Classical Music
Lord Parkinson of Whitley Bay Excerpts(5 months, 1 week ago)
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The Earl of Clancarty
To ask His Majesty’s Government whether they intend to take steps to improve support for classical music, particularly for orchestras and opera companies.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, opera, orchestras and classical music enrich our lives. Through its investment programme, Arts Council England is spending almost £60 million per year on classical music and opera. More opera organisations are being funded than previously, and support for orchestral organisations has increased in both number and value, with nearly two dozen sharing over £21 million a year. We have also extended the higher rate of cultural tax reliefs, including orchestra tax relief.
The Earl of Clancarty (CB)
My Lords, many of us will no doubt have had recent listening experiences which give us hope that there is a future for classical music in this country. But will the Minister accept that this excellence does not describe the wider narrative of declining educational opportunities and funding cuts, which have led inevitably to a necessarily costlier art form being under considerable threat wherever it is located? Among numerous concerns, can a way can be found to retain orchestra tax relief claims on EEA expenditure as, on top of Brexit, this may otherwise prove disastrous for touring in Europe?
Lord Parkinson of Whitley Bay (Con)
Since it was introduced in 2016, £75 million has been paid out through orchestra tax relief. We have extended it at the headline rates for another two years and are grateful to the Association of British Orchestras and many others who have joined the consultation since that was announced in the Budget. Since our departure from the EU, we are of course bringing our tax reliefs in line with World Trade Organization rules. I am grateful for the collaboration we have had. We have made changes on connected party transactions and the going concern rule, and we are keen to continue discussion with orchestras to ensure that they know that only 10% of orchestral output needs to be produced in this country; they will still be able to tour around the world, so that people overseas as well as here may enjoy their brilliant work.
Lord Blunkett (Lab)
My Lords, I wonder whether the Minister will reflect, along with the Arts Council, on the situation in the north of England. With the move of English National Opera to Manchester, the Hallé Orchestra being in Manchester and the Liverpool Philharmonic patently being in Liverpool, east of the Pennines is somewhat bereft of a critical mass, which can be absolutely crucial in encouraging young people to come forward into this critical cultural area. Perhaps the Minister will talk to the Arts Council about this.
Lord Parkinson of Whitley Bay (Con)
Well, I have had the pleasure of hearing both the Royal Liverpool Philharmonic and the Hallé perform. Of course, as the noble Lord may know, English National Opera has this week announced its intention to base itself in Greater Manchester, as well as continuing its season at the London Coliseum. It is doing so partly because of the great strength of classical music across the north-west of England. The Arts Council, of course, is spending its money more equitably across the country. More organisations are being funded than ever before in more parts of the country, and we want to see people wherever they live benefiting from world-class cultural and artistic output.
Baroness Fleet (Con)
My Lords, my noble friend will know that orchestras need a strong pipeline of talent. This will be achieved only when high-quality music education is available for all across all the country, and particularly those with potential. The national plan for music education, which I chaired, will help—when it is finally implemented. Many schools and music teachers are already doing remarkable work, but they would certainly welcome some encouragement. When can we expect to see senior members of government cheering our brilliant orchestras, choirs and young musicians from the front rows of our concert halls, and in schools?
Lord Parkinson of Whitley Bay (Con)
I am delighted to tell my noble friend that last night, while some of us were voting on four regret amendments, our right honourable friend the Chancellor was at the Royal Festival Hall enjoying the London Philharmonic Orchestra performing Beethoven’s “Emperor” Concerto and Rimsky-Korsakov’s “Scheherazade”, which he tells me was a fantastic production. So, I hope that my noble friend will be glad to hear that members of His Majesty’s Government do go and enjoy the output of our world-class orchestras. I commend her for the work she did on the national plan for music education, which will ensure that more people from this country are able to forge careers and continue producing that wonderful output which makes us all very proud.
Lord Wallace of Saltaire (LD)
My Lords, anyone who has heard the annual performance of “Messiah” by the Halifax Choral Society, with the Black Dyke Mills Band and orchestra, will know that we are not entirely without some high-quality music in Yorkshire. The classical music industry is a net surplus invisible exporter for this country, and it is absolutely vital that we keep supporting it. I declare an interest as a former chair of Voces8, which spends quite a lot of time touring on the continent and in North America. Are the Government now within sight of getting rid of these bilateral arrangements, which do not really provide for orchestras and others to do proper tours of the continent—all the way from school orchestras such as the London Schools Symphony Orchestra, which is superb, to classical orchestras as such?
Lord Parkinson of Whitley Bay (Con)
We are tripling funding for the Music Export Growth Scheme to more than £3 million over the next two years, which will enable more touring artists to break into new international markets. We are also expanding our Export Support Service to further help creative exporters, including touring musicians. We want our musicians to tour the world so that their work can be enjoyed overseas, just as it is here in the UK—including in Yorkshire.
Lord Berkeley of Knighton (CB)
May I ask the Minister to comment at a more grass-roots level? In the last few months, we have lost the Dartington summer festival, which is educational as well; we have lost Oxford Brookes University teaching music; and we have lost a lot of the Cheltenham Festivals’ work. I declare my interest as an ex-director of the Cheltenham international festival of music. I was there for 10 years and commissioned works—more than 100—as my successors continue to do. Not only are we losing this commissioning opportunity, which is so important for young composers, but local audiences in places that identify as being under-resourced in music are losing out.
