Online Harms and Other Issues

We need to end the confusion and build public trust over health data

During recent debates  during the passage of the Health and Scare Bill I helped move amendmendments designed to end the confusion on the use and sharing of Health Data. The complications involved in using health data for public benefit and the lack of public engagement has led to a massive loss of trust. The transfer of health data responsibilities to NHS England from NHS Digital without proper consultation and the GP data opt out fiasco are a particular examples of how public trust can be lost. The review by Profressor Ben Goldacre has recognized this and I hope will lead to a much more comprehensive and clear framework for the protection and use of health data.

The first debate was on the subject of digital transformation of the health service generally

I start by warmly thanking the noble Lord, Lord Hunt of Kings Heath, for allowing me to speak to and lead on this set of amendments, to which his is the leading name. By the same token, I am delighted to see that he is now back in his place and able to advocate much more knowledgeably than I can the merits of the amendments in this group, which relate to the digital aspects of the NHS and the importance of digital transformation in the health service. They are designed to ensure that a digital transformation duty is set out, five-year plans are made, digital issues are high up on the agenda of the ICBs, and progress in this area is assessed and reported on.

I am sorry that I was not able to contribute at Second Reading on digital or data matters. However, as Chris Hopson, chief executive of NHS Providers, said in his Observer piece two Sundays ago,

“we need a national transformation programme that embeds modern technology, 21st century medicine, integrated care closer to home and much greater emphasis on prevention at the heart of our health and care system.”

There is huge potential for technology to help health and care professionals to communicate better and to enable people to access the care they need quickly and easily when it suits them. Quite apart from its impact on planning and administration, the technology, as the NHSE digital transformation website emphasises, goes all the way from ambulance iPads through fitness apps to digital home care technology. It ranges from websites and apps that make care and advice easy to access wherever you are to connected computer systems that give NHS staff the test results, history and evidence they need to make the best decisions for patients.

As the recent Wade-Gery report points out:

“Digital technology is transforming every industry including healthcare. Digital and data have been used to redesign services, raising citizen expectations about self-service, personalisation, and convenience, and increasing workforce productivity.”

It says that the NHS should be in the vanguard. It goes on to say:

“The pandemic has accelerated the shift to online and changed patient expectations and clinical willingness to adopt new ways of working.”

It also says that

“the vaccine programme, supported by so many brilliant volunteers and staff, was only possible through the use of advanced data analytics to drive the risk stratification, population segmentation and operational rollout.”

However, the review also says:

“The need is compelling. The NHS faces unprecedented demand and severe operational pressure as we emerge from the coronavirus pandemic, and we need new ways of working to address this. Now is the moment to put data, digital and technology at the heart of  how we transform health services … Effective implementation will require a significant cultural shift away from the current siloed approach in the centre with conscious management to ensure intentions translate to reality … This system leadership should be responsible, in a partnership model between the centre and ICSs, for setting out the business and technology capability requirements of ICSs and the centre with the roadmaps to realise these, and for determining the appropriate high level technical standards, and blueprints for transformed care pathways.”

I have quoted the Wade-Gery review at length but the What Good Looks Like framework set out by NHSX last year is an important document too, designed as it is to be used to accelerate digital and data transformation. It specifies in success measure 1:

“Your ICS has a clear strategy for digital transformation and collaboration. Leaders across the ICS collectively own and drive the digital transformation journey, placing citizens and frontline perspectives at the centre. All leaders promote digitally enabled transformation to efficiently deliver safe, high quality care. Integrated Care Boards (ICBs) build digital and data expertise and accountability into their leadership and governance arrangements, and ensure delivery of the system-wide digital and data strategy.”

Wade-Gery recommends, inter alia, that we

“reorientate the focus of the centre to make digital integral to transforming care”.

In the light of all this, surely that must apply to ICBs as well.

We need to adopt the measures set out in the amendments in this group; namely there should be a director of digital transformation for each ICB. ICBs need clear leadership to devise, develop and deliver the digital transformation that the NHS so badly needs, in line with all the above. There also needs to be a clear duty placed on ICBs to promote digital transformation. It must be included as part of their performance assessment—otherwise, none of this will happen—and in their annual report..

The resources for digital transformation need to be available. Capital  expenditure budgets for digital transformation must not  be raided for other purposes and digital transformation should take place as planned. It is clear from the Wade-Gery report that we should be doubling and lifting our NHS capital expenditure to 5% of total NHS expenditure, as recommended by the noble Lord, Lord Darzi, and the Institute for Public Policy Research back in June 2018. We should have done that by June 2022 to accord with his recommendations but we are still suffering from chronic underinvestment in digital technology. Indeed, what are the Government’s expenditure plans on NHS digital transformation? We should be ring-fencing the 5% as firmly as we can. As Wade-Gery says:

“NHSEI should therefore as a matter of urgency determine the levels of spend on IT across the wider system and seek to re-prioritise spend from within the wider NHSE budget to support accelerated digital transformation.”

