My Lords, I will speak to some of the amendments made in the other place, starting with Amendments 1 to 31. These will ensure that smart data schemes can function optimally and that Part 1 is as clear as possible. Similarly, Amendments 35 to 42 from the other place reflect discussions on the national underground asset register with the devolved Governments. Finally, Amendments 70 to 79 make necessary consequential updates to the final provisions of the Bill and some updates to Schedules 11 and 15.
I will now speak to the amendments tabled by noble Lords, starting with those relating to sex data. Motion 32A disagrees with the amendment to remove Clause 28(3) and (4), and instead proposes changes to the initial drafting of those subsections. These would require the Secretary of State, when preparing the trust framework, to assess whether the 15 specified public authorities can reliably ascertain the data they collect, record and share. Amendment 32B limits this assessment to sex data, as defined through Amendment 32C; that definition limits sex to biological sex only and provides a definition of acquired gender.
It is also relevant to speak now to Motion 52A, which disagrees with the amendment to remove Clause 140 and, instead, suggests changes to the drafting. Clause 140, as amended by Amendment 52B, seeks to, through a regulation-making power, give the Secretary of State the ability to define sex as being only biological sex in certain areas or across public sector data processing more widely. Let me be clear that this Government accept the recent Supreme Court judgment on the definition of sex for the purposes of equality legislation. We need to work through the effects of this ruling holistically and with care, sensitivity and—dare I say it—kindness. In line with the law, we need to take care not to inappropriately extend its reach. This is not best done by giving the Secretary of State the power to define sex as biological in all cases through secondary legislation without appropriate scrutiny, given the potential impact on people’s human rights, privacy and dignity, and the potential to create legal uncertainty. Likewise, giving the Secretary of State a role in reviewing how other public authorities process sex data in all circumstances based on that definition would be inappropriate and disproportionate, and I note that the Supreme Court’s ruling relates specifically to the meaning of sex in equalities legislation.
My Lords, I first thank the Minister for his—as ever—clear and compelling remarks. I thank all noble Lords who have been working in a collegiate, collaborative fashion to find a way forward on the few but important remaining points of disagreement with the Government.
Before I come to the issue of accurate recording of personal data, I also thank the Minister, the noble Baroness, Lady Jones, for tabling the government amendments on the national underground asset register and her constructive engagement throughout the progress of the Bill.
As noble Lords will recall, I set out our case for stronger statutory measures to require the Secretary of State to provide guidance to relevant stakeholders on the cybersecurity measures that should be in place before they receive information from the national underground asset register. I am of course delighted that the Government have responded to the arguments that we and others made and have now tabled their own version of my amendment which would require the Secretary of State to provide guidance on the security of this data. We are happy to support them in that.
I turn to Motions 32A and 52A standing in my name, which seek to ensure that data is recorded accurately. They amend the original amendment, which my noble friends Lord Lucas and Lord Arbuthnot took through your Lordships’ House. My noble friend Lord Lucas is sadly unable to attend the House today, but I am delighted to bring these Motions forward from the Opposition Front Bench. In the other place, the Conservative Front Bench tabled new Clause 21, which would, we feel, have delivered a conclusive resolution to the problem. Sadly, the Government resisted that amendment, and we are now limited by the scope of the amendments of my noble friend Lord Lucas, so we were unable to retable the, in my view, excellent amendment in your Lordships’ House.
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As several noble Lords said when we discussed this issue on Report, we absolutely must have clarity on the recording of sex and gender, and I was pleased to hear the Minister attest to this position as well. The amendments that I have tabled build on the amendment of my noble friend Lord Lucas in the light of the recent judgment of the Supreme Court. It is now very clear that we need accurate sex data recorded for a whole host of reasons, including for medical research and the protection of same-sex spaces. There is no reason why gender may not also be recorded in a separate field, and it is important that gender data is accurate too.
The Minister was kind enough to meet me this morning to set out his case that the Bill as it stands addresses our concerns. Even if it does so going forward, the Sullivan report warns us that the data as currently held by public bodies may not be reliable. In fact, it is almost certainly not reliable in many cases. Whatever the rules imposed on DBS, it may be passing on inaccuracies already present in the sex and gender data and, as was observed in an earlier debate, when it comes to databases, it is a case of garbage in, garbage out.
I know that noble Lords on the Benches to my left were satisfied by the Minister’s previous assurances that work is already ongoing in this area, but today I think that we have the opportunity to take a step forward on this. I hope that all noble Lords will take that opportunity to deliver the accurate data recording that we need, not least to protect same-sex spaces.