Lord Parkinson of Whitley Bay (Con)
On a recent visit to Devon, I had the opportunity to meet the new chief executive of Dartington Trust. The noble Lord is right to point to the brilliant work done by Cheltenham Festivals in his time and subsequently. Arts Council England has maintained its level of funding for Cheltenham Festivals at £217,000 per year, but I would be very happy to meet people from Cheltenham Festivals as well as others.
Baroness McIntosh of Hudnall (Lab)
The Minister will be aware that opera and classical music still suffer from a quite widespread perception that they are not for anything other than a very small audience. This makes fundraising extremely difficult for small organisations such as OperaUpClose, with which I declare a personal connection, which are trying to take high-quality music and opera into communities where they are not generally available and to engage them in that work. By the way, they are also commissioning young composers. Can the Government encourage a better fundraising environment for those companies, particularly by encouraging, for example, match-funding schemes such as the Big Give, which closed this week?
Lord Parkinson of Whitley Bay (Con)
I congratulate OperaUpClose, which is one of the new operatic organisations that have joined the Arts Council national portfolio. I met another, Pegasus Opera, which is doing great work as well in encouraging new audiences and new compositions so that opera can continue to be a rich art form that people of all backgrounds get to enjoy. The noble Baroness is right that private philanthropy as well as public subsidy plays an important part. My right honourable friend the Secretary of State and I have had meetings with arts organisations and funding bodies to look at ways in which we might be able to create further incentives for giving. But I hope that people will be able to leverage their part in the national portfolio through the Arts Council—not just to spend the public subsidy that is given but also to be part of that network, which they now are.
Lord Vaizey of Didcot (Con)
My Lords, leaving aside the extreme concern that the Chancellor is favouring EU composers over British composers—I hope that nobody tells the Prime Minister that—may I ask my noble friend what he is doing to increase diversity in classical music? Will he join me in congratulating the Chineke! Orchestra on its success and all it has done to increase diversity in our orchestras, and perhaps illuminate us regarding the discussions he has had with the Arts Council to continue this impressive progress?
Lord Parkinson of Whitley Bay (Con)
The Arts Council did a very valuable study on diversity in classical music—diversity in every form. As I say, companies such as Pegasus Opera are doing important work in bringing people from diverse backgrounds into art forms that we can all enjoy, as are the Chineke! Orchestra and many others. Through its new national portfolio, the Arts Council is investing in more companies and organisations in more parts of the country than ever before, including those led by a more diverse range of people.
Dormant Assets (Distribution of Money) (England) Order 2023
Lord Parkinson of Whitley Bay Excerpts(6 months, 3 weeks ago)
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Lord Parkinson of Whitley Bay
That the draft Order laid before the House on 11 September be approved. Considered in Grand Committee on 24 October.
Dormant Assets (Distribution of Money) (England) Order 2023
Lord Parkinson of Whitley Bay Excerpts(6 months, 3 weeks ago)
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Lord Parkinson of Whitley Bay
That the Grand Committee do consider the Dormant Assets (Distribution of Money) (England) Order 2023.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I am pleased to move this order, which was laid before the House in draft on 11 September. The order names community wealth funds as a cause to receive dormant assets money, in addition to the existing three causes in the dormant assets scheme: youth, financial inclusion and social investment wholesalers.
To explain why the order is being made and a new cause is being included in the scheme, it may be helpful if I outline the background. Led by the financial services industry and backed by the Government, the dormant assets scheme is a brilliant example of what can be achieved when the public and private sectors come together to address some of the biggest challenges facing people in this country. The scheme’s priority is always to ensure that customers are protected and able to reclaim what they are owed. Where the asset owner cannot be found, the scheme has allowed hundreds of millions of pounds that have been lying idle to be used to support important social and environmental causes across the UK.
Since it began over a decade ago, the scheme has unlocked almost £1 billion to be spent across the United Kingdom. In England, this has sought to address the barriers that young people from deprived and disadvantaged backgrounds face when trying to gain employment. I am pleased to say that over 22,000 young people across the country have been supported to find meaningful work, thanks to the scheme. It has also supported 150,000 people with no-interest loans totalling over £150 million. This has kept honest and hard-working people out of the clutches of dangerous and manipulative loan sharks and saved them over £50 million in interest payments, ensuring that those who are financially excluded are given a hand up to get back on track.
The scheme has also helped to scale up the social investment market by more than tenfold, giving 5,000 organisations such as charities and social enterprises the investment needed to ensure they can continue to serve the communities and people who need it most. Soon dormant assets funding will also be about supporting communities across the country, placing decision-making into the hands of local residents to enable them to invest in what matters most to them and in a way that works best for their community.
Last year, I had the pleasure of leading what is now the Dormant Assets Act through your Lordships’ House in its final stages. It is thanks to the passage of this legislation that the Government were able to give people and participants in the scheme a voice in deciding how we should use dormant assets funding in England. Last year’s public consultation made it clear that the scheme enjoys widespread support from the public, and it is wonderful to see how this unique policy is bringing people and organisations together.