It adds up to asking why these digital transformation aspirations have been put in place without willing the means.

I am also mindful of the other side of the coin of the adoption of digital transformation: there needs to be public information and engagement. 

Our amendments are designed to ensure the provision of information about the deployment of treatments and technology as part of ICBs’ patient involvement and patient choice duties. Without that kind of transparency, there will not be the patient and public trust in the NHS adoption of digital technology that is needed. Rightly, success measure 1 of the NHSX What Good Looks Like framework includes that an ICS should, inter alia,

“identify ICS-wide digital and data solutions for improving health and care outcomes by regularly engaging with partners, citizen and front line groups”.

Success measure 5, titled “Empower citizens”, says:

“What does good look like? Citizens are at the centre of service design and have access to a standard set of digital services that suit all literacy and digital inclusion needs. Citizens can access and contribute to their healthcare information, taking an active role in their health and well-being.”

So in the NHS’s view the engagement and provision of information about the deployment of new technologies is absolutely part of the delivery of a digital transformation strategy.

In essence, the amendments would enshrine what is already there in Wade-Gery and best practice guidance where it relates to digital technology and transformation. We should be making sure that our NHS legislation is fully updated in line with that report and with the guidance on what success looks like for the digital age. I hope the Minister agrees to take the amendments on board, and I look forward to hearing his reply.

The second two committee debates were specifically on health data

These amendments relate to the abolition of the Health and Social Care Information Centre and the implications for the integrity of patient data. Clauses 88 and 89 give the Secretary of State powers through regulations to transfer a function from one relevant body to another, and the relevant bodies are defined as Health Education England, the Health and Social Care Information Centre, the Health Research Authority, the Human Fertilisation and Embryology Authority, the Human Tissue Authority and NHS England. Other than NHS England, each of those bodies can be abolished under the clause as the result of a transfer of functions.

 Clause 88 provides for the abolition of the Health and Social Care Information Centre. The Government have announced that they will be using the powers in that clause to merge NHS Digital to form part of the new transformation directorate within NHSE, and of course we have seen that NHSX has now been abolished and the relevant personnel have moved into the transformation directorate. The Health and Social Care Information Centre is an executive non-departmental public body created by statute, usually known by the term “NHS Digital”. This amendment, which would prevent that from happening to the HSCIC, is designed to ensure that NHS Digital continues as an entity to safeguard patient data. The merger of NHS Digital with NHSE risks losing the skills and experience that currently sit within NHS Digital. I have mentioned that NHSX has ceased to exist.

There are two risks for patients. One is that important knowledge and skills will be lost as talented people leave the organisation and time is devoted to the nuts and bolts of making the organisation function rather than on achieving its aims. The other is that the new merged organisation will just be too big and unwieldy to respond in an agile way to major challenges such as workforce planning and digital innovation. If NHSE leaders understand how important these challenges are then they will be able to prioritise them and make them part of the organisation’s core function.

I turn to the functions of the statutory safe havens in relation to Clause 89. Part 9 in Chapter 2 of the Health and Social Care Act 2012 lays out the functions and obligations of what is described as the statutory safe haven for patient data from across the health and social care system required for the production of national statistics and for commissioning, regulatory and research purposes, in addition to supporting patient care. Amendment 228 seeks to keep these statutory protections in place and ensure that NHS England does not take on that responsibility, because of a potential conflict of interest in its role.

The bottom line is that we need to retain NHS Digital’s statutory safe haven functions separate from NHS England. As the BMA has said, it is of the utmost importance to retain a quasi-autonomous body for the purposes of collecting, storing and distributing sensitive patient data—something that would be lost under a merger of NHSD and NHSE.

There is one other major advantage of keeping NHS Digital as the digital safe haven. The statutory safe haven’s legal name is the Health and Social Care Information Centre, so there is some obligation to social care. NHSD has always given some thought to integration, even when there was very little on the social care side to integrate with, and little interest from NHSE in doing that work itself. If it all gets merged into NHSE then how will the obligation to collect social care data continue to exist, since NHSE’s responsibility is to the NHS? If this transfer of functions takes place, who will be responsible for the national collection of social care data? Each bit of the social care world will see NHSE as a different entity from NHS Digital. What are the Government’s joining-up plans in respect of the future governance of this kind of data? I beg to move.

