A new scandal on the horizon?
Yesterday the Data (Use and Access) Bill had its second reading in the House of Lords.
Lord Arbuthnot of Edrom, parliamentary hero of the Post Office scandal, mentioned our report Sex and the Data Bill: beware of building digital identities on sand after talking about how people’s lives were ruined because of unreliable data generated by the Post Office’s Horizon computer system.
In introducing the bill, the Parliamentary Under-Secretary of State for the Future Digital Economy and Online Safety, Baroness Jones of Whitchurch, promised that the digital verification system would be sufficiently trustworthy that businesses could build investment on it.
Like the Horizon system used by the wrongly accused postmasters, digital verification processes are part of a big government computing project that promises to deliver efficiencies, support modern digital government and improve people’s lives. The bill will legislate for a “trustmark” so that businesses can be approved to provide and use personal data by meeting “stringent requirements”.
It is the government’s responsibility to get this right – just as it was for the Post Office’s transaction data.
Lord Arbuthnot said emphatically:
“This is not an identity-card bill. It is an essential method of establishing that, if you want or need to have a digital identity, you are who you say you are and you have the attributes that you say you have. It is a way of establishing relevant facts about yourself without having to produce gas bills…
“We need to be clear that having a clear and verifiable digital identity is a completely different matter from going down the route of identity cards.”
He talked about some of the situations where it is important to have factual clarity about sex, saying:
“We do not want men going to women’s prisons, nor men who identify as women working in rape crisis centres. Sex is an issue on which it is necessary to have some degree of factual clarity in those circumstances where it matters.”
Then he highlighted our report, which sets out how people have been permitted to change official records such as passports, driving licences and NHS records to show them as the opposite sex. Yet these sources are taken as “authoritative” for the new Digital Verification Services framework.
Lord Lucas also raised the issue, saying:
“I would like a clear focus on getting definitions of data right. It is really important that […] we distinguish and make sure that both sex and gender are recorded in our key documents.”
Lord Clement-Jones, speaking for the Liberal Democrats, said on digital verification services that his party broadly supports the provisions but the Constitution Committee and the Delegated Powers and Regulatory Reform Committee had criticised the lack of parliamentary scrutiny of the trust framework to be set by the Secretary of State. He also said:
“I entirely agreed with what the noble Lords, Lord Lucas and Lord Arbuthnot, said about the need for factual clarity underlying the documents that will be part of the wallet – so to speak – in terms of digital ID services. It is vital that we distinguish and make sure that both sex and gender are recorded in our key documents.”
Responding for the government, Baroness Jones said:
“The noble Lord, Lord Arbuthnot, raised points about Sex Matters. Digital verification services can be used to prove sex or gender in the same way that individuals can already prove their sex using their passport, for example.”
But, just as Post Office officials denied for years that there was a problem with the Horizon system, saying that there were “no system-wide problems with our computer system and associated processes”, this misses the point. “Sex” on a passport can be changed on request. Therefore the Passport Office cannot provide robust verification of anyone’s sex. The system-wide recording of inaccurate sex data is already well documented.
“A customer’s gender is given at birth based on the sex of the individual. However, a person may feel conflict between that gender and how they feel. As a result, a customer may take steps to transition and live using the gender they identify with.”
HMPO will issue a passport showing a person to be the opposite sex if they provide a doctor’s letter saying that this is the “gender” they live in and “the change is likely to be permanent”, or if they say they are a “crossdresser” and are using their new identity for all purposes.
It is extremely concerning that officials at the Office for Digital Identities & Attributes (OfDIA), tasked with setting standards to ensure “that digital identities can be trusted to be reliable and accurate”, seem not to have briefed the minister sufficiently well that she understood this.
Passports, driving licences and records held by the NHS, police, social services and the Disclosure and Barring Service (DBS) all suffer from the same problem. They cannot be trusted to be accurate about people’s sex. And this matters for safeguarding, sports, single-sex services, health and social care – everywhere that sex matters, in other words.
It also matters for the private businesses that the government wants to encourage to invest in developing services using its trustmark. Like the thousands of sub-postmasters who put their life savings into developing village post offices. Unless the definition of the sex attribute is clear, these businesses risk having their trustmark taken away and losing the ability to do business, for a mistake that is not their own.
The one place where sex is recorded accurately and cannot be changed is the birth register. The government is already developing a “life events API” that will allow software to automatically query the birth register. This could be used as the authoritative source of sex data (the Office for Digital Identities & Attributes will need to work out how to match an individual to the right birth record). Alternative verification methods, such as truthful medical records, must also be available for individuals not born in the UK.
Sex Matters is running a rolling programme of briefings for Parliamentarians, officials and business on the trouble with the sex data. If you would like a briefing, contact [email protected].