Data (Use and Access) Bill [HL]

Baroness Ludford Excerpts

Consideration of Commons amendments and / or reasons
Monday 12th May 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I wonder if I could go back to the wording proposed under Motion 52A. The whole purpose of it is limited. From a very practical and basic point of view, once the Supreme Court has told us that biological sex is to rule, the points that the noble Viscount, Lord Hailsham, makes, which I entirely understand and sympathise with, really do not arise in this issue. If we are to have data, the data must be accurate. The only point that I am asking your Lordships’ House to consider—this is what the noble Viscount, Lord Camrose, is asking—is:

“For the purposes of this section, sex data must be collected in accordance with the following category terms and definitions”.


That seems eminently sensible. If we do not have it, I see real problems of a different sort from those that the noble Viscount, Lord Hailsham, has raised.

[Baroness Ludford (LD)]

My Lords, I wish to speak to Motions 32A and 52A which, as the noble and learned Baroness, Lady Butler-Sloss, said, appear eminently sensible.

The Minister—to whom I am also grateful for the meeting that I was able to join—assured us that we can trust the digital verification services because they will be based on the data accuracy principle of the GDPR, but that principle has been in place for a decade during which, as Professor Alice Sullivan recounted in her important report that the Minister welcomed earlier, statistics have become utterly muddled and confused. That is particularly so in this area, because sex and gender identity have been collected and conflated in a single data field such that the meaning of sex has been obscured.

I welcome the Minister’s support for the Supreme Court judgment, but, as he said, that judgment confirmed that sex in the Equality Act can only mean and has only ever meant biological sex. However, that has been the case for 15 years, during which all this muddle has taken place. The Minister tells us that we can trust the Government to respect the judgment and to reject the amendments but, before considering that, can he answer a few questions?

First, why is it not appropriate to ensure that in this Bill, on data use and access and which specifically talks about a digital verification system, unreliable datasets are not used for digital verification? If it is not in this timely data legislation, then when? The Minister referred to the forthcoming Equality and Human Rights Commission guidance, but I suggest that we do not have to wait for that guidance in this area. We have this Bill, this vehicle, and it is surely appropriate to enshrine everything that the Minister said in this legislation.

Secondly, have the Government considered how the digital verification system will work with regard to an estimated 100,000 people who have a different record for their sex across different public bodies—for example, the birth register, Passport Office, driving licence authority and NHS? How is that going to pan out? How will the Government ensure that this mixed data, such as so-called passport sex, is not relied on as an authoritative source to provide an answer to the sex question in the DVS? I respect the concerns that the noble Viscount, Lord Hailsham, rightly raised; my point is how we will ensure that the data verified for the sex field in the DVS, irrespective of any other field, is accurate and corresponds to biological sex.

Will the Government publish clear guidance for data users so that they know which sources of sex data can be trusted and which remain conflated? How will they put technical measures in place to ensure that unreliable sources do not come through the information gateway? Is it impossible that a person who expresses themselves as gender fluid or non-binary could have two different digital verification services apps—one that shows them as female and the other as male, but both bearing the digital verification trust mark? That may not seem terribly common, but it is a possibility for which we need an answer.

Finally, the Government have argued that it is very unlikely that digital verification services will be used for applications such as single-sex services. The point was well made about a woman who wants a woman healthcare provider and health screening—by the way, that is also important for trans people to make sure that they are appropriately treated in services such as health. If the aim of the DVS is to provide trusted, interoperable, reusable digital identities that people can use to prove facts about themselves, is it not likely that this will be used in the services spoken about in the Supreme Court judgment and which advised should legitimately be kept as single sex and based on biological sex?

If the Government do not like these amendments from the noble Viscount, Lord Camrose, but they agree with their aim, I cannot honestly see why the Minister should object to enshrining them in more than the data accuracy principle, which, as I have said, has been, in the last decade, respected more in the breach than in the reality. I am not yet reassured that his assurances, as much as I respect his personal sincerity and integrity, are enough for us to rely on, as opposed to having something on the statute book.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I too will speak to Motions 32A and 52A. Just to follow on from the noble Baroness, Lady Ludford, I really appreciated that the Minister understood the concerns of those who moved these amendments. But, as the noble Baroness pointed out, reassurances have been given in this House, over many debates, that there was nothing to worry about in terms of confusion in relation to sex and gender. We have now ascertained via the Supreme Court that we needed some clarity and we have now got it. I do not want us to make the same mistake again.