This order makes good on the Government’s commitment that the scheme will support the four causes that people told us matter most to them. By supporting youth, financial inclusion and education, social investment wholesalers and community wealth funds, we can ensure that the scheme is capable of delivering meaningful change for the next decade and beyond, providing support for those who need it most across the country. I commend the order to the Grand Committee and beg to move.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I thank the Minister for presenting this instrument, which is subject to affirmative approval. I declare an interest as a member of your Lordships’ Secondary Legislation Scrutiny Committee.
I welcome the use of dormant funds, particularly being ploughed back into local communities for the benefit of those communities. When I was a Minister in the Northern Ireland Executive several years ago, we set up an arrangement for dormant funds there. It took about 12 years to be realised for investment in local communities, but there is no doubt that they provide that added resource when other resources may not be available to underpin community initiatives.
Thanks to the pioneering investment of dormant assets over the last decade and the work of organisations such as Big Society Capital, Access—the Foundation for Social Investment—and many others, social investment in the UK has grown more than tenfold in 10 years, with £9.4 billion invested into charities and social enterprises. This includes £1.8 billion committed to social enterprises and charities in 2022 alone, which has gone into over 1,310 projects delivering measurable social impact such as affordable homes, community food banks and tech start-ups tackling mental health.
There is no doubt, and we have all seen examples, that social investment has had a transformative effect on communities most in need. Around 43% of social investment deals have gone to levelling up priority 1 areas. Perhaps that is one area where levelling up has worked. But the next wave of dormant assets—I think the Minister was referring to that in talking about the initial legislation and this subsequent legislation on community wealth funds—will build on these foundations and take social investment further. A group of leading social enterprise, voluntary sector and social investment organisations have mapped out a plan for how best to do it. Known as the community enterprise growth plan, it proposes using dormant assets to deliver three proven interventions. Only yesterday, I talked to one of those organisations, and they have exciting initiatives for local communities through the investment of this resource.
There is no doubt that this plan has a number of benefits. It is a proposal to create jobs, boost growth and address regional inequalities, targeting communities affected by long-term economic decline. The plan uses existing systems, which would allow capital to begin flowing quickly and deliver results. Crucially, through social investment, the money invested is repaid and recycled, enabling funds to be used again and again to grow future support.
I am well aware that the Minister brought the initial legislation through your Lordships’ House, but I would like to be assured, as I am sure other noble Lords present would, that the dormant assets fund can continue into perpetuity for whatever that perpetuity means, because it brings much-needed benefits alongside government and other community resources. I would like to see it continue and to receive assurances to that effect.
Lord Bassam of Brighton (Lab)
My Lords, like everybody else, I am grateful to the Minister for the way in which he introduced this. It is a short SI. That has not stopped noble Lords this afternoon asking a plenitude of questions, but all of them are highly relevant. Many of them are repeats from when we discussed the Bill back in 2021-22, but they are nevertheless highly relevant today.
This is of huge importance to community organisations and individuals who will benefit from the funding. I thought that the testimony of the noble Baroness, Lady Ritchie, was very good on that point because she gave very good examples of the benefits of using the funds in the way in which they are used. I am sure that the Minister will fondly remember his many hours taking the Bill through the House; I have a feeling that it was his first Committee, and he did it very well and with tact and skill.
During the passage of the Bill, we had a lot of discussion about the potential inclusion of community wealth funds as beneficiaries of the dormant asset moneys. In the best tradition of the Lords, there was cross-party support, including in particular from the noble Lord, Lord Hodgson of Astley Abbotts, the now-retired Bishop of Newcastle, and, speaking on her behalf, the right reverend Prelate the Bishop of Ely. That collaboration gave rise, as I recall, to an amendment that many of us signed, which led to a shift in the position of the Government. It was initially resisted by the Minister, who stressed that
“current evidence for community wealth funds, as well as concrete designs for how they would operate, are relatively sparse”.
He did, however, go on to say that
“there is more work to be done in this area before a commitment can firmly be made”. [Official Report, 16/11/21; col. 177.]
In a refreshing break from tradition, the Government have followed through with their promise. I congratulate them on that, because it is a very important and significant one.
Based on the outcomes of their consultation, which saw 71% of respondents agree or strongly agree that community wealth funds should be included as a cause for dormant assets, they have rightly included them on the list in this instrument. This is, without doubt, a very exciting time for those involved in the creation and scaling up of community wealth funds. However, the Minister will know that some in the sector are concerned by the direction indicated in the recent technical consultation document published jointly by DCMS and DLUHC. We understand the need to build the evidence base for community wealth funds. Limiting their work to smaller towns of fewer than 20,000 people appears counterintuitive to us—I will not say counterproductive. Some of the most deprived areas across our country have populations larger than 20,000, yet for a variety of reasons they lack the type of social infrastructure that these funds could provide. The noble Lord, Lord Hodgson, gave a very good case example of where that sort of community capacity can be missing.
Yes, we need to build the evidence base for community wealth funds over time, but I hope the department will consider whether this rather arbitrary threshold is wise. If the pilots are run in the wrong areas or to the wrong criteria, we may never see an accurate picture of the role these funds can play in improving communities and people’s lives and livelihoods. Will the department reflect further on this? This design principle is not even subject to consultation, and I think that needs to be given some urgent thought. At the least, we would like to see the Minister prepared to welcome views on the point and the issue.
