Contribution
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.