Finally, I turn to Motion 43A from the noble Viscount, Lord Colville. He has worked tirelessly on this issue. We understand the argument that he is making and we supported his amendment on Report. The amendment that he has brought forward today is an altered version which is intended to tighten up this definition. I of course appreciate and recognise the Government’s concerns to avoid burdening researchers with unnecessary admin. I am not yet satisfied that we have the right balance here between regulatory burden and public good. We still feel that it is crucial that Ministers resolve this, and we will therefore support the noble Viscount, Lord Colville, in the Lobbies if he chooses to test the opinion of the House. Meanwhile, I intend to test the opinion of the House when Motions 32A and 52A are called.
My Lords, the Minister is right that it is essential that data collected needs to be accurate and that that applies to data on sex as well as on gender. He is also right that the passport does not contain reliable data on sex, and I am grateful to him for making that clear. I am also grateful to him for the discussions that he has had with me and for the discussion that the Secretary of State had with Sex Matters and me, but what is the solution to this? In the absence of any reliable document, how is a care home to ensure that a person who is to provide intimate care for an elderly woman, who has understandably demanded that such care be provided by a woman, will actually be provided by a woman?
In the absence of anything else, I suspect a care home will have to fall back on the passport, which, as we have all agreed, is unreliable. My noble friend’s amendment goes some way towards answering this, and I shall support it. It may have flaws. The Minister said in one of our meetings that it would invalidate our existing passports. I am not sure about that but, if it is right, can the Minister propose a minor amendment to my noble friend’s amendment to sort out that problem?
My Lords, I too will speak to Motion 32A. I thank my noble friend the Minister for his confirmation of the Government’s welcome of the Supreme Court ruling and his welcome of the Sullivan report. I also very much welcome the words that he has used today and thank him for the discussions that we have been able to have.
Can he confirm that where the Equality Act allows for a women-only space, any digital IT system used for that purpose would refer to biological sex as the relevant information? With regard to public authorities, I assume that organisations such as Sport England and the GMC are counted as public authorities because they are statutory. At the moment the GMC does not record the biological sex of doctors, only the gender. When that also goes digital, will it be confined to biological sex so that, again, patients can know the sex of their physician, assuming that it will be digital? I think that the Minister understands the questions I am posing and that his wording does give that reassurance, but any clarity would be welcome.
My Lords, I stand in support of my Motion 43A. I welcome so much of this Bill. I want this country to be a champion of technology and hope that it becomes a tech powerhouse, attracting hundreds of millions of pounds-worth of investment in the development of AI. I understand the concerns expressed by the Minister, but I am still pressing ahead with this amendment because I want the people of this country to have control of their data and how it is used.
This amendment is a push-back against the way the AI companies have been abusing the use of people’s data in training their AI models. Last year, Meta reused data from Instagram users without their consent to train up its Llama AI model. Once this was discovered, there was a huge outcry from the owners of the data and an appeal to the ICO. As a result, Meta stopped the processing and the ICO said,
“it is crucial that the public can trust that their privacy rights will be respected from the outset”.
I want to make sure that when the Bill becomes law, it reassures the people of this country that they can trust the new technology. The battle to stop the abuse of data is a central concern of my indomitable noble friend Lady Kidron, who is sitting beside me and whose amendment is in the next group. It responds to the theft of copyright belonging to millions of creatives, including authors and artists, by AI companies. As it stands, Clause 67 gives a powerful exemption, allowing AI companies to reuse data without consent if they can show that their work aligns with the definition of “scientific research” set out in the Bill. I fear that this definition is so widely drawn that it will allow AI models to reuse data without consent, claiming that they are carrying out scientific research when in fact they are using it for product development and their own profit.
My Lords, I am a latecomer to this debate; I have not participated heretofore. I am doing so only because of conversations I had over the weekend. They related to the amendment from my noble friend under Motion 32A. I am not going to oppose my noble friend’s amendment—it may well be right—but I do want to express my anxieties because they were anxieties expressed by my friend who came to see me.
On the judgment of the Supreme Court, I am pretty much in favour of it. I think it was wholly right and I am very glad that the Government are accepting its finality, but it raises problems which I do not think have yet been fully considered, and that is what makes me reluctant to support my noble friend. The friend who came to see me is someone who I have known for a number of years and was born a male. In fact, she married and had a child, and she then transitioned—and transitioned fully—to the female gender and she is fully certificated. We discussed the implications of the judgement for her, and although I strongly support the judgment of the Supreme Court, a number of the points that she made were very troubling, most particularly as regards people who have not fully transitioned and how they are going to be dealt with; for example, in prisons, in hospital wards and so forth.