While we are glad that community wealth funds have been named as a cause, we are equally pleased to see the existing three causes keep their place in the list. Dormant assets have funded a variety of important services for young people and those with debt or financial inclusion issues, which the Minister referenced. It is vital that their work is able to continue, particularly at a time where our economy continues to struggle and inflation remains a problem for people up and down the country. The Minister will be familiar with the work of organisations such as Big Society Capital, Local Trust and so on, that fall under the third category on the list. As I am sure the Minister is well aware, Big Society Capital has come up with a community enterprise growth plan, which aims to put dormant asset funds to even better use by leveraging additional private capital and multiply the impact that the initial investment generates. While I understand that the Minister will not be able to announce individual allocations today, will he commit to looking closely at least at that plan?
Some questions will remain over elements of the Government’s approach, but we are generally pleased to support this SI. As I have already noted, there is cross-party support for the scheme, and we should harness that energy. At the same time, there are legitimate concerns over particular aspects of the policy. Ministers like to talk about levelling up but, despite the fantastic work of social enterprises across the country, it is not clear that we are yet seeing it on the ground. With that in mind, I hope the Minster can commit to further discussions in the months to come.
For me, the dormant assets scheme is an original great Labour success story. It started in 2008 and was authored by Gordon Brown. The current Government have taken it a stage further and broadened the range of options for paying into that fund. It has put millions of pounds to good use around the country. We are happy to support the expansion of the asset categories through the 2022 Act. Once the finer details have been ironed out, we hope that even more will soon go to good causes.
A number of questions that colleagues asked were particularly important, such as on additionality. Ensuring the restoration of money to the right place is important. The size of the reserve fund seems questionable. We must ensure that we get the right distribution of funds and that they deliver additionality, rather than just paying for things that would otherwise be paid for by government programmes through local government.
This has been an impressive and useful debate. I hope this is an issue that we can keep at the forefront of the House’s consideration. Perhaps we could return to the point about monitoring and analysing the impact at some stage in some form or other. It might be the sort of thing that could be the subject of a Lords’ report, because this is an exciting opportunity. It is all about building capacity, providing opportunities and getting funds to communities that most require them.
Lord Parkinson of Whitley Bay (Con)
I certainly agree with the noble Lord, Lord Bassam of Brighton, that this has been an important and useful debate. I am very grateful to all noble Lords who have contributed to it. I am grateful to the noble Baroness, Lady Ritchie of Downpatrick, and her fellow members of the Joint Committee on Statutory Instruments for the work they have done in this regard. I reassure her that we do indeed want this scheme to continue long into the future. The expansion of the dormant assets scheme is expected to unlock a further £738 million for England alongside the almost £1 billion which has already been unlocked, as I mentioned in my opening contribution. We are committed to ensuring the success of this expansion so that ample funding can be distributed across the four causes. That is what the primary legislation—the 2022 Act—and the secondary legislation intend to promote and protect.
I can also reassure the noble Lords, Lord Davies of Brixton and Lord Addington, and other noble Lords who underlined the importance of the additionality principle that it will be adhered to. Ensuring additionality is an essential criterion of the dormant assets scheme. The Government are committed to ensuring that a community wealth fund is designed and delivered in a way which does not replace or undercut central or local government funding. We specifically sought views on how to embed the principle of additionality in the design of a community wealth fund in the technical consultation, which closed on 19 October and which we are working our way through at the moment. That will include ensuring that any interventions provided to communities to support their decision-making will exclude statutory duties. We will work with the National Lottery Community Fund as the main distributor. Lottery funds are also subject to the additionality principle, so the National Lottery Community Fund already has its own policies and practices in place to maintain that important principle.
The noble Lord, Lord Davies, asked about the pensions dashboard. Ensuring that efforts are made to reunite dormant assets funding with its rightful owner remains the first priority of the scheme. A number of ongoing initiatives are aimed at preventing pension assets reaching dormancy, including pensions dashboards, which will enable people to access their information online, securely and all in one place.
Royal Albert Hall Bill [HL]
Lord Parkinson of Whitley Bay Excerpts(7 months ago)
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The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
I am very grateful to my noble friend Lord Harrington of Watford for introducing his Bill so clearly and, indeed, for the work that he, his fellow trustees, and all the Royal Albert Hall’s staff and supporters do to protect and champion this cherished institution.
Noble Lords have highlighted many ways in which the hall has played an important part in their lives, and in the life of our nation. I know that if my noble friend Lord Lexden had been a participant in the debate, rather than being on the Woolsack for the previous hour of it, he would have mentioned the many historic events to which it has played host. For many years, the Conservative Women’s Organisation held packed-out meetings there. Winston Churchill spoke there on 30 occasions; the first was as a member of the Liberal Government in 1909. The noble Baroness, Lady Barker, may be dismayed to hear that his 10,000-strong audience were all men, the Liberal Party having banned women for fear that suffragettes might interrupt and campaign for votes for women. But, reflecting the long-standing and important neutrality of the hall, it had in fact played host to a meeting of the Women’s Social and Political Union the evening before, some members of which attempted to hide overnight in order to disrupt the meeting. Sadly, they were discovered in the small hours.
As Minister for Arts and Heritage, I have the pleasure of visiting the hall very regularly, from the Proms to the Olivier Awards, and most recently on Monday evening for a delightful concert hosted by Classic FM Live. Like other noble Lords, I would not hesitate to call the hall a true icon in our cultural life. It is for this reason I am not surprised to see so many noble Lords taking an interest in this Bill and in the governance of the hall.
