those who have said that perhaps Ofcom is not necessarily the best regulator for this—I do not know—and it may be that we need to construct a purpose-built regulator for the world of artificial intelligence and the internet of things in ethical terms. I am not quite sure that Ofcom has got the necessary tools in terms of the ethics aspect of it.

I am very much in spirit with the noble Lord and I am delighted that he has raised it, but we are at the very beginning of a really important debate on a lot of these areas. The essence of all this is trust. We had a continuous debate through Part 5 about the government sharing of data. This is about the private sector and its use of a lot of our data and the way it sorts them and places them in the search engines. Trust is the overwhelming issue of our age, and we are not there yet. If we are going to reassure people who want to use these new technologies, we really do need to come up with a proper regulatory system. I do not think that this new clause quite provides it.

Digital Economy Bill

Baroness Byford Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 6th February 2017 Lords Chamber

[Baroness Byford (Con)]

My Lords, I shall speak to my Amendment 85, which is linked with this group. I thank the noble Lord, Lord Collins, for his introduction. I believe in data sharing; I declare that straightaway. However, it needs to be well managed, because, as the noble Baroness has just stressed, we do not want information to be used in a way that is, unfortunately, not fair to some of the very vulnerable families of which she has spoken.

Although the amendment moved by the noble Lord, Lord Collins, deals with Clause 30, my amendment relates to Clause 33. I have asked that Clause 33(2)(c) to (f) be deleted, if only to give me an opportunity to express my concerns about this aspect of the Bill. In these two clauses, we are talking about information being disclosed by gas and electricity companies and information being given by other authorities to gas and electricity suppliers. That is why one or two of my thoughts went searching as to why they would be in this group.

My amendment is very much a probing amendment and seeks clarification. The Explanatory Notes state that these paragraphs are included to enable personal information to be used in,

“criminal investigations, civil or criminal legal proceedings or the prevention or detection of crime or the prevention of antisocial behaviour”.

My amendment refers particularly to subsection 2(c) in that group. Will the Minister explain in what way the gas and electricity suppliers will be involved in such activities other than reporting persons and their behaviour to the police? I do not quite see what responsibility the gas or electricity suppliers have with this part of the Bill in that context.

I also confess considerable alarm at the prospect of power suppliers having access to very personal and private information to enable them, as I understand it, to investigate, detect, prevent or prosecute anything outside the realm of their normal expertise. Surely, their original expertise was the supply, maintenance and, where necessary, repair of power lines and pipes, but in this part of the Bill it seems to go very wide. I shall speak to other amendments later, so I will not go on at great length at this stage, but this part of the Bill raises questions for me. I can see some of the advantages of data sharing, but how do we define antisocial behaviour and what does that have to do with gas and electricity boards? I may be wrong; I look forward to hearing from the Minister.

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On that basis, I invite the noble Lord to withdraw the amendment. I say very fully that these are well-intentioned amendments because we understand what lies behind them and why the probing amendments in this group have been tabled.

[Baroness Byford]

I specifically asked why the responsibility has been placed on gas and electricity suppliers to have regard to some of the things stated in the Bill, and I would be grateful for an answer. I do not mind if the answer is not given now, but if that could be clarified I would be grateful.

[Lord Keen of Elie]

I am perfectly prepared to write to my noble friend to clarify that point, and I will place a copy of any letter in the Library.

Digital Economy Bill

Baroness Byford Excerpts

Committee: 3rd sitting Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

[Baroness Janke]

My Lords, our amendments in this group add safeguards. The noble Lord, Lord Collins, referred to some of these: that sharing of information be minimal; that the authorised conduct be proportionate to the object of the exercise; that a privacy impact assessment be conducted; and that proposed measures be subject to public consultation.

In addition, we support the amendments advocated by the BMA. Amendment 89 would remove the subsection through which sharers of information are not bound by the principle of confidentiality. Amendment 93 is a further safeguard preventing an authorised sharer of information from disclosing identifiable health information. I look forward to the Minister’s response.