I take this opportunity to come back to the Minister to add a query about the data governance regime which he has described this evening and into which we dipped our toe with the last group of amendments. My noble friend anticipated me in discussing the White Paper, which, in turn, follows from the Data Saves Lives draft strategy. I hope we will have the opportunity to meet the Minister to discuss this further because it is a very complex area.

I want to add to that conversation the fact that we variously have IGARD, CAG and the National Data Guardian for Health and Care—as well as NHS Digital, which we hope will remain separate, but we will come to that shortly. We have all these different bodies, but we need a simple regime which helps us understand, for instance, whether the Minister will say, “Yes, it’s already happening”, to the noble Baroness, Lady McIntosh, or, “No, it’s not going to happen.” I could not tell you the answer to that question in my current state of knowledge about the ability to transfer information across the health service and internationally.

There is a balance to be struck between the established protections and new provisions which might expedite the development of access to new and improved treatments and technologies—but it must be done in a safe way. I hope that, between Committee and Report, the Minister will take the opportunity to ensure that we have all the information we need on plans to perform a so-called reset of or new direction for—or however he might like to describe it—the NHS’s use of our health data.

At Report Stage we made some progress 

Later when the Bill came back to the Lords but before the Golacre review was published I acknowledged that the Government had promised action 

My Lords, briefly, I support the remarks of the noble Lord, Lord Hunt, regarding Motions F and F1. He, assisted by my noble friend Lady Brinton and I, has pursued the question of the future of data governance in the NHS with great determination and persistence. I pay tribute to him and to medConfidential in that respect. I know that the Minister, the noble Lord, Lord Kamall, is equally determined to make sure that data governance in the new structures is designed to secure public trust. I very much hope that he will give the assurances sought by the noble Lord, Lord Hunt.

The key problem we identified early on was the conflict of interest referred to by the noble Lord, Lord Hunt, with NHS England in effect marking its own homework, and those who have data governance responsibility reporting directly to senior managers within the digital transformation directorate. I hope that the assurances to be given by the Minister will set out a clear set of governance duties on transparency of oversight, particularly where NHS England is exercising its own statutory powers internally. I look forward to what the Minister has to say

by Tim Clement-Jones

Lord C-J : Marking International Women's Day and the Need for Free Speech

by Tim Clement-Jones

Lib Dems back new policy on Democracy and Public Debate

At our recent conference the Party backed a new policy paper on Democracy and Public Debate.

This is what I said in support

Conference, As we saw from the debate last Autumn, policy on public debate and free speech is a difficult one to get right, particularly online.  We have to  make sure as a party that we find the proper balance  between the right not to experience harm online and the right to freedom of expression.

I admit that none of us are going to agree with every single word of a policy document when the digital world is moving  so fast but this is a good motion and we need to make decisions.

I spent 6 months of last year on the Joint Scrutiny Committee  looking in detail at the Government’s flawed proposals for the regulation of online harms in the draft Online Safety Bill. We heard evidence from a great number of witnesses about the grievous harms such as revenge porn, cyberflashing, trolling, encouragement to suicide and racism, being experienced online, in particular by children, and those with protected characteristics.

We also heard about the potentially dangerous impact of online platforms on our democracy in the way their algorithms and business models  target messages- often extreme-using our own behavioural data.

Frances Haugen-the brave former Facebook now Meta employee  in particular gave us a vital insight into the threats to our democracy from online mis and dis-information and the platforms’ failure to take adequate action. 

The January 6th Riot at the Capitol in Washington was fuelled by Social Media. We now know the reality of Russian interference in Presidential elections and the Brexit Referendum via opaque social media accounts. 

People should have the same rights online as they have offline and we must also recognize the unique  dangers that online access sometimes poses.

The Online Safety Bill is due to be published this coming week. The Elections Bill is going through Parliament. We have new digital competition law coming down the track. If we pass this motion today it will give us a distinctive Liberal Democrat approach that we can be proud of.

Our Digital Bill of Rights will set out the principles of the approach. In particular : the right to free expression and participation online without being subject to harassment and abuse which should underpin our Party and Society. 

We must regulate so we ensure platforms comply with these principles, are audited for their policies and processes in terms of treatment of users and dissemination of illegal content monitored on how they respond to infringement and sanctioned for failure, with the Communications Court as a backstop.

Media and digital literacy too, so strongly emphasized by the Democracy and Public Debate paper, is vital too. We need, as it says, to combat misinformation with critical thinking. 

Conference this motion combines principles, regulation and education in the right proportion. Please back it  overwhelmingly.

by Tim Clement-Jones

To Save Democracy We Must Tackle Dis- and Misinformation Online

Recently the House of Lords debated the Report "Digital Technology and the Resurrection of Trust" produced by the Democracy and Digital Technologies Select Committee chaired by Lord David Puttnam, now sadly retired from the House of Lords

This is an edited version  of the speech I gave winding up the debate

My Lords, this has been an inspiring debate. Events in Ukraine should make us all cherish our democracy in Britain and reinforce our determination to reinforce democratic values across the world. Nothing can compare with the suffering of the Ukrainian people in the defence of their democracy: they are a shining example to us all.