As noble Lords will know, in relation to private Bills, the Government do not generally adopt a position unless the Bill contains provisions which are considered to be contrary to public policy. We take the view that the Bill does not contain any such provisions; therefore, as is the usual form with private Bills, the Government neither support nor oppose it.
Noble Lords have taken the opportunity to ask a number of questions. The noble Viscount, Lord Chandos, referred to what he called cuts by the Arts Council. As he will recall from the excellent debate we had at his instigation earlier this year, the amount distributed by the Arts Council in the new portfolio is higher than in the previous one. It benefits from an additional £43 million of grant in aid secured by my department at the spending review. Thanks to that, and increases from the National Lottery—
Viscount Chandos (Lab)
The cuts in real terms since 2010 of the Arts Council’s grant in aid are, I believe, about 40%.
Lord Parkinson of Whitley Bay (Con)
Thanks to increases from the National Lottery as well, the Arts Council is spending £30 million a year additionally in this portfolio than in the last. The challenges of inflation certainly do beset many cultural institutions, and I speak to them about it, but I did want to correct what the noble Viscount said there.
More pertinently, the noble Viscount mentioned the decisions by previous Attorneys-General not to refer the matter to the tribunal. I cannot speak for decisions made by previous Attorneys-General, but the Attorney-General, as parens patriae, is the constitutional defender of charity and charitable property. She is required to prepare a report for the other place on certain private Bills affecting charitable interests. If she is asked to report on this Bill in another place, she will of course make her views known.
My noble friend Lady Stowell of Beeston and others referred to the loan which the Royal Albert Hall got through the unprecedented culture recovery fund. That £1.5 billion of funding provided assistance to more than 5,000 cultural institutions across the country during the challenging period of the pandemic. It was emergency support to help them through those difficult months, and no conditions were imposed upon it other than to make sure that where there were loans, they would be repaid. It was not designed as an instrument of wider policy, but as an instrument of assistance to organisations that needed it.
Other noble Lords have—
Baroness Barker (LD)
I wonder whether the Minister would agree with me on this point. All that he said about that loan is absolutely true, and the loan is repayable, I believe, at 2%. Does he not understand the point that some of us are trying to make that, for a member of the council of the Royal Albert Hall, which has to take decisions about the repayment of that loan, it is also possible for that same person to be the owner of a business which is conducted within the Royal Albert Hall, and that therefore they might well take the view that paying back to the Government at a low rate of 2% is better than having to pay back other loans at a higher rate? Therefore, what is actually happening is that something that was proposed for a particular public institution is actually benefiting private companies in a way that was not envisaged.
Lord Parkinson of Whitley Bay (Con)
The cultural recovery fund assisted more than 5,000 organisations across the country of different sizes, constitutions and setups. Some were given grants, while others were given loans, as the noble Baroness said, at a favourable rate to try to assist them at a time when the pandemic made the running of those businesses difficult. Where there are loans, the Government are clear that they must be repaid, but it is for institutions to make the decisions about how they run themselves in the light of that.
Noble Lords took the opportunity to raise a number of broader issues, which I am sure my noble friend Lord Harrington will want to reflect on when he concludes in a moment. Indeed, he may wish to reflect on them as the Bill proceeds to the Private Bill Committee.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsTuesday 19th September 2023
(8 months ago)
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Lord Parkinson of Whitley Bay
That this House do not insist on its Amendment 17 and do agree with the Commons in their Amendments 17A and 17B in lieu.
“(e) the extent to which the design of the service, in particular its functionalities, affects the level of risk of harm that might be suffered by children, identifying and assessing those functionalities that present higher levels of risk, including functionalities—
(i) enabling adults to search for other users of the service (including children), or
(ii) enabling adults to contact other users (including children) by means of the service;”
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I beg to move Motion A and, with the leave of the House, I shall also speak to Motions B to H.
I am pleased to say that the amendments made in your Lordships’ House to strengthen the Bill’s provisions were accepted in another place. His Majesty’s Government presented a number of amendments in lieu of changes proposed by noble Lords, which are before your Lordships today.
I am grateful to my noble friend Lady Morgan of Cotes for her continued engagement on the issue of small but high-risk platforms. The Government were happy to accept her proposed changes to the rules for determining the conditions that establish which services will be designated as category 1 or 2B services. In making the regulations, the Secretary of State will now have the discretion to decide whether to set a threshold based on either the number of users or the functionalities offered, or on both factors. Previously, the threshold had to be based on a combination of both.
It remains the expectation that services will be designated as category 1 services only where it is appropriate to do so, to ensure that the regime remains proportionate. We do not, for example, expect to apply these duties to large companies with very limited functionalities. This change, however, provides greater flexibility to bring smaller services with particular functionalities into scope of category 1 duties, should it be necessary to do so. As a result of this amendment, we have also made a small change to Clause 98—the emerging services list—to ensure that it makes operational sense. Before my noble friend’s amendment, a service would be placed on the emerging services list if it met the functionality condition and 75% of the user number threshold. Under the clause as amended, a service could be designated as category 1 without meeting both a functionality and a user condition. Without this change, Ofcom would, in such an instance, be required to list only services which meet the 75% condition.