She then came to a very specific point—which has been touched on by a number of your Lordships—regarding passports. This is a woman whom I have known for 10 or so years. In every material respect, she passes as a woman and that is what I have always treated her as being; she is a friend of mine. Her passport at the moment shows “female”, but where there is the requirement “sex”, she is deeply concerned that the passport may have to be altered to state “male” because that is her natal gender. She raises the question very clearly as to what happens when she goes to immigration control or passport control, either in this country or somewhere else, where there will be a manifest divergence of appearance. On the one hand, there is the passport, which says that she is male; on the other hand, there is what she appears for all purposes. The point that I took away from that is that there are still lots of things that we are going to have to address.
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.
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The driver behind these amendments has been the importance of sex data being accurate when processed by public authorities. I strongly agree with that aim: accurate data is essential. This Government take data accuracy—including the existing legislation that requires personal data to be accurate—and data standards seriously. That is why we are addressing the question of sex information in public sector data. First, the EHRC is updating its statutory code of practice to support service providers in light of the Supreme Court judgment. Secondly, the Data Standards Authority is developing data standards on the monitoring of diversity information, including sex and gender data, and the effect of the Supreme Court judgment will be considered as part of that work.
Thirdly, the Office for Statistics Regulation published updated guidance on collecting and reporting data and statistics about sex and gender identity data last year. Fourthly, the Office for National Statistics published a work plan in December 2024 for developing harmonised standards on data more generally. Finally, the department is currently considering the implementation of the Sullivan review, published this year, which I welcome.
On digital verification services, I reassure noble Lords that these measures do not change the evidence that individuals rely on to prove things about themselves. The measures simply enable that to be done digitally. This Government are clear that data must be accurate for the purpose for which it is being used and must not be misleading. It should be clear to digital verification services what the information public authorities are sharing with them means. I will give an important example. If an organisation needs to know a person’s biological sex, this Government are clear that a check cannot be made against passport data, as it does not capture biological sex. DVS could only verify biological sex using data that records that attribute specifically, not data that records sex or gender more widely.
I know this is a concern of the noble Lord, Lord Arbuthnot, and I hope this provides some reassurance. The data accuracy principle of GDPR is part of existing law. That includes where data is misleading—this is a point I will return to. I hope that noble Lords find this commitment reassuring and, as such, will agree with Commons Amendment 32.
Motion 34A on Amendments 34B and 34C address the security of the national underground asset register. Security has always been at the heart of the national underground asset register. We have therefore listened to the well-thought-through concerns that prompted the amendment previously tabled by the noble Viscount, Lord Camrose, regarding cybersecurity. Following consideration, the Government are instead proposing an amendment we have drafted with support of colleagues in the security services. We believe this addresses the intention of ensuring the security of the national underground asset register data, with three key improvements.
First, it broadens the scope from cybersecurity only to the general security of information kept in or obtained from the national underground asset register. This will ensure that front-end users have guidance on a range of measures for security good practice—for example, personnel vetting, which should be considered for implementation—while avoiding the need to publish NUAR-specific cybersecurity features that should not be in the public domain. Secondly, it specifies the audience for this guidance; namely, users accessing NUAR. Finally, it broadens the scope of the amendment to include Northern Ireland alongside England and Wales, consistent with the NUAR measures overall. Clearly, it remains the case that access to NUAR data can be approved for purposes only by eligible users, with all access controlled and auditable. As such, I hope that noble Lords will be content to support government Motion 34A and Amendments 34B and 34C.
Commons Amendment 43, made in the other place, on scientific research removes the public interest test inserted in the definition of scientific research by the noble Viscount, Lord Colville. While recognising the concern the noble Lord raises, I want to be clear that anything that does not count as scientific research now would not do so under the Bill. Indeed, we have tightened the requirement and added a reasonableness test. The Bill contains strong safeguards. Adding precise definitions in the Bill would not strengthen these protections but impose a significant, new legal obligation on our research community at a time when, in line with the good work of the previous Government, we are trying to reduce bureaucracy for researchers, not increase it with new processes. The test proposed will lead to burgeoning bureaucracy and damage our world-leading research. This disproportionate step would chill basic and curiosity-driven research, and is not one we can support.
I beg to move that the House agree with the Commons in their Amendment 1. I have spoken to the other amendments.