It is regrettable that we are debating this excellent report, which is still highly topical, nearly two years after it was published. I, like all of us who have spoken in this debate, very much miss Lord Puttnam leading the charge on the issues so important to him, and with which his valedictory lecture last October dealt so brilliantly. We also owe a big debt of gratitude to the noble Lord, Lord Lipsey, for stepping in and for his masterful introduction. It is good to see so many members of the committee participating today.

As the noble Lord, Lord Lipsey, says, what seemed controversial then has become commonplace today. Some of the recommendations of the committee are already in the pipeline, but we need to give far more attention to the other recommendations that are not in the pipeline. Given the crossover with many aspects of the report of the Joint Committee on the Draft Online Safety Bill, I am particularly pleased to be taking part in this debate today.

In a piecemfour years ago, US tech journalist Dylan Matthews wrote:

“The internet was supposed to save democracy… How could we have gotten this so wrong?”

He wrote this in the light of allegedmanipulation by Russia both in the US presidential elections and in the Brexit vote, with the aid of Cambridge Analytica, which used data collected online from millions of personal Facebook accounts, targeting individuals with specific misinformation. As the noble Baroness, Lady Morris, said, we were too slow to see the risks. As the noble Lord, Lord Stevenson, said, who doubts this activity now?

In the intervening years, the power of viral disinformation on social media has become even clearer. The long-delayed report on Russian interference, by the Intelligence and Security Committee in July 2020, said:

“The UK is clearly a target for Russia’s disinformation campaigns and political influence operations and must therefore equip itself to counter such efforts.”

We also had the riots at the Capitol in Washington DC on 6 January 2021, mentioned by the noble Lord, Lord Harris. An investigation by ProPublica and the Washington Post found that Facebook groups swelled —with at least 650,000 posts attacking the legitimacy of Joe Biden’s victory—between election day and the 6 January riot, with many calling for executions or other political violence.

We have had former Facebook—now Meta—employee Frances Haugen’s damning testimony, mentioned by the noble Baroness, Lady Kidron, and the noble Lord, Lord Mitchell, to the USA Senate and our own Joint Committee on the Draft Online Safety Bill, on which I sat. She accused the company of putting

“astronomical profits before people.”

Most of us need little convincing that things have gone badly wrong somewhere, and in 2022, after Covid lockdown, the situation seems worse. But as the report of the Democracy and Digital Technologies Committee says, we must look at the roots of the problem and the accountabilities involved. It is all about the power of the algorithm and data, as the noble Lords, Lord Stevenson and Lord Mitchell, said.

We are being targeted with our own data. Online political microtargeting is used to alter how we vote, especially with misinformation. xtreme content is amplified as part of the platform business model. Outrage is encouraged. Their business models operate directly against the best interests of a democratic society. They prey on us, in that vivid phrase quoted by the noble Baroness, Lady Kidron. Lord Puttnam made the strong point in his valedictory lecture that 6 January was a wake-up call to tackling the problems with microtargeting and algorithm bias which underlie the business models of the social media platforms.

Ownership of data is increasingly concentrated in the hands of big internet brands, as we have heard from a number of noble Lords today. Metcalfe’s law of networks has led to enormous and growing power for social media.

What should the consequences be for social media? How can we prevent these harms to democracy? How can we restore trust—or resurrect it, in the words of the report? The bottom line is that we do have the power, as the noble Lords, Lord Holmes and Lord Stevenson, said. We need government regulation, and quickly. In the phrase used by Avaaz, we need to detoxify the algorithm, not only regarding hate speech, terrorism and cyberbullying but in very clear electoral regulation and action by the Competition and Markets Authority to enforce competition in the tech and data space.

We also need much greater personal control over our data and how it is used. Misinformation and disinformation are particularly hard to define, but as the committee said, if the Government decide that the Online Safety Bill is not the appropriate place to do so, then it should use the Elections Bill, which is currently making its way through Parliament. Tackling societal harms caused by misinformation and disinformation is not straightforward, as our Joint Committee found, but the draft online safety Bill, as we described in our report of last December, needs to go further.

There is of course a tension with freedom of expression and as we emphasised, we must prioritise tackling specific harmful activity over restricting content.

In our Joint Committee report, we recommended safety by design requirements, such as increasing transparency and countering algorithmic power and virality; as Fair Vote says, it is a proven way to preserve free speech, while limiting free reach of content that poses societal harm at scale. For example, we heard that a simple change—introducing more friction into sharing on Facebook—would have the same effect on the spread of misinformation and disinformation as the entire third-party fact checking system.