We have heard from both Houses about the importance of ensuring that technology platforms are held to account for the impact of their design choices on children’s safety. We agree and the amendments we proposed in another place make it absolutely clear that providers must assess the impact of their design choices on the risk of harm to children, and that they deliver robust protections for children on all areas of their service. I thank in particular the noble Baroness, Lady Kidron, the noble Lords, Lord Stevenson of Balmacara and Lord Clement-Jones, my noble friend Lady Harding of Winscombe and the right reverend Prelate the Bishop of Oxford for their hard work to find an acceptable way forward. I also thank Sir Jeremy Wright MP for his helpful contributions to this endeavour.
Noble Lords will remember that an amendment from the noble Baroness, Lady Merron, sought to require the Secretary of State to review certain offences relating to animals and, depending on the outcome of that review, to list these as priority offences. To accelerate protections in this important area, the Government have tabled an amendment in lieu listing Section 4(1) of the Animal Welfare Act 2006 as a priority offence. This will mean that users can be protected from animal torture material more swiftly. Officials at the Department for Environment, Food and Rural Affairs have worked closely with the RSPCA and are confident that the Section 4 offence, unnecessary suffering of an animal, will capture a broad swathe of illegal activity. Adding this offence to Schedule 7 will also mean that linked inchoate offences, such as encouraging or assisting this behaviour, are captured by the illegal content duties. I am grateful to the noble Baroness for raising this matter, for her discussions on them with my noble friend Lord Camrose and for her support for the amendment we are making in lieu.
To ensure the speedy implementation of the Bill’s regime, we have added Clauses 116 to 118, which relate to the disclosure of information by Ofcom, and Clauses 170 and 171, which relate to super-complaints, to the provisions to be commenced immediately on Royal Assent. These changes will allow Ofcom and the Government to hold the necessary consultations as quickly as possible after Royal Assent. As noble Lords know, the intention of the Bill is to make the UK the safest place in the world to be online, particularly for children. I firmly believe that the Bill before your Lordships today will do that, strengthened by the changes made in this House and by the collaborative approach that has been shown, not just in all quarters of this Chamber but between both Houses of Parliament. I beg to move.
Lord Clement-Jones (LD)
My Lords, I thank the Minister very warmly for his introduction today. I shall speak in support of Motions A to H inclusive. Yes, I am very glad that we have agreement at this final milestone of the Bill before Royal Assent. I pay tribute to the Minister and his colleagues, to the Secretary of State, to the noble Baronesses, Lady Morgan, Lady Kidron and Lady Merron, who have brought us to this point with their persistence over issues such as functionalities, categorisation and animal cruelty.
This is not the time for rehearsing any reservations about the Bill. The Bill must succeed and implementation must take place swiftly. So, with many thanks to the very many, both inside and outside this House, who have worked so hard on the Bill for such a long period, we on these Benches wish the Bill every possible success. He is in his place, so I can say that it is over to the noble Lord, Lord Grade, and his colleagues at Ofcom, in whom we all have a great deal of confidence.
Lord Stevenson of Balmacara (Lab)
My Lords, I too thank the Minister for his swift and concise introduction, which very carefully covered the ground without raising any issues that we have to respond to directly. I am grateful for that as well.
The noble Lord, Lord Clement-Jones, was his usual self. The only thing that I missed, of course, was the quotation that I was sure he was going to give from the pre-legislative scrutiny report on the Bill, which has been his constant prompt. I also think that the noble Baroness, Lady Finlay, was very right to remind us of those outside the House who we must remember as we reach the end of this stage.
Strangely, although we are at the momentous point of allowing this Bill to go forward for Royal Assent, I find that there is actually very little that needs to be said. In fact, everything has been said by many people over the period; trying to make any additional points would be meretricious persiflage. So I will make two brief points to wind up this debate.
First, is it not odd to reflect on the fact that this historic Parliament, with all our archaic rules and traditions, has the capacity to deal with a Bill that is regulating a technology which most of us have difficulty in comprehending, let alone keeping up with? However, we have done a very good job and, as a result, I echo the words that have already been said; I think the internet will now be a much safer place for children to enjoy and explore, and the public interest will be well served by this Bill, even though we accept that it is likely to only be the first of a number of Bills that will be needed in the years to come.
Secondly, I have been reflecting on the offer I made to the Government at Second Reading, challenging them to work together with the whole House to get the best Bill that we could out of what the Commons had presented to us. That of course could have turned out to be a slightly pointless gesture if nobody had responded positively—but they did. I particularly thank the Minister and the Bill team for rising to the challenge. There were problems initially, but we got there in the end.
More widely, there was, I know, a worry that committing to working together would actually stifle debate and somehow limit our crucial role of scrutiny. But actually I think it had the opposite effect. Some of the debates we had in Committee, from across the House, were of the highest standard, and opened up issues which needed to be resolved. People listened to each other and responded as the debate progressed. The discussion extended to the other place. It is very good to see Sir Jeremy Wright here; he has played a considerable role in resolving the final points.
It will not work for all Bills, but if the politics can be ignored, or at least put aside, it seems to make it easier to get at the issues that need to be debated in the round. In suggesting this approach, I think we may have found a way of getting the best out of our House —something that does not always occur. I hope that lesson can be listened to by all groups and parties.