[Baroness Byford (Con)]

My Lords, in this group I tabled Amendments 100 and 196. Within this group we are debating data sharing and the putting in place of safeguards that make us confident in the next move to make life better for the majority of people. I have one or two direct questions, particularly on the level of data that will be supplied from one authority to another. For example, does the Bill intend that information be supplied on the number of households in a given postal area where child benefit is being claimed and/or where all adults are unemployed? Would it be up to the users of the data to extract a summary picture from details of, for example, names, addresses, whether benefits are received, whether householders are unemployed or any other data?

At any level of inquiry, I presume data will be transferred such as dates of birth and marital status that, were they to fall into the wrong hands, could be used to perpetrate private fraud. No one today has mentioned private fraud, but it can come about as a result of lack of security and safeguarding. Again, perhaps the Minister will indicate what relevant provisions there are. I am unsure whether I have missed some. At earlier stages of the Bill I mentioned the amount of fraud going on and it is horrifying. If the Bill can in any way tighten up on that, it would be an advantage.

For example, will personal information cover things such as whether an individual has a diagnosis of dementia or whether a family has been a cause of concern to the social work department in their own area? Who makes these judgments? At what stage are these activated? I may not have read the Bill carefully enough to find the missing answers. I pose these fairly simple questions to make sure that our safeguarding of this information is secure.

Amendment 100 is a probing amendment that seeks to complete the explanation of what information HMRC would disclose, providing examples of the circumstances under which it would be disclosed and a complete list of the groups or persons whose information would be handed over. This relates to Clause 30, of which we spoke earlier. Subsections (9) and (10) specify the well-being of persons or households and define well-being in terms of physical or mental health, contributions to society—which we have covered slightly earlier on and which is difficult; I should be glad of clarification on that—and emotional, social and economic well-being. The latter are easier to understand.

Clause 31 refers to people living in fuel poverty. Again, we debated this previously. Fuel poverty has been defined as,

“living on a lower income in a home which cannot be kept warm at a reasonable cost”.

Clause 32 also refers to people living in fuel poverty. I do not understand what is intended, nor what will be involved for those deemed to be affected. Defining well-being in terms of well-being suggests that definitions of those covered by this legislation could depend on the personal and political stance of those making those decisions. What is “lower income”? Within what limits do homes qualify under these clauses and who will rule that they cannot be kept warm at reasonable cost? What will be the limits of powers of such a decision-maker over, for example, someone who prefers to wrap up for three months of the year so they may enjoy their garden for nine; in other words, somebody who is living in a bigger house that costs more to heat? Will an individual be able to opt not to have personal information shared within local authorities and/or with gas and electricity suppliers?

Turning now to my Amendment 196 in this group, I do not pretend to know anything about the structure, organisation or responsibilities of HMRC. Hence, I do not understand whether an “official” is someone equivalent, say, to a board member in a quoted company. I fear, however, that that is unlikely to be the case. In this era of Facebook, Snapchat and the substitution of public opinion for demonstrable fact, I am unhappy—I do not know whether other noble Lords are—that perhaps a more junior member of HMRC could decide that disclosure would be in the public interest. In other words, where does the buck stop?

Disclosure of personal information, even supposedly non-identifying, should be done only on the authority of the head of the organisation. He or she presumably will have the knowledge, experience and breadth of understanding to be sure that it cannot be combined with other data to name individuals. He or she will also, presumably, be less likely to make errors of judgment, and of course a claim of ignorance of any such disclosure would not stand up to scrutiny, as they would obviously be at the most senior level.

[Baroness Hamwee]

My Lords, I will just pick up the noble Baroness’s last point about who is an official. There are examples, in other legislation, of references to “senior officials” and “designated officials”, which might be somewhere between the junior official she has in mind and the Permanent Secretary, but she is right to draw the issue to the Committee’s attention.