I ask the Minister to clarify one thing he said in his opening remarks: that it would be overreach to ask the Secretary of State to declare biological sex as a material reality in all instances. I think that is what he said. I point out that biological sex is a material reality in all instances. Despite the comments of the noble Viscount, Lord Hailsham, in relation to his friend, it is not, to clarify, about passing or appearances; it is about biological material reality. In that instance, the Minister called on us to have kindness. Of course, we should all have kindness all the time, in every instance. However, nobody here is trying to be unkind; the intent is to clarify. I liked something the Minister said in the past when he stated that

“we must have a single version of the truth on this. There needs to be a way to verify it consistently and there need to be rules”.—[Official Report, 21/1/25; col. 1620.]

I agree. It is not about kindness or unkindness; it is about clarification.

In addition to what has already been argued, this surely has to be about trust. I can tell the House that quite a lot of people I have spoken to are rather distrustful of digital ID of any sort. They are already cynical and anxious about what is going on with this data collection. I do not raise that point other than to say that the one thing you would want in order to counter such worries is that this particular measure should be trustworthy. Yet, to quote an article by Joan Smith in UnHerd, we are talking about “an officially sanctioned app” that will allow the falsification of sex, even if that is not its intent.

It would be a form of self-ID that appears to be endorsed by a government TrustMark based on documents that could be based on gender identity rather than sex. A government TrustMark ought to be trustworthy. It is supposed to guarantee that the data it contains is accurate, and that includes sex.

Something important happened with the Supreme Court’s clarification, but, of course, this is an ongoing discussion of the implications it has on a wide range of public policy. I understand that, but I fear that there are times when people suggest we should leave the Supreme Court to some kind of relativistic mishmash. People keep saying to me, “What’s your reading of it?” It is not about a reading; it is a clarification of the law. If this Bill inadvertently adds to that relativised muddle or is used as an excuse to dismiss the Supreme Court, that would be an unintended consequence of what the Government are doing. It could be simply sorted out by the Government themselves.

--- Later in debate ---

[Lord Vallance of Balham (Lab)]

I thank the noble Viscount, Lord Camrose, for his Motion 32A and Amendments 32B and 32C, and Motion 52A and Amendments 52B and 52C. I reiterate that this Government have been clear that we accept the Supreme Court judgment on the meaning of sex for equalities legislation. However, as the noble Viscount, Lord Hailsham, says, it is critically important that the Government work through the effect of this ruling with care, sensitivity and in line with the law.

When it comes to public sector data, we must work through the impacts of this judgment properly. This would involve considering the scope of the judgment and the upcoming EHRC guidance. Critically, the Equality and Human Rights Commission has indicated that it will be updating its statutory code of practice for services, public functions and associations in light of this ruling, which will include some of the examples raised this afternoon, including by my noble friend Lady Hayter.

Ministers will consider the proposals once the EHRC has submitted its updated draft. It is right that the Government and, indeed, Parliament fully consider this guidance alongside the judgment itself before amending the way that public authorities collect, hold and otherwise process data—a point made by the noble Lord, Lord Clement-Jones, about the EHRC ruling.

I set out in my opening speech that this Government take the issue of data accuracy seriously. That is why, as I outlined, there are numerous existing work streams addressing the way in which sex and gender data are collected and otherwise processed across the public sector.

The digital verification services amendments that we have discussed today are misplaced, because the Bill does not alter the evidence and does not seek to alter the content of data used by digital verification services. Instead, the Bill enables people to do digitally what they can do physically. It is for organisations to consider what specific information they need to verify their circumstances, and how they go about doing that. Any inconsistency between what they can do digitally and what they can do physically would cause further confusion.

While this Government understand the intention behind the amendments, the concerns regarding the way in which public authorities process sex and gender data should be considered holistically, taking into account the effects of the Supreme Court ruling, the upcoming guidance from the equalities regulator and the specific requirements of public authorities. It is very unlikely that the digital verification services would be used for many of the cases specifically raised by or with many noble Lords. We expect DVS to be used primarily to prove things like one’s right to work or one’s age, address or professional educational qualifications.

The noble Viscount, Lord Hailsham, rightly highlights that the proposals have the potential to interfere with the right to respect for private and family life under the Human Rights Act by, in effect, indiscriminately and indirectly pushing public authorities to record sex as biological sex in cases where it is not necessary or proportionate in that particular circumstance. I raise the example that has been brought up several times, and again by the noble Baroness, Lady Fox: it is not relevant for the French passport officer to know your biological sex. That is not the purpose of the passport.

We acknowledge, however, that there are safeguards that address the concerns raised by noble Lords, including those of the noble Viscount, Lord Camrose, and the noble Lord, Lord Arbuthnot, regarding information being shared under Clause 45 but without presenting issues that could cut across existing or prospective legislation and guidance. I remind the House that the data accuracy principle is already included in law. The principle requires that only data accurate for the purpose for which it is held can be used. Again, there are workstreams looking at data use to answer the points raised by the noble Lord, Lord Arbuthnot, and indeed by the noble and learned Baroness, Lady Butler-Sloss.