I thank the Ada Lovelace Institute for its constant support throughout the lengthy progress of this Bill. I expressed my concern in Committee and on Report. Chi Onwurah, the very respected chair of the Science, Innovation and Technology Committee in the other place, tabled a similar amendment. However, despite meetings with Ministers, they have offered nothing to assuage our concerns, which has forced me to push this amendment at this stage.
Proposed new paragraph 2A inserted by this amendment would tighten the definition of what counts as scientific research. It is taken from the Frascati manual, developed by the OECD in order to compare R&D efforts made by different companies and identify what key features underpin them. The Government support the Frascati definition. In Committee, the Minister said the research test set out in the Bill “will not operate alone”, and will
“be in the context of the Frascati definition and the ICO’s guidance”.—[Official Report, 21/1/25; col. 1637.]
He said that the Frascati definitions are merely guidance and that codification would bring burdens on scientific researchers, but this is not a new requirement: it is simply a codification of an existing standard set up by the ICO.
The central feature of this part of the amendment is that scientific research should increase the stock of human knowledge. The Minister has told your Lordships that not all scientific research will be new knowledge, that scientific research is often refuted or confirms previous findings, and that some scientific research will fail. But if there is refutation or confirmation of an experiment, that is an extension of human knowledge. Even if research fails, the researcher will know that the experiment does not work, and that is new knowledge. The requirement for scientific research to increase the stock of knowledge is a sensible precaution to preserve our data from abuse, and it will weed out the tech companies piggybacking on the clause for their own profit.
The purpose of this amendment is not just to tighten the definition. It is also to make sure that researchers have to consider it when they start to deploy the exemption for the reuse of data. The Minister has said it will lead to undue burden on scientists and stop research going ahead, but this definition is already being used by the ICO. The problem for a person whose data is being abused is that at the moment, if they want to appeal against its use without consent, they have to go to the ICO, which then has to apply the Frascati definition.
The ICO’s latest statistics show that only 12% of data protection complaints are dealt with within 90 days, compared with the target of 80%. Surely that means it is too late for the appeal against reuse of data without consent. The data will already have been absorbed into the AI training model and, as we have been continually told, it is hard for AI researchers to identify data once it is included in part of the model.
Proposed new paragraph 2A inserted by this amendment would stop this happening. By our putting a definition in the Bill, the AI researchers would have to consider it before reusing the data for their model, therefore saving data subjects having to appeal to the ICO if they are concerned about abuse.
Proposed new paragraph 2B inserted by this amendment responds to the Government’s claim that the “reasonably described” test in this clause is a tightening of the definition of scientific research. Over 14 of our leading law companies have looked at the Government’s test as set out in the Bill and described it variously as loosening, expanding or broadening the definition. However, Clause 67 asks the question whether the research can be reasonably described as scientific. The ICO or the courts will have to consider whether it is irrational to call this scientific research, but it is very hard to prove irrationality; it is a high bar.
I hope noble Lords will agree that the use of the usual reasonableness test asks, “Would a reasonable person conducting scientific research perform this activity in this manner?”. This test evaluates actual conduct against an objective standard of what constitutes proper scientific research.
The amendment seeks to realise what is already a requirement: that such research be conducted in line with standards based on the UK Research and Innovation Code of Practice for Research. It would ensure transparency for the use of scientific research. I am sure that during the course of the debate we will hear from scientists who will say that this debate will stifle research and stop new researchers undertaking work. However, this requirement is minimal, and the information required is that which researchers should already have to hand.
What I ask your Lordships to bear in mind when voting is that this amendment would give transparency into how people’s data is being reused. The new tests laid out in my amendment would be a powerful weapon in the fight against the abuse of people’s data. I want the new technologies to be successful, but they will be successful only if they have the trust of the people of the country. If people think that the Government have caved in to tech companies and allowed them to pillage our data for their own financial gain rather than for the progress of human knowledge, most will be outraged. I ask the Minister to assuage these fears and ensure that the Bill provides data in the people’s interests. Meanwhile, I will ask the opinion of the House at the end of this debate.
My suggestion to your Lordships’ House is that we should set up a Select Committee in due time—and this House is well versed to do that—to consider what the implications of the Supreme Court judgment are across a broad spectrum of consideration. Therefore, returning to Motion 32A, if my noble friend will forgive me, I am not going to support him today, not because I think he is wrong but because I think it is premature to come to statutory interventions when there is still a lot to be considered. I would be fearful that, if this House accepted my noble friend’s amendments—and they may be right—they would be treated as a precedent that it is at least conceivable we would come to regret.