For myself, participating in this Bill and the pre-legislative scrutiny committee which preceded it has been a terrific experience. Sadly, a lot of people who contributed to our discussions over that period cannot be here today, but I hope they read this speech in Hansard, because I want to end by thanking them, and those here today, for being part of this whole process. We support the amendments before the House today and wish good luck to the noble Lord, Lord Grade.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am very conscious that this is not the end of the road. As noble Lords have rightly pointed out in wishing the Bill well, attention now moves very swiftly to Ofcom, under the able chairmanship of the noble Lord, Lord Grade of Yarmouth, who has participated, albeit silently, in our proceedings before, and to the team of officials who stand ready to implement this swiftly. The Bill benefited from pre-legislative scrutiny. A number of noble Lords who have spoken throughout our deliberations took part in the Joint Committee of both Houses which did that. It will also benefit from post-legislative scrutiny, through the Secretary of State’s review, which will take place between two and five years after Royal Assent. I know that the noble Lords who have worked so hard on this Bill for many years will be watching it closely as it becomes an Act of Parliament, to ensure that it delivers what we all want it to.
The noble Lord, Lord Stevenson, reminded us of the challenge he set us at Second Reading: to minimise the votes in dissent and to deliver this Bill without pushing anything to ping-pong. I think I was not the only one in the Chamber who was sceptical about our ability to do so, but it is thanks to the collaborative approach and the tone that he has set that we have been able to do that. That is a credit to everybody involved.
Lord Parkinson of Whitley Bay
That this House do not insist on its Amendment 20, to which the Commons have disagreed for their Reason 20A.
Lord Parkinson of Whitley Bay
That this House do not insist on its Amendment 22, to which the Commons have disagreed for their Reason 22A.
Lord Parkinson of Whitley Bay
That this House do not insist on its Amendment 81 and do agree with the Commons in their Amendments 81A, 81B and 81C in lieu.
“(c) the extent to which the design of the service, in particular its functionalities, affects the level of risk of harm that might be suffered by children, identifying and assessing those functionalities that present higher levels of risk, including a functionality that makes suggestions relating to users’ search requests (predictive search functionality);”
Lord Parkinson of Whitley Bay
That this House do not insist on its Amendment 148 and do agree with the Commons in their Amendment 148A in lieu.
“Animal welfare
32A An offence under section 4(1) of the Animal Welfare Act 2006 (unnecessary suffering of an animal).”
Lord Parkinson of Whitley Bay
That this House do agree with the Commons in their Amendment 182A.
Lord Parkinson of Whitley Bay
That this House do agree with the Commons in their Amendments 349A and 349B.
“(qa) sections 104 to 106;”
Lord Parkinson of Whitley Bay
That this House do agree with the Commons in their Amendments 391A and 391B.
Commonwealth Games
Lord Parkinson of Whitley Bay Excerpts(8 months, 1 week ago)
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Lord McConnell of Glenscorrodale
To ask His Majesty’s Government what assessment they have made of the recent decisions by the governments of (1) Victoria, Australia, and (2) Alberta, Canada, to withdraw from bids to host the Commonwealth Games in 2026 and 2030.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, His Majesty’s Government recognise the great value of major sporting events such as the Commonwealth Games, particularly with the United Kingdom having hosted the Games twice in the past decade. Last year’s Games in Birmingham demonstrated the power of sport in bringing people together and building a foundation for a wide-ranging legacy that will deliver benefits for many years to come. We therefore urge the Commonwealth Games Federation to work towards a sustainable resolution for 2026 and 2030.
Lord McConnell of Glenscorrodale (Lab)
I thank the Government very much for their urgency in trying to ensure that we find a solution: I hope that we see that in the weeks and months to come. The Commonwealth Games are a fabulous exhibition of the benefit of the Commonwealth and the coming together of many nations from right across the globe. They are one of the most popular and successful multisport international events that we see. In both Birmingham and Glasgow in the past decade, we have seen not just the sporting benefits but the economic benefits of the Games to the cities and the wider regions. So, will the Government work with the national teams of Scotland, England, Wales and Northern Ireland to make sure that they rule out no options in order to deal with this immediate emergency of the Games not having a host for 2026? Will they also work with other Governments in the Commonwealth and with the Commonwealth Games Federation to make sure that, in the long term, the Commonwealth Games are able to be hosted by countries that are not the large, richer, white countries of the Commonwealth but are other countries in the Commonwealth, so that “commonwealth” goes back into the Commonwealth Games?
Lord Parkinson of Whitley Bay (Con)
Yes, we absolutely agree with the noble Lord. It is important that the Games remain a truly global Games. He is right to point to the economic benefits as well as the many other benefits that hosting the Games can accrue; he will know this very well, of course, from his own involvement with the successful Glasgow Games in 2014. Our interim assessment of the Games in Birmingham last year shows that they added £870 million of GVA to the UK economy, more than half of that going to the West Midlands, and we look forward to the fuller economic analysis coming soon. My right honourable friend the Sports Minister has met the Commonwealth Games Federation to talk about the urgency with which it is looking at this issue and we are keen for it to find a resolution.