On an earlier group, the noble and learned Lord indicated that he was going to speak at greater length—I assume that may be on this group—on the reason for using the term “personal information” rather than “data”. Perhaps I may use my noble friend’s Amendment 213 to ensure that we get to share more of Government’s thinking. I understand the point about corporations, since in the one case, they come within the group covered, and in the other they do not. But I am still puzzled as to why such efforts have had to be made to deal with personal information and then to add in references to the Data Protection Act, rather than starting from the DPA—with any necessary exclusions—which would have taken us straight to the involvement of the Information Commissioner, the data protection principles and so on.

I wondered during the Statement whether to have a go at some alternative drafting for Report, but thought I had better wait for this discussion. But perhaps part of it boils down to a question on Clause 33(8), which says, in wording replicated elsewhere, that,

“nothing in section 30, 31 or 32 authorises … a disclosure which … contravenes the Data Protection Act”.

To look at it from the other end of that telescope, is there any personal information which is the subject of the Bill that would not fall within the DPA and therefore not be protected by that clause?

Digital Economy Bill

Baroness Byford Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

[Baroness Byford (Con)]

My Lords, my opposition to Clause 39 standing part of the Bill forms part of this group. I have listened carefully to what the noble Lord, Lord Clement-Jones, has just said. I come to this from a slightly different angle but the conversation goes round and round in a circle, and here we are trying to introduce protections again.

I tabled my opposition to the clause for probing reasons. I wonder whether it is possible to have examples of when and why a civil registration authority would disclose information. The definition in new Section 19AA(6)(e), introduced in Clause 39, lists as civil registration officials those local authority classifications which also appear as specified public authorities. Do the disclosure powers mean therefore that a civil registration official in, for example, my home county of Leicestershire may disclose information to other personnel employed within the county council, or do they empower him to disclose information to any or all of the other specified public authorities? From my reading of the subsection, that is not quite clear.

Would the regulations be used to divulge information specific to a person or perhaps a family, or could they ever cover everything registered at a particular time or relating to a particular location? For example, why would the NHS have an interest in receiving such information?

Could this chapter result in a large-scale information exchange between civil registration officials and public authorities using the internet? If so, how will such data be protected both in transit and at the receiving end? Do all public authorities use the same methods to guard against data theft and hacking? I shall be interested to hear the Minister’s response.

[Baroness Hamwee (LD)]

My Lords, perhaps I may ask a couple of questions which arise from the fact sheet on this issue. On civil registration, it says:

“The Bill establishes a framework, with appropriate safeguards, to share bulk registration information where there is a clear and compelling need”.


I wonder whether the Minister can help the Committee in understanding where that is translated into the Bill. The fact sheet also says:

“There are no intentions to share data with the private sector or for data to be used for any commercial purposes”.


It then goes on to say that,

“the powers would not permit this”.

However, I am sure that the Minister will understand my querying the words “no intentions”, because they suggest that there could be a change, and possibly one with which Parliament is not hugely involved. I am going to assume that the points made by the Delegated Powers and Regulatory Reform Committee are in the rather large pile of items that it raised and which the Government will reply to before Report, so I am referring to that only in passing, but it would be very helpful to understand how the points in the fact sheet, which is where many people would start, move over into the legislation.

