Lord Vallance of Balham:

Moved by Lord Vallance of Balham

That this House do agree with the Commons in their Amendment 1.

1: Clause 4, page 6, line 25, after “recipient” insert “in relation to business data”

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.

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.

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.

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.

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

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 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 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.

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.

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.

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

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.

My Lords, I want briefly to add my voice to that of my noble friend Lord Colville, to say that in Committee I asked a number of times whether the science of conditioning—that is, the science of persuasive design that would extend the use of children—could be considered science under the current definition, and I never got an answer. So, although I am very sympathetic to the idea that science must be possible, whatever we do with the Bill, I would like to ensure that it is not, as the noble Viscount says, an excuse for any kind of commercial activity that could be perpetrated on the user.

My Lords, I sat through the Committee stage and did not speak, because I was so clear that the Amendment tabled by the noble Viscount, Lord Colville, was really inappropriate. Indeed, it was the speech by my noble friend Lord Vallance that made me feel that speaking was unnecessary. I regret that, because I should have pointed out something very important.

First, to come back to what the noble Baroness has just said, the definitions in the Bill are flawed to start with. Devising new applications of available knowledge is not the work of scientists; it is essentially the work of technologists—and there is a big difference between technology and science. Technology has all sorts of downsides that we do not expect. Science is simply knowledge and, as such, it does not have an ethical dimension. That has been stated by many distinguished philosophers in the past.

I suggest to noble Lords that every invention and innovation that we make has a downside that we do not expect. I would challenge the noble Viscount, Lord Colville. I have sat on a scientific committee with him and we have enjoyed each other’s company, but I would argue that there is not a single case where he could argue that there has not been an unexpected downside—as there is with every scientific invention. That, essentially, is why this is a flawed problem.

There are three problems facing humanity and the world at the moment. One, clearly, is nuclear war; one, clearly, is climate change; and perhaps the most important one is the risk of antibiotic resistance. It turns out that all these risks were completely unseen when those technologies were started. Marie Curie, working on pitchblende and radium, had no idea that the X-rays she was producing would be dangerous to her and would, unfortunately, result in her death as a result of cancer. She certainly did not recognise that there might be such a thing as nuclear explosions.

When it comes to, for example, climate change, it is obvious that we would not want to avoid having had the Industrial Revolution and all the things we got from it, just as we would not want to avoid having X-rays. But we must understand that the control has to come later.

Lastly, the most important thing for me is the possibility that infection is one of the greatest problems that humanity faces on earth at the moment. The invention of antibiotics has actually made that worse, because we now have a rising number of infections that are due to resistance. Therefore, I beg the noble Viscount not to press his amendment. I believe that it is absolutely well-meaning, and I understand what he is trying to say, but I hope that the Opposition, when they listen to this, will consider at least abstaining from voting on it, because the risk is that it might bring the House of Lords into disrepute as it stands.

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.

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.

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.

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.

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.

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.

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.

Motion on Amendment 1 agreed.