We do not yet know what the Government’s response to these recommendations is—that may come next week—but we do have the Elections Bill in front of us. The real government reluctance is in reform of electoral law and regulation of digital political activity. Apart from the digital imprint provisions, the Bill fails to take any account of the mounting evidence and concerns about the impact on our democracy of misinformation and disinformation. The Government are yet even to adopt the Electoral Commission report of June 2018, Digital Campaigning: Increasing Transparency for Voters, which called for urgent reforms to electoral law to combat misinformation, misuse of personal data and overseas interference in elections amid concerns that British democracy may be under threat. Why are these recommendations not contained in the Elections Bill? We heard in the previous debate today about the flaws in that Bill

How prescient was the ISC in its Russia report:

“The links of the Russian elite to the UK – especially where this involves business and investment – provide access to UK companies and political figures, and thereby a means for broad Russian influence in the UK. To a certain extent, this cannot be untangled and the priority now must be to mitigate the risk and ensure that, where hostile activity is uncovered, the tools exist to tackle it at source.”

Most recently, the Committee on Standards in Public Life has made a number of other important recommendations regarding digital and social media campaigning.

But, as have heard today, this is not enough. Regulation by itself will not deal with all the issues. Even though we are facing issues that threaten democracy, we should be trying to preserve the good that the internet has done as we work to mitigate itsharm to our political system. So, as well as regulation, there needs as be—as the Democracy and Digital Technologies Committee report says—public engagement to support digital understanding at all levels of society. As several noble Lords said, digital literacy and digital skills are of huge importance, as also emphasised by the Committee’s report. We must do more than simply expect Ofcom—even under the chairmanship of the noble Lord, Lord Vaizey—to deliver a digital media strategy. This needs a whole-of-government and whole-of-society approach. We are supposed to be the cradle of democracy, yet the EU is way ahead of us in its proposals to regulate political advertising. This needs cross-governmental action and much greater action from social media platforms themselves.

At the end of the day, however,we need to look in the mirror. We deserve a better system. The Government are playing into the hands of those who wish to erode our democracy by digital means. Why are they intent on reducing the independence of the Electoral Commission? As the noble Lord, Lord Griffiths, said, trust in our democracy has been eroded by this Government—certainly by the negative response so graphically described by the noble Lord, Lord Mitchell. The Government must change tack and provide effective safeguards.

by Tim Clement-Jones

The Road to Trustworthy Use of Healthcare Data: Good Governance and a Sovereign Health Fund

I recently did a Guest blog for Future Care Capital  on Data in the Health and Care Bill

https://futurecarecapital.org.uk/latest/guest-blog-lord-clement-jones-3/

The Health and Social Care Bill currently passing through Parliament potentially contains major changes to the way that our public health data will be treated with the merging of NHS Digital and NHSX with NHS England. Important amendments are needed.

All of us recognize the benefits of using health data which arises in the course of treating patients in the NHS for research that will lead to new and improved treatments for disease and for the purposes of public health and health services planning. It has in particular been of great benefit in helping to improve the treatment of COVID during the pandemic.

The introduction of Shared Care Records is a key part of this revolution. These allow staff involved in a person’s care, to access health and care records to provide better joined-up care across different parts of the health and social care system.

But increasingly the Government and, I am sad to say, agencies such as NHS Digital and NHSX seem to think that they can share patient data with private companies with barely a nod to patient consent and proper principles of data protection.

We can go back to December 2019 and the discovery by Privacy International that the Department of Health and Social Care had agreed to give free access to NHS England health data to Amazon allowing them to develop, advertise, and sell new products, applications, cloud-based services and/or distributed software.

Take the situation last year where we had what has been described as the biggest data grab in the history of the health service of GP patient data. In May, NHS Digital with minimal consultation, explanation or publicity and without publication of any data protection impact assessment (DPIA) published its plans to share patients’ primary health care data collected by GP practices giving patients just 6 weeks to opt-out.

As a result of campaigners’ efforts, including a group of Tower Hamlets GPs who refused to hand over patient data, Ministers first announced that implementation would be delayed until 1 September and then by letter to GP’s in July put the whole scheme on hold including data collection.

As a result of this bungled approach more than a million people have now opted out of NHS data-sharing.

The government have had to revise their approach and devise a simpler opt-out system and commit to the publication of a data impact assessment before data collection starts again. They have had to commit that access to GP data will only be via a Trusted Research Environment (TRE) and commit to properly thought through engagement and communications strategy.

But if we areto retain and build trust in the use of health data, we need a new governance framework.