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Moved by

[Baroness Byford]

199: Clause 68, page 66, line 16, leave out from beginning to end of line 25 on page 67 and insert—
“(2) Subject to subsection (1) of this section and section 45E, the Board may, by notice in writing to a public authority to which this section applies, require the authority to disclose to the Board information which—(a) is held by the authority in connection with its functions, and(b) is specified, or is of a kind specified, in the notice.(3) A notice under subsection (2) may require information to be disclosed on more than one date specified in the notice within a period specified in the notice.(4) A notice under subsection (2) other than one within subsection (3) must specify the date by which or the period within which the information must be disclosed.(5) A notice under subsection (2) may specify the form or manner in which the information to which it relates must be disclosed.(6) A notice under subsection (2) may require the public authority to consult the Board before making changes to—(a) its processes for collecting, organising, storing or retrieving the information to which the notice relates, or(b) its processes for supplying such information to the Board.(7) The reference in subsection (6) to making changes to a process includes introducing or removing a process.(8) The Board may give a notice under subsection (2) only if the Board requires the information to which the notice relates to enable it to exercise one or more of its functions.(9) The Board must obtain the consent of the Scottish Ministers before giving a notice under subsection (2) to a public authority which is a Scottish public authority with mixed functions or no reserved functions (within the meaning of the Scotland Act 1998).(10) The Board must obtain the consent of the Welsh Ministers before giving a notice under subsection (2) to a public authority which is a Wales public authority as defined by section 157A of the Government of Wales Act 2006.(11) The Board must obtain the consent of the Department of Finance in Northern Ireland before giving a notice under subsection (2) to a public authority if—(a) the public authority exercises functions only as regards Northern Ireland, and(b) its functions are wholly or mainly functions which relate to transferred matters (within the meaning of the Northern Ireland Act 1998).(12) A public authority to which a notice under subsection (2) is given must comply with it. (13) But the public authority need not comply with the notice if compliance—(a) might prejudice national security,(b) would contravene the Data Protection Act 1998,(c) would be prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000, or(d) would contravene directly applicable EU legislation or any enactment to the extent that it implements EU legislation.”

[Baroness Byford (Con)]

My Lords, I rise to move the amendment tabled by my noble friend Lord Willetts, who apologises that he could not be here tonight. I have the two other amendments in the same group. Clause 68 makes mandatory the provision of data by Crown bodies to the ONS for defined statistical research purposes. An alternative approach might be for an organisation such as the Information Commissioner’s Office to provide arbitration on contentious requests.

Clear insight into whether the Bill directs Crown bodies to share data from statistics is needed in Clause 68. At the Bill’s Committee stage in the House of Commons, where there was a long discussion on this, Chris Skidmore, Minister for the Constitution in the Cabinet Office, said it would be possible for a Crown body to refuse an ONS request for data and,

“where necessary, have their refusal put before Parliament”.—[Official Report, Commons, Digital Economy Public Bill Committee, 27/10/16; col. 379.]

The Royal Statistical Society’s primary objection to this is that it provides no subsequent mechanism for the ONS to secure access to the data. It is also unclear to it what the process means in practice, which part of the legislature will deal with that correspondence, what it is expected to do with it and what sanctions it can apply for non-disclosure. The RSS has been asking why this is in place and whether it is justified, especially as other countries, such as Canada, operate with less burdensome arrangements. I should say that I am very grateful to the Royal Statistical Society for its briefing, otherwise I would be really lost. The RSS says:

“Including the Minister’s contribution, we have heard two arguments thus far … The Minister explained the different treatments for Crown bodies and other public authorities as being due to conventions: ‘That way of working, set out in sections 45B and 45C, ensures consistency between how a Crown body interacts with another on the one hand, and how a Crown body interacts with a non-Crown body on the other’ … We have also been privy to a different, earlier argument that due to the indivisibility of the Crown, one Crown body cannot give directions to another”.


If we thought earlier discussions were difficult, I think it is getting even more so.

The briefing continues by saying that,

“we have sought and obtained legal advice, which suggests that Parliament could technically direct departments to do what it deems fit. The government’s position, although it is not unprecedented, appears politically or culturally based. It may be that the government has heard objections from some departments to a mandatory approach. We are aware that there could be reluctance on the part of some departments to share data generally, and with ONS and researchers in particular. However, problems of risk aversion to data sharing ought to be addressed without obstructing the proposed right for ONS to access data for statistical purposes, which has been more widely supported and called for, for example, by the Public Administration Select Committee (2013) and the Science and Technology Select Committee (2016), and in other reports described in the House of Commons Library’s analysis”.