Lord Howell of Guildford (Con)
My Lords, the noble Lord, Lord McConnell, is quite right. Will the Government work very closely with Marlborough House and the secretariat to ensure that there is momentum behind recovery, and we do not let the Games just die? Will his colleagues bear in mind that the Commonwealth network is in many ways our own gateway to the great markets of Asia and Africa, as well as a bulwark against Chinese domination in the developing world? We need them just as much as they need us.
Lord Parkinson of Whitley Bay (Con)
My noble friend, who is a strong supporter of the Commonwealth, makes a very valuable point about the Games’ geopolitical importance as well the great fun they involve for everyone taking part and the legacy they can bring in terms of sports participation and economic benefit. We are speaking to the Commonwealth Games Federation, which makes the decision here, but it is an issue we will of course raise with the Commonwealth at every appropriate level.
Baroness Grey-Thompson (CB)
My Lords, I declare an interest as chair of Sport Wales and I also competed at three Commonwealth Games at the beginning, middle and end of my career. We should not forget that the Manchester inclusive Games played a big part in us winning 2012. What assessment has been made of the impact on disability sport of potentially losing the Games, as they do have a significant role to play in developing talented British athletes?
Lord Parkinson of Whitley Bay (Con)
Your Lordships’ House benefits from sports people who have competed at every level, and I am glad that the noble Baroness has made her point. We hope that we do not lose the Games; we are working with the Commonwealth Games Federation to ensure that the Games go ahead and there is a sustainable resolution for both 2026 and 2030. She is right to point to their importance in the sporting pipeline for people of all abilities, and that is why we would like to see them continue.
Lord Razzall (LD)
My Lords, I accept that this is not the direct responsibility of the Government, except Chancellor as a leading member of the Commonwealth. Does the Minister believe that this disaster may be the responsibility of the Commonwealth Secretariat, which has not handled it terribly well, or does he believe that the Games have become a financial extravaganza, way beyond the days when my noble friend Lord Campbell participated? May I cheekily ask whether he believes it would help if the Commonwealth Games followed the recent proposal of the Olympic Committee to add cricket to the roster of games played?
Lord Parkinson of Whitley Bay (Con)
The Governments of Alberta and Victoria have cited cost as a reason for their decision. That is curious in the light of Birmingham’s experience, where the Games came in £70 million under budget and the Government gave that money to the West Midlands Combined Authority to spend on a variety of important initiatives, including cultural and sporting ones, in that part of the UK. So it is possible to deliver a Games that everyone can enjoy, as they did in Birmingham, on time and on budget, and we are very happy to share the lessons of Birmingham’s successful hosting with those who might want to bid. My right honourable friend the Sports Minister has been speaking to the federation about learning those lessons.
Lord Bassam of Brighton (Lab)
My Lords, this has happened a few times before. Can the Minister ensure that His Majesty’s Government do more to facilitate discussions on the future direction of the competition? Does it need to be reinvented somehow or does more thought need to be given to reducing the costs to hosts? Would it perhaps be more sustainable if the frequency of the Games was varied to match economic needs? Thinking about my own city, which has finally entered the Europa League this year, there are clear economic benefits demonstrated from hosting events like that. Are the Government doing enough to promote participation in wider international sporting competitions so that we can reap the benefit of the economic boost they bring to our country?
Lord Parkinson of Whitley Bay (Con)
Yes, we fully recognise the important economic boost that hosting major sporting events can bring. Sport is estimated to be worth over £38 billion a year to our economy. The hosting of the women’s Euros in 2022 generated economic activity of £81 million across the eight host cities that welcomed visitors and supported 1,200 full-time equivalent jobs. It also saw a 140% increase in participation among girls in the season after the tournament—so the benefits are manifold. The Commonwealth Games Federation is exploring all options to secure the long-term viability of the Commonwealth Games. It has committed to putting a firmer plan in place by the time of its general assembly in November.
Lord Moynihan (Con)
My Lords, my noble friend the Minister will know that the highly successful 1908 summer Olympics in London was a multisport event that ran for seven months, with many sports being organised sequentially. Given how expensive it is to run the Commonwealth Games and how few countries can afford to do so, would the Government consider supporting a Commonwealth Games where different Commonwealth countries were invited to host different sporting events in the same year? It would make the Games a great festival of Commonwealth sport that would be more affordable and would allow more sports and more countries to be added to the Games’ agenda.
Lord Parkinson of Whitley Bay (Con)
I missed the Games that my noble friend mentioned at the outset of his question, but his suggestion is a good one. The Commonwealth Games Federation is looking at all options. It is important that the Games remain a truly global event and I will pass on his very sensible suggestion to my right honourable friend the Sports Minister.
Baroness Bull (CB)
My Lords, the Minister mentioned the increase in sports participation that followed the Commonwealth Games. Typically, there is also a rise in volunteering, and we know from 2012 that sadly this was not sustained after the Games. What lessons were learned from that, and did we see a rise in volunteering around the Birmingham Commonwealth Games that we will see sustained?
Lord Parkinson of Whitley Bay (Con)
Our full impact assessment of the Birmingham Games will follow early in the new year, so I will draw out the points the noble Baroness rightly raises. The legacy of hosting these major events is manifold. There was a brilliant cultural programme that sat alongside the Birmingham Games and was enjoyed by millions of people around the world watching on television, as well as those who visited in person. That is exactly why we are so proud to host such large events.
Lord Holmes of Richmond (Con)
My Lords, would my noble friend agree that it is entirely