The Government must gain society’s trust through honesty, transparency and rigorous safeguards. The individual must have the right to choose whether to share their data or not and understand how it will be used.

We need to retain NHS Digital’s statutory safe haven functions separate from NHS England and all health data must be held anonymously and accessed through an accredited data access environment, designed to cover not only the promised TRE but also where data is used for planning purposes.

The data held by the NHS must be considered as a unique source of value held for national benefit. Retaining control over our publicly generated data, particularly health data, for planning, research and innovation is vital if the UK is to maintain its position as a leading life science economy and innovator.

We need a guarantee that our health data will be used in an ethical manner, assigned its true value and used for the benefit of UK healthcare. Any proceeds from data collaborations that the Government agrees to, integral to any replacement or new trade deals, should be ring-fenced for reinvestment in the health and care system with a Sovereign Health Fund.

Those I believe are the right foundations for health data governance and, alongside other members of the Lords such Lord Hunt of Kings Heath and Baroness Cumberledge -both with enormous experience of the health service- I will be supporting and tabling amendments during the passage of the Bill to secure them.

by Tim Clement-Jones

Report of the Joint Committee on the Online Draft Bill: New offences and tighter rules

After 4 months work the Joint Select Committee on the Draft Online Safety Bill, with  Damian Collins MP as our excellent Chair, has produced its report to generally favorable reviews

We have tried to ensure in our recommendations that the safety duties placed on Ofcom and the platforms are much clearer, by reference to existing and new, Law Commission recommended, offences and at the same time we do not infringe rights to freedom of expression. We have also recommended that paid for advertiing and online scams are included in regulated acctivity. We have recommended that it be made clear that all commercial pornography site be subject to the Age Appropriate Design Code aso that Age Assurance ensures that young people are are not subjected to unwanted online porn. We have also recommended that the role of Online Safety Ombudsman be established.

Here is the BBC summary

https://www.bbc.co.uk/news/technology-59638569

And here is the official parlimentary summary

https://ukparliament.shorthandstories.com/draft-online-safety-bill-joint-committee-report/index.html

by Tim Clement-Jones

Ingredients for good higher education governance

I was recently asked by Advance HE to do a short piece reflecting on governance in the Higher Education Sector. It is reprinted in the Wilde Search publication  Robust, Resilent and Ready: Assessing and Strengthening Governance in Charities and Education

https://www.advance-he.ac.uk/news-and-views/ingredients-good-higher-education-governance

https://www.wildsearch.org/pdf-robust-resilient-and-ready

Chairing a Higher Education institution is a continual learning process and it was useful to reflect on governance in the run up to Advance HE’s recent discussion session with myself and Jane Hamilton, Chair of Council of the University of Essex.

Governance needs to be fit for purpose in terms of setting and adhering to a strategy for sustainable growth with a clear set of key strategic objectives and doing it by reference to a set of core values. And I entirely agree with Jane that behaviour and culture which reflect those values are as important as governance processes.

But the context is much more difficult than when I chaired the School of Pharmacy from 2008 when HEFCE was the regulator. Or even when I chaired UCL’s audit committee from 2012. The OfS is a different animal altogether and despite the assurance of autonomy in the Higher Education Act, it feels a more highly regulated and more prescribed environment than ever.

I was a Company Secretary of a FTSE 100 company for many years so I have some standard of comparison with the corporate sector! Current university governance, I believe, in addition to the strategic aspect, has two crucial overarching challenges.

First, particularly in the face of what some have described as the culture war, there is the crucial importance of making, and being able to demonstrate, public contribution through – for example – showing that:

• We have widened access
• We are a crucial component of social mobility, diversity and inclusion and enabling life chances
• We provide value for money
• We provide not just an excellent student experience but social capital and a pathway to employment as well
• In relation to FE, we are complementary and not just the privileged sibling
• We are making a contribution to post-COVID recovery in many different ways, and contributed to the ‘COVID effort’ through our expertise and voluntary activity in particular
• We make a strong community contribution especially with our local schools
• Our partnerships in research and research output make a significant difference.

All this of course needs to be much broader than simply the metrics in the Research Excellence and Knowledge Exchange Frameworks or the National Student Survey.

The second important challenge is managing risk in respect of the many issues that are thrown at us for example

• Funding: Post pandemic funding, subject mix issues-arts funding in particular. The impact of overseas student recruitment dropping. National Security and Investment Act requirements reducing partnership opportunities. Loss of London weighting. Possible fee reduction following Augar Report recommendations
• The implications of action on climate change
• USS pension issues
• Student welfare issues such as mental health and digital exclusion
• Issues related to the Prevent programme
• Ethical Investment in general, Fossil Fuels in particular
• And, of course, freedom of speech issues brought to the fore by the recent Queen’s Speech.