There is much more material here but I shall not push the matter further. I hope I have given my noble friend enough to respond to.

My Amendments 208 and 209, which are linked to this, are much simpler and more direct as far as I am concerned, because I am not technically astute on the other topic. Large, well-known charities employ many people using many skills and who are occupied full-time in their jobs. Little charities rely on unpaid volunteers who may not have a wide range of skills and who use their free time to work purely for the charity. I have two examples in mind. The first is Freddie’s Wish, which commemorates a little boy who died in a car crash. His mother set up the charity to help local bereaved families and to raise money for the children’s hospital and the air ambulance. In two years it has raised over £50,000 and trained more than 100 volunteers in paediatric first aid.

The second example is Evelyn’s Gift, which has been a registered charity for less than a year although its founder and volunteers have been working for nearly four years. It is in memory of a seven year-old girl who died of respiratory illness. Its aims are to arrange CPR training and to continue her practice of doing little acts of kindness. The list of acts done in her name and in the name of people and the organisations that support them is inspiring. The charity employs no one and all the work is carried out by unpaid volunteers.

Organisations such as these have no resources to supply the Statistics Board with information. An unpaid voluntary worker would have to give time to filling in forms instead of doing the work he or she has signed up for and dearly wishes to do. It could be difficult to persuade anyone to donate even more time in this pursuit. A small charity with irregular income but making an important local contribution could well be destroyed by a fine levied under new Section 45F(3).

Most people nowadays have heard of charitable shoe boxes. These are sent, filled with practical gifts—hand-knitted hats, scarves and gloves, pens and paper, recycled soft toys, tennis balls and so on—to underprivileged children in Africa and eastern Europe, and, indeed, in our own country. Those who fill them spend their own money and devote much time to making up these boxes. The work is carried out throughout the year and each box going abroad to Africa costs at least £2.50 to transport in November and December. Villages, primary schools, care homes and religious groups donate goods, money, time and effort to reclaiming, recycling and packing huge quantities of otherwise unwanted items. They also raise funds for basic toiletries, small packs of sweets and things such as pens and paper, without which some children cannot go to school. I know of one village that last year sent 1,326 boxes to the central depot.

Who is to fill in the forms for the Statistics Board, and is that really necessary for these very small charities? The boxes come from all over the country. They must not contain liquids, chocolate or sweets dated for expiry before the end of March of the following year. Beyond this, there is no record of contents, value or hours worked. With such charities, my concern is that the figures available to the Statistics Board will be solely to do with the transport of the finished items. That would surely distort the results of any study by the board. I suggest that we should therefore exempt such charities from the Bill. I beg to move.

[The Deputy Speaker (Viscount Ullswater) (Con)]

I must advise your Lordships that, if this amendment is agreed to, I will not be able to call Amendments 200 to 202 because of pre-emption.

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One point that I would note is that Section 33 of the 2015 Act has not yet been commenced. We are exploring transitional arrangements to address this, and intend to return to this matter on Report. However, in the present circumstances, I invite my noble friend to withdraw the amendment.

[Baroness Byford]

I am very grateful to my noble and learned friend for his response. I am unable to really comment properly on Amendment 199, because I would like my noble friend Lord Willetts to have a chance to read and reflect on the Minister’s response to that issue.

On my own two amendments, I thank him for his comments. One thing that has always troubled me with charities is that sometimes you have a small charity that has a large income, but at the other end you have a large charity with a very small income. I am not totally clear, but I shall read very carefully on whether the lay-down that we have at the moment on micro and small is correct for what I am trying to suggest the Government should think about. However, I thank the Minister for his full response, which I shall read carefully in Hansard. In the meantime, I beg leave to withdraw the amendment.

Amendment 199 withdrawn.