The noble Baroness, Lady Ludford, asked why it was not accurate for 15 years and what that means about our reliance on this accuracy. I am afraid the fact is that it was accurate for 15 years because there was a muddle about what was being collected. There was no requirement to push for biological sex, but that is the case now. In response to the question of whether you could end up with two different sources of digital verification showing two different biological sexes, the answer is no.

[Baroness Ludford (LD)]

I beg the House’s indulgence and indeed the Minister’s for my interrupting him. The fact is that the Supreme Court has confirmed what was always the law: that the Equality Act meant biological sex. It is therefore not true that the data accuracy principle has ensured that the law has been followed for the past 15 years. I am sorry, I find that answer a little dismissive. I do not think we can rely on that sort of assurance, and I apologise for saying that.

[Lord Vallance of Balham (Lab)]

I apologise to the noble Baroness if she found that dismissive. My point was to try to say that there is a clear imperative under the new situation to have biological sex verified as biological sex. As a result—though not in all cases; I have given an example where it would be inappropriate to have that information—where you need that, it would not be possible, to answer her second question, to have two different sources of verification that gave two different biological sexes.

When information is shared through the gateway, it will be clear what that information represents, including in relation to sex and gender. In the light of the Supreme Court judgment, I further reassure Members by clarifying that, before the information gateway provision is commenced, the Government will carefully consider how and when biological sex may be relevant in the context of digital verification checks, and will take that into account when preparing the DVS code of practice.

I hope that these commitments and the assurance about the EHRC will provide noble Lords with reassurances that their concerns will indeed be taken into account. The amendments proposed do not fully take into account the fact that the Gender Recognition Act gives those with gender recognition certificates a level of privacy and control over who has access to information about their gender history. It is essential that Government have the chance to fully assess the Supreme Court judgment and update guidance accordingly. Given the need to consider this area holistically to ensure alignment with existing legislation and upcoming EHRC guidance, the breadth of work already being carried out on public data standards and data harmonisation and statistics, and the specific reassurance on compliance with the accuracy principle under the UK GDPR, I hope the noble Viscount feels comfortable not pressing his amendments.

I turn to Motion 43A from the noble Viscount, Lord Colville. Scientific research is one of the UK’s great strengths. We are home to four of the top 10 universities in the world and are in the top three in scientific outputs. Today’s researchers depend on data, and the UK data protection framework contains certain accommodations for processing personal data for purposes that meet the definition of scientific research in Clause 67. I understand the noble Viscount’s intention to avoid misuse of these research provisions, but the Royal Society has said the reasonableness test in the Bill provides adequate protection against that. The Bill actually tightens the current position, with the ICO being able to use the reasonableness test. “Reasonable” does not mean the subjective opinion of an uninformed person; it refers to an objective, fair observer with good judgment and knowledge of the relevant facts. Such tests are well known to UK courts.

The Bill does not extend and expand that definition. If something is not considered scientific research now, it will not be under the Bill. Similarly, the Bill does not provide any new permission for reusing data for other research purposes. Moreover, further safeguards are provided in Clause 86 and the wider UK GDPR, including the requirement that processing be fair. The Bill clarifies that all reuse of data must have a lawful basis, putting an end to previous confusion on the matter. Adding further specific conditions to the definition in law will be unnecessary and impose a disproportionate burden on researchers, who already say they spend too much time on red tape. The previous Government rightly started to tackle the pernicious creep of increased bureaucracy in research. We should not add more. At worst, this could have an unintended harmful consequence and exclude genuine researchers.

The Frascati manual provides useful guidance; it is not, however, a legal definition. Requiring researchers to start complying with a new legal standard, and one that might change, would undoubtedly create more committees and more bureaucracy—the very thing that Max Perutz argued against in his guidelines on great research.

My noble friend Lord Winston and the noble Lord, Lord Tarassenko, have given powerful examples. Let me give two examples of where the proposals might cause problems. Does requiring research to be creative hinder the essential task in science of testing or reproducing existing findings? Does the Frascati manual definition of “systematic”, which means “budgeted”, exclude unfunded, early research trying to get a foothold? Let us not dampen the UK’s world-leading research sector for a protection that is already included in the Bill.

I sympathise with the intentions of the noble Viscount, Lord Colville. I assure him that the Bill also contains a power to add to the existing safeguards and narrow access to the research provisions if necessary. The Government would not hesitate to use that power if it ever became necessary to tackle misuse.