This is not exhaustive as colleagues involved in higher education will testify! There is correspondingly a new emphasis on enhanced communication in both areas given what is at stake.

In a heavily regulated sector there is clearly a formal requirement for good governance in our institutions and processes and I think it’s true to say, without being complacent, that Covid lockdowns have tested these and shown that they are largely fit for purpose and able to respond in an agile way. We ourselves at Queen Mary, when going virtual, instituted a greater frequency of meetings and regular financial gateways to ensure the Council was fully on top of the changing risks. We will all, I know, want to take some of the innovations forward in new hybrid processes where they can be shown to contribute to engagement and inclusion.

But Covid has also demonstrated how important informal links are in terms of understanding perspectives and sharing ideas. Relationships are crucial and can’t be built and developed in formal meetings alone. This is particularly the case with student relations. Informal presentations by sabbaticals can reap great rewards in terms of insight and communication. More generally, it is clear that informal preparatory briefings for members can be of great benefit before key decisions are made in a formal meeting.

External members have a strong part to play in the expertise and perceptions they have, in the student employability agenda and the relationships they build within the academic community and harnessing these in constructive engagement is an essential part of informal governance.

So going forward what is and should be the state of university governance? There will clearly be the need for continued agility and there will be no let-up in the need to change and adapt to new challenges. KPI’s are an important governance discipline but we will need to review the relevance of KPIs at regular intervals. We will need to engage with an ever wider group of stakeholders, local, national and global. All of our ‘civic university’ credentials may need refreshing.

The culture will continue to be set by VCs to a large extent, but a frank and open “no surprises” approach can be promoted as part of the institution’s culture. VCs have become much more accountable than in the past. Fixed terms and 360 appraisals are increasingly the norm.

The student role in co-creation of courses and the educational experience is ever more crucial. The quality of that experience is core to the mission of HE institutions, so developing a creative approach to the rather anomalous separate responsibilities of senate and council is needed.

Diversity on the Council in every sense is fundamental so that there are different perspectives and constructive challenge to the leadership. 1-2-1s with all council members on a regular basis to gain feedback and talk about their contribution and aspirations are important. At Council meetings we need to hear from not just the VC, but the whole senior executive team and heads of school: distributed leadership is crucial.

Given these challenges, how do we attract the best council members? Should we pay external members? Committee chairs perhaps could receive attendance allowance type payments. But I would prefer it if members can be recruited who continue to want to serve out of a sense of mission.

This will very much depend on how the mission and values are shared and communicated. So we come back to strategic focus, and the central role of governance in delivering it!

Tim Clement-Jones

by Tim Clement-Jones

Lord C-J: Why We Should Support Baroness Kidron's Age Assurance Bill

I recently wound up a debate in the House of Lords on the Second Reading of Baroness Beeban Kidron's Age Assurance Private Member's Bill which is designed to set mandatory standards for age assurancace for internet sites and online platforms in the UK

Here is my speech explaining why I support this as an essential part of keeping children safe online.

https://hansard.parliament.uk/Lords/2021-11-19/debates/B5044809-8B71-4C4A-82F8-5BA496610C54/AgeAssurance(MinimumStandards)Bill(HL)#contribution-526C6AA7-0F3C-49D1-BBD8-83CDA39340AD

My Lords, I add my thanks to those from all around the House to the noble Baroness, Lady Kidron, for introducing the Bill with such passion and commitment. We all know what an amazing campaigner she is. We hope that this is another stage in the end of—to adopt the powerful phrase of the noble Lord, Lord Cormack—the destruction of innocence.

It is a privilege to be winding up from these Benches, and to serve on the Joint Committee on the Draft Online Safety Bill along with the noble Baroness and the noble Lord, Lord Gilbert. Naturally, Members of the House have focused today on the importance of age assurance to child protection in terms of both safety and data protection. We should not tolerate the collateral damage from the online platforms—another powerful phrase, this time from the noble Baroness, Lady Kidron—as the cost of innovation.

A number of noble Lords, such as the noble Lord, Lord Russell, talked about cyberbullying, while the noble Baroness, Lady Bull, talked about the impact on body image and mental health in consequence. All around the House there are different motives for wanting to see proper standards for age assurance. I very much share what the noble Baroness, Lady Boycott, had to say about access to pornography having such a pernicious impact on young people’s relationships. At the same time, it was worth celebrating the genesis of Spare Rib. The word “empowerment” sprang to mind, because that underlies quite a lot of what we are trying to do today.

