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Data (Use and Access) Bill [HL]

My Lords, Amendment 44 in my name and those of the noble Lords, Lord Russell and Lord Clement-Jones, and the noble Baroness, Lady Harding, proposes a statutory code of practice on children’s education to ensure that children benefit from heightened protections when their data is processed for the purposes of relating to education.

My understanding is that, when the Minister stands up, he will tell us that the Secretary of State is going to write to the ICO and require him to either write such a

code or, if it is more practical, extend the AADC to cover educational settings. The either/or is because Government say the ICO is undertaking a consultation on edtech and DSIT is doing a consultation on AI, both of which have ramifications for children’s data at school.

Rather than make the argument for the amendment as written, I shall put on record for the department and the ICO the expectations of such a code. I hope that the Minister concurs with this list and that he will ensure that the ICO works with me and expert colleagues in the field to look at and respond to the evidence and ensure that the code addresses our concerns.

The code must apply to education provided in school settings but also outside the classroom—for example, when children use edtech products to complete homework set by school or for independent learning. The code must consider all aspects of the provision of education, including safeguarding and administration, as well as learning. The code should take as a starting point that children merit heightened protections and consider the needs of children at different ages and stages. The code should provide specific guidance on profiling, including predictions that may impact on children’s educational opportunities or outcomes. The code should require the ICO or the DfE to work with third parties to develop certification and accreditation schemes to support educators and parents in choosing products and services that are safe and private and improve learning outcomes. Lastly, in drawing up the code, the ICO must consult with children, parents, educators, devolved Governments and industry.

I also want to put on record that “school” means an entity that provides education to children in the UK. Importantly, that includes early-years providers, nursery schools, primary schools and so on, because often early years are left out of this equation.

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Without slipping into issues that we will debate in a moment, it is important to record here that on page 19 of the AI consultation the Government have proposed including works created by children in the course of their education—for example, essays, art, science products and musical creations—as part of their proposal to make IP-protected works freely available to AI web scrapers and other AI interests under their data mining exception rules. My understanding of the proposal is that they mean freely available in both senses. Those who specialise in the area of education are very shocked by this suggestion. One wrote to me and said:

“children go to school for the state to enable their right to education, not to enable their exploitation for data mining. This is an absolute no”.

I want the Minister to explain whether this is now the price of a school-based education. Is this a decision the Government have made?

I cannot see a reasonable way for a child to opt out of such an arrangement, which is at odds with current advice, which, I note, was updated only last week and says:

“It is recommended that personal data is not used in generative AI tools”;

and that

“Schools and colleges must not allow or cause students’ original work to be used to train generative AI models unless they have permission, or an exception to copyright applies … Exceptions to copyright are limited, and settings may wish to take legal advice to ensure they are acting within the law”.

This is advice to teachers that they could not possibly implement. It is a giveaway of a child’s right to privacy and with it their safety and their autonomy. I have been inundated on this exact point, so I really would be grateful for the noble Lord to explain the extent to which this is going to happen and what boundaries the Minister sees to this outcome.

Would the Minister also say whether he is confident that the ICO’s consultation on edtech will be meaningful. I say this in light of the Online Safety Act, which has enraged dozens of organisations, large and small, which provided extensive evidence and opinion that has all been summarily dismissed by Ofcom, which has watered down codes in spite of evidence to the contrary and failed to act on provisions agreed in this House. I really hope to be pleased and proud that the Government have chosen to have an edtech code, so I would like some reassurance on these points.

Finally, I just want to say to the House that I was, by chance, on a call with children from all across the world on the weekend, and their primary concern was that technology, including AI, was shaping their world for the worse. Children are asking that school be a place of security, safety and freedom, without the extractive or pushy qualities that characterise tech in the rest of their lives. I hope the Minister is willing to commit to that when he responds. I beg to move.