My Lords, once more into the trenches we go before Easter. In moving Amendment 53, I will also speak to Amendments 54, 55, 57, 69, 70, 71 and 72 and the Clause 14 stand part notice.
The Bill contains a number of wide delegated powers, giving the Secretary of State the power to amend the UK GDPR via statutory instrument. The Government have said that the UK GDPR’s key elements remain sound and that they want to continue to offer a high level of protection for the public’s data, but that is no guarantee against significant reforms being brought in through a process that eludes full parliamentary scrutiny through primary legislation. Proposed changes to the UK GDPR should be contained in the Bill, where they can be debated and scrutinised properly via the primary legislation process. As it stands, key provisions of the UK GDPR can subsequently be amended via statutory instrument, which, in this case, is an inappropriate legislative process that affords much less scrutiny and debate, if debates are held at all.
The UK GDPR treats a solely automated decision as one without “meaningful human involvement”. The public are protected from being subject to solely automated decision-making where the decision has a legal or “similarly significant effect”. Clause 14(1) inserts new Article 22D(1) into the UK GDPR, which allows the Secretary of State to make regulations that deem a decision to have involved “meaningful human involvement”, even if there was no active review by a human decision-maker. New Article 22D(2) similarly allows the Secretary of State to make regulations to determine whether a decision made had a “similarly significant effect” to a legal effect. For example, in summer 2021 there was the A-level algorithm grading scandal. If something like that were to reoccur, under this new power a Minister could lay regulations stating that the decision to use an algorithm in grading A-levels was not a decision with a “similarly significant effect”.
New Article 22D(4) also allows the Secretary of State to add or remove, via regulations, any of the listed safeguards for automated decision-making. If the Government wish to amend or remove safeguards on automated decision-making, that should also be specified in the Bill and not left to delegated legislation. Amendments 53 to 55 and 69 to 72 would limit the Secretary of State’s power, so that they may add safeguards but cannot vary or remove those in the new Article 22D, as they stand, when the legislation comes into force.
If the clause is to be retained, we support Amendment 59A in the name of the noble Lord, Lord Holmes, which requires the Information Commissioner’s Office to develop guidance on the interpretation of the safeguards in new Article 22C and on important terms such as “similarly significant effect” and “meaningful human involvement”. It is within the Information Commissioner’s Office’s duties to issue guidance and to harmonise the interpretation of the law. As the dedicated regulator, the ICO is best placed and equipped to publish guidance and ensure consistency of application.
As a way to increase protections and incorporate more participation from those affected, Amendment 59A would add a new paragraph (7) to new Article 22D, which specifies that the Secretary of State needs to consult with the Information Commissioner’s Office if developing regulations. It also includes an obligation for the Secretary of State to consult with data subjects or their representatives, such as trade union or civil society organisations, at least every two years from the commencement of the Bill.
Our preference is for Clause 14 not to stand part of the Bill. The deployment of automated decision-making under Clause 14 risks automating harm, including discrimination, without adequate safeguards. Clause 14 creates a new starting point for all ADM using personal, but not special category, data. It is allowed, including for profiling, provided that certain safeguards are in place. The Minister said those safeguards are “appropriate” and “robust” and provide “certainty”, but I preferred what the noble Lord, Lord Bassam, said about the clause:
“We need more safeguards. We have moved from one clear position to another, which can be described as watering down or shifting the goalposts”.—[Official Report, 25/3/24; col. GC 150.]
That is very much my feeling about the clause as well.
I refer back to the impact assessment, which we discussed at some point during our discussions about Clause 9. It is very interesting that, in table 15 of the impact assessment, the savings on compliance costs are something like £7.3 million as regards AI and machine learning, which does not seem a very big number compared with the total savings on compliance costs, which the Government have put rather optimistically at £295 million.
In passing, I should say that, when I look at the savings regarding subject access requests, I see that the figure is £153 million, which is half of those so-called savings on compliance costs. I do not square that at all with what the Minister says about the total savings on compliance costs for subject access requests being 1%. I do not know quite where those figures come from,
but it is a far more significant percentage: it is 50% of what the Government believe that the savings on compliance costs will be. I know that it is not part of this group, but I would be very grateful if the Minister could write to clarify that issue in due course.
Although the Minister has called these adequate, we believe that they are inadequate for three reasons. First, they shift the burden to the individual. Secondly, there is no obligation to provide any safeguards before the decision is made. Neither the Bill nor any of the material associated with it indicates what the content of this information is expected to be, nor the timescales in which that information is to be given. There is nothing to say when representations or contest may be heard, when human intervention may be sought or the level of that intervention. Thirdly, the Secretary of State has delegated powers to vary the safeguards by regulations.
Article 22 is currently one of the strongest prohibitions in the GDPR. As we know, the current starting point is that using solely automated decision-making is prohibited unless certain exemptions apply. The exemptions are limited. Now, as a result of the Government’s changes, you can use solely automated decision-making in an employment context in the UK, which you cannot do in the EU. That is a clear watering down of the restriction. The Minister keeps returning to the safeguards, but I have referred to those. We know that they are not being applied in practice even now and that hiring and firing is taking place without any kind of human review.
There is therefore an entirely inadequate basis on which we can be satisfied that the Bill will safeguard individuals from harmful automated decision-making before it is too late. In fact, the effect of the Bill will be to do the opposite: to permit unfair and unsafe ADM to occur, including discriminatory profiling ADM, which causes harm to individuals. It then places the burden on the individual to complain, without providing for any adequate safeguards to guarantee their ability to do so before the harm is already incurred. While I beg to move Amendment 53, our preference would be that Clause 14 is deleted from the Bill entirely.