From my point of view, I cannot do better than quote the evidence from Barnardo’s to our Joint Select Committee to explain the frustration about what has been a long, winding and ultimately futile road over Part 3 of the Digital Economy Act, for which we waited for two years only to be told in 2019 that it was not going to be implemented. As Barnardo’s says:

“The failure to enact the original age verification legislation over three years ago has meant that thousands of children have continued to easily access pornography sites and this will continue unless the draft legislation is amended. Evidence shows (detailed later in the response) that accessing harmful pornography has a hugely damaging impact on children.”

As the noble Lord, Lord Lipsey, says, there should not be a second’s argument about restricting this. The evidence from Barnardo’s continues:

“The British Board of Film Classification survey in 2019 reported that children are stumbling upon pornography online from as young as seven. The survey also suggested that three-quarters of parents felt their child would not have seen porn online but more than half had done so.”

The noble Baroness, Lady Finlay, talked about a jungle of predators. The noble Lord, Lord Russell, even spoke of a pyramid of dung, which is an expression that was new to me today. The message from the noble Lord, Lord Gilbert, is clear: we need to be vigilant. It is astonishing that the online safety Bill itself does not tackle this issue. The noble Baroness, Lady Greenfield, put the whole impact of digital technology and social media on the brains of young people into perspective for many of us.

However, the crucial aspect is that the Bill is not about the circumstances in which age assurance or age verification is required but about the standards that must be adhered to. As the noble Baroness, Lady Kidron, said, we are talking about secure and privacy-protecting age assurance, proportionate to risk and with a route to redress. This is further testimony, from the NSPCC evidence to the Joint Select Committee:

“Given the intrinsic role of age assurance to deliver a higher standard of protection for children, the Government should set out further detail about how it envisages age assurance being implemented. Further clarification is required about if and when it intends to set standards for age assurance technologies. While the ICO intends to publish further guidance on age assurance measures later this year, it remains highly unclear what standards and thresholds are likely to apply.”

The process of setting standards started with the BBFC in preparing for the coming into effect of Part 3 of the Digital Economy Act. As the designated age-verification regulator, the BBFC published guidance on the kind of age-verification arrangements that would have ensured that pornographic services complied with the law. It rightly opted for a principles-based approach, as indeed does the Bill, rather than specifying a finite number of approved solutions, in order to allow for and encourage technological innovation within the age-verification industry. Sadly, that guidance was not implemented when the Government decided not to implement Part 3 of the DEA. As I say, this Bill adopts a similarly non-technology-prescriptive approach.

It is clearer than ever that, across a variety of news cases, we need a binding set of age-assurance standards. Again, I was taken by another phrase used by the noble Lord, Lord Gilbert: we need to create a positive place online. The noble Baroness, Lady Bull, talked about the digital world that children deserve. Why have the platforms not instituted proper age assessment already, as the noble Baroness, Lady Kennedy, asked? This should have been fixed a long time ago. As the noble Baroness, Lady Harding says, it is a multibillion-pound industry and, as the noble Lord, Lord Gilbert, said, they already know a huge amount about us. As the noble Baroness, Lady Finlay, said, the responsibility lies with the platforms, not young people, who are prone to addiction technology.

We can and should incorporate the requirements of the Bill into the online safety Bill, but we have an urgent need to make sure that these age-assurance standards are clear much earlier than that. The ICO set out in its guidance in October, Age Assurance for the Children’s Code—previously the age-appropriate design code—expectations for age-assurance data protection compliance. Ofcom’s Video-sharing Platform Guidance: Guidance for Providers on Measures to Protect Users from Harmful Material, also published in October, is even weaker. There is not even an expectation; it simply says:

“VSP providers may consider the following factors when establishing and operating age assurance systems”.

That is all they are, considerations and expectations. At present there are no sanctions attached to those requirements. It is clear that we need binding standards for age assurance to make these sets of guidance fully operative and legally enforceable.

The technology is there. The Government should adopt the Bill here and now—and ensure its passage before the end of this term. As the noble Baroness, Lady Harding, says, it lies in our hands. I hope noble Lords will resist the temptation to table amendments during the passage of the Bill. If they do resist that, we could avoid Committee stage and move rapidly towards Report and Third Reading, to make this Bill a reality.

As the right reverend Prelate said, children are at risk for the want of this Bill and we have the regulator in the wings.

As the noble Baroness, Lady Kidron, said, we could simply include this in the online safety Bill, but an 11 year-old will be an adult by 2024. As she asked, how many children will be harmed in the interim? The noble Lord, Lord Griffiths of Burry Port, said that watertight protection means mandatory standards for age assurance. This is a vital brick in the wall. The noble Lord, Lord Lipsey, said that he had heard every excuse from government for not implementing legislation—I think I am with him on that—and also said that this Bill is absolute proof against that. Let us give it the fairest wind we possibly can.

by Tim Clement-Jones