Data (Use and Access) Bill [HL]

Lord Clement-Jones Excerpts

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

[Lord Tarassenko (CB)]

My Lords, I am authorised to speak on Motion 43A, as someone with regular day-to-day experience of scientific research. Since I started my PhD in 1981, I have had the privilege of spending more than half my working life doing scientific research in the UK—the last 20 years working with very sensitive patient data. Most of that research has been carried out in an academic setting, but some of it has been in collaboration with medtech, AI and pharmaceutical companies.

This research has required me to become familiar with many three-letter and four-letter acronyms. Noble Lords will know about DBS, but they might not know about RSO, TRO, HRA, LREC, MREC, CAG, and IRAS, to name just a few. I have spent hundreds of hours working with clinical colleagues to fill in integrated research application system—IRAS—forms. IRAS is used to apply for Health Research Authority—HRA—approval for research projects involving the NHS, social care or the criminal justice system. I have appeared before not only medical research ethics committees, or MRECs, which test whether a research protocol is scientifically valid and ethical, but local research ethics committees, or LRECs, which consider the suitability of individual researchers and local issues.

I was involved in a research project which reused data acquired from patients on a Covid isolation ward during the first two waves of the pandemic. That research project sought to understand how nurses interpreted continuous data from the clinical-grade wearables we used to monitor these high-risk patients during Covid. It took our research team more than 18 months to obtain the relevant permissions to reuse the data for our proposed analysis. Our application was reviewed by the Confidentiality Advisory Group—CAG—which provides independent expert advice on the use of confidential patient information without consent for research and non-research purposes. CAG already considers whether accessing the confidential data is justified by the public interest. Its advice is then used by the HRA and the Secretary of State for Health and Social Care to decide whether to grant access to the confidential data.

The existing provisions in this country to allow access to data for research purposes are stringent, and it is entirely right that they should be. The UK is respected the world over for the checks and balances of its research governance. The relevant safeguards already exist in the current legislation. Adding a further public interest test will only increase the amount of bureaucracy that will inevitably be introduced by the research services offices, or RSOs, and the translational research offices, or TROs, of our universities, which are very good at doing this.

The extra burden will fall on the researchers themselves, and some researchers may decide to concentrate their available time and energy elsewhere. This amendment, I am afraid, will have the unintended consequence of having a negative impact on research in this country, so I cannot support it.

[Lord Clement-Jones (LD)]

My Lords, an onlooker might be forgiven for not perceiving a common theme in this group of amendments, but I thank the Minister for his introduction and the noble Viscounts for introducing their amendments so clearly.

I acknowledge that Motion 32A and Amendments 32B and 32C and Motion 52A and Amendments 52B and 52C from the noble Viscount, Lord Camrose, are considerably less prescriptive than the Spencer amendment in the House of Commons to introduce new Clause 21, which seemed to require public authorities to comb through every record to rectify data, went significantly further than the findings of the Supreme Court judgment, and potentially failed to account for the privacy afforded to GRC holders under the Gender Recognition Act. However, the Liberal Democrats will abstain from votes on the noble Viscount’s amendments for several key reasons.

Our primary reason is the need to allow time for the EHRC’s guidance to be finalised. I thought the Minister made his case there. The EHRC is currently updating its code of practice, as we have heard, to reflect the implications of the Supreme Court judgment on the meaning of sex in the Equality Act, with the aim of providing it to the Government by the end of June. This guidance, as I understand it, is intended specifically to support service providers, public bodies and others in understanding their duties under the Equality Act and putting them into practice in the light of the judgment. The EHRC is undertaking a public consultation to understand how the practical implications can best be reflected. These amendments, in our view, are an attempt to jump the gun on, second-guess or at the least pre-empt the EHRC’s code of practice.

On these Benches, we believe that any necessary changes or clarifications regarding data standards should be informed by the official guidance and implemented consistently in a coherent and workable manner. We should allow time for the EHRC’s guidance to be finalised, ensuring that any necessary changes or clarifications regarding data standards are informed by its advice and implemented consistently across public authorities in a coherent and workable manner. We have concerns about workability and clarity. Although the amendments proposed by the noble Viscount, Lord Camrose, are less prescriptive than previous similar proposals in the Commons tabled by Dr Spencer, we have concerns about their practical implementation. Questions arise about how public authorities would reliably ascertain biological sex if someone has a gender recognition certificate and has updated their birth certificate. I have long supported same-sex wards in the NHS, but I do not believe that these amendments are helpful in pursuing clarity following the Supreme Court judgment. We heard what the Minister had to say about passports.

I welcome the clarity provided by the Supreme Court judgment, but there are clearly implications, both practical and legal, to be worked out, such as those mentioned by the noble Viscount, Lord Hailsham. I thought he put his finger on many of those issues. I trust that the EHRC will deliver the right result. I agree that data needs to be accurate, and I welcome the Sullivan report, as did my noble friend. In summary, we will be abstaining. We believe that the EHRC process needs to conclude and provide comprehensive guidance, while also reflecting concerns about the workability and appropriateness of specific legislative interventions on data standards at this time.

I move on to Amendment 43B, tabled by the noble Viscount, Lord Colville. This amendment may not reinstate the precise wording

“conducted in the public interest”

that we previously inserted in this House, but it would introduce safeguards that seek to address the same fundamental concerns articulated during our debate on Report. It does two important things.

First, it provides a definition of “scientific research”, clarifying it as

“creative and systematic work undertaken in order to increase the stock of knowledge”.

This directly addresses the concerns raised on Report that the line between product development and scientific research is often blurred, with developers sometimes positing efforts to increase model capabilities or study risks as scientific research. Having a clear definition helps to distinguish genuine research from purely commercial activity cloaked as such.

Secondly, and critically, Amendment 43B would require:

“To meet the reasonableness test”


already present in the Bill,

“the activity being described as scientific research must be conducted according to appropriate ethical, legal and professional frameworks, obligations and standards”.

This requirement seeks to embed within the reasonableness test the principles that underpinned our arguments for the public interest requirement on Report and is the same as the amendment put forward by the chair of the Science, Innovation and Technology Select Committee, Chi Onwurah MP, which ties the definition to the definition in the OECD’s Frascati Manual: Guidelines for Collecting and Reporting Data on Research and Experimental Development:

“creative and systematic work undertaken in order to increase the stock of knowledge—including knowledge of humankind, culture and society—and to devise new applications of available knowledge”.

The Frascati framework is used worldwide by Governments, universities and research institutions to report R&D statistics, inform science policy and underpin R&D tax credit regimes, and it serves as a common language and reference point for international comparisons and policy decisions related to scientific research and innovation. These frameworks, obligations and standards are important because they serve the very purposes we previously identified for the public interest test: ensuring societal benefit, building public trust, preventing misuse for commercial ends, addressing harmful applications, and alignment with standards.

Amendment 43B in the name of the noble Viscount, Lord Colville, is a thoughtful and necessary counter-proposal. It is Parliament’s opportunity to insist that the principles of public benefit, trust and responsible conduct, rooted in established frameworks, must remain central to the definition of scientific research that benefits from data re-use exceptions.

I heard what the noble Lord, Lord Winston, had to say in his very powerful speech, but I cannot see how the amendment from the noble Viscount, Lord Colville, cuts across all the things that he wants to see in the outcomes of research.

[Lord Winston (Lab)]

As the noble Lord has mentioned my name, I simply ask him this question: does he recall the situation only some 45 years ago when there was massive public outcry about in vitro fertilisation, when there were overwhelming votes against in vitro fertilisation in both Houses of Parliament on two occasions, and when, finally, a Private Member’s Bill was brought, which would have abolished IVF in this country? Had that happened, of course, an amendment such as this would have prevented the research happening in England and would have made a colossal difference not only to our knowledge of embryo growth, but our knowledge of development, ageing, the development of cancer and a whole range of things that we never expected from human embryology. I beg the noble Lord to consider that.

[Lord Clement-Jones (LD)]

My Lords, I have had a misspent not-so-youth over the past 50 years. As a lawyer, when I read the wording in the amendment, I cannot see the outcome that he is suggesting. This wording does not cut across anything that he has had to say. I genuinely believe that. I understand how genuine he is in his belief that this is a threat, but I do not believe this wording is such a threat.

I also understand entirely what the noble Lord, Lord Tarassenko, had to say, but an awful lot of that was about the frustration and some of the controls over health data. That does not apply in many other areas of scientific research. The Frascati formula is universal and well accepted. The noble Viscount made an extremely good case; we should be supporting him.

[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.

--- Later in debate ---

[Lord Freyberg (CB)]

My Lords, I support Motion 49A from the noble Baroness, Lady Kidron. I will also address claims that we have heard repeatedly in these debates: that transparency for AI data is technically unfeasible. This claim, forcefully pushed by technology giants such as Google, is not only unsupported by evidence but deliberately misleading.

As someone with a long-standing background in the visual arts, and as a member of DACS—the Design and Artists Copyright Society—I have witnessed first-hand how creators’ works are being exploited without consent or compensation. I have listened carefully to the concerns expressed by the noble Lord, Lord Tarassenko, in both his email to colleagues today and the letter from entrepreneurs to the Secretary of State. Although I deeply respect their expertise and commitment to innovation, I must firmly reject their assessment, which echoes the talking points of trillion-dollar tech corporations.

The claims by tech companies that transparency requirements are technically unfeasible have been thoroughly debunked. The LAION dataset already meticulously documents over 5 billion images, with granular detail. Companies operate crawler services on this dataset to identify images belonging to specific rights holders. This irrefutably demonstrates that transparency at scale is not only possible but already practised when it suits corporate interests.

Let us be clear about what is happening: AI companies are systematically ingesting billions of copyrighted works without permission or payment, then claiming it would be too difficult to tell creators which works have been taken. This is theft on an industrial scale, dressed up as inevitable technological progress.

The claim from the noble Lord, Lord Tarassenko, that these amendments would damage UK AI start-ups while sparing US technology giants is entirely backwards. Transparency would actually level the playing field by benefiting innovative British companies while preventing larger firms exploiting creative works without permission. I must respectfully suggest that concerns about potential harm to AI start-ups should be balanced against the devastating impact on our creative industries, thousands of small businesses and individual creators whose livelihoods depend on proper recognition and compensation for their work. Their continued viability depends fundamentally on protecting intellectual property rights. Without transparency, how can creators even begin to enforce these rights? The question answers itself.

This is not about choosing between technology and creativity; it is about ensuring that both sectors can thrive through fair collaboration based on consent and compensation. Transparency is not an obstacle to innovation; it is the foundation on which responsible, sustainable innovation is built.

Google’s preferred approach would reverse the fundamental basis of UK copyright law by placing an unreasonable burden on rights holders to opt out of having their work stolen. This approach is unworkable and would, effectively, legalise mass copyright theft to benefit primarily American technology corporations.

Rather than waiting for a consultation outcome that may take years, while creative works continue to be misappropriated, Motion 49A offers a practical step forward that would benefit both sectors while upholding existing law. I urge the House to support it.

[Lord Clement-Jones (LD)]

My Lords, it has been a privilege to listen to today’s debate. The noble Baroness, Lady Kidron, really has opened the floodgates to expressions of support for human creativity. I thank her for tabling her Motion. I also thank the Minister for setting out the Government’s position and their support for the creative industries.

I suppose I straddle the world of AI and creativity as much as anybody in this House. I co-founded the All-Party Group on Artificial Intelligence and I have been a member of the All-Party Group on Intellectual Property for many years. That is reflected in my interests, both as an advisor to DLA Piper on AI policy and regulation, and as the newly appointed chair of the Authors’ Licensing and Collecting Society. I declare those interests, which are more than merely formal.

The subject matter of the amendments in this group is of profound importance for the future of our creative industries and the development of AI in the UK: the critical intersection of AI training and copyright law, and, specifically, the urgent need for transparency. As the noble Baroness, Lady Kidron, described, the rapid development of AI, particularly large language models, relies heavily on vast volumes of data for training. This has brought into sharp focus the way copyright law applies to such activity. It was impossible to miss the letter over the weekend from 400 really important creatives, and media and creative business leaders urging support for her Motion 49A. Rights holders, from musicians and authors to journalists and visual artists, are rightly concerned about the use of their copyrighted material to train AI models, often without permission or remuneration, as we have heard. They seek greater control over their content and remuneration when it is used for this purpose, alongside greater transparency.

Like others, I pay tribute to the noble Baroness, Lady Kidron, who has brilliantly championed the cause of creators and the creative industries throughout the passage of this Bill in her tabling of a series of crucial amendments. Her original amendments on Report, passed in this House but deleted by the Government in the Commons and then retabled in the Commons on Report by my honourable friends, aimed to make existing UK copyright law enforceable in the age of generative AI. The core argument behind Amendment 49B, which encapsulates the essence of the previous amendments, is that innovation in the AI field should not come at the expense of the individuals and industry creating original content.

The central plank of the noble Baroness’s proposals, and one these Benches strongly support, is the requirement for transparency from AI developers regarding the copyrighted material used in their training data. Her Amendment 49B specifically requires the Secretary of State to make regulations setting out strict transparency requirements for web crawlers and general-purpose AI models. This would include disclosing the identity and purpose of the crawlers used, identifying their owners and, crucially, keeping records of where and when copyrighted material is gathered. This transparency is vital for ensuring accountability and enabling copyright holders to identify potential infringements and enforce their rights.

The Minister described the process in the consultation on AI and copyright, published last December. That consultation proposed a text and data mining exception that would allow AI developers to train on material unless the rights holder expressly reserved their rights or opted out. The arguments against this proposed opt-out mechanism are compelling; they have been made by many noble Lords today and have been voiced by many outside, as we have heard. This mechanism shifts the burden on to creators to police the use of their work and actively opt out, placing an undue responsibility on them.

This approach undermines the fundamental principles of copyright, effectively rewarding the widespread harvesting or scraping of copyrighted material that has occurred without permission or fair remuneration. The Government’s proposed text and data-mining exception, which it appears that they are no longer proposing—as the noble Lord, Lord Brennan, asked, perhaps the Minister can clarify the Government’s position and confirm that that is indeed the case—risks harming creative sectors for minimal gain to a small group of global tech companies and could erode public trust in the AI sector. As the noble Baroness observed, this approach is selling the creative industries down the river. Voluntary measures for transparency proposed by the Government are insufficient. Clear legal obligations are needed.

--- Later in debate ---

[Baroness Kidron (CB)]

My Lords, the noble Baroness, Lady Chakrabarti, has said everything I was going to say and more and better, so I want just to pay tribute to the noble Baroness, Lady Owen of Alderley Edge, and to say that I too have witnessed her forensic fight over the last few months. I hugely admire her for it, and I congratulate her on getting this far. I absolutely share all the concerns that both noble Baronesses have expressed. Just in case I do not have the opportunity again, I congratulate the noble Baroness on her extraordinary work and campaigning.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the three noble Baronesses, and I too congratulate the noble Baroness, Lady Owen, on her magnificent and successful campaign to outlaw the making and requesting of non-consensual images, first with her Private Member’s Bill and then with amendments to this Bill. She has fought it with huge skill and determination, and, rightly, she has pushed it to the wire in wanting the most robust offence and tightest defences possible. I thank the Minister for his flexibility that he has shown so far—with the emphasis on “so far”.

The amendments that the noble Baroness has put forward represent a compromise, given the strong and rather extraordinary opinion of the Attorney-General that the defence of “reasonable excuse” is needed for the defence to be compliant with the ECHR and that, therefore, the whole Bill risks being non-compliant if that is not contained in the defence for these offences. That is the equivalent of a legal brick wall, despite an excellent opinion from Professor Clare McGlynn, which in my view demolished the Attorney-General’s case, which seems to be based on ensuring the ability of big tech companies to red team their models on images used without consent. That is a rather peculiar basis. Why cannot the big tech companies use images with consent? They would then be red teaming in a rather different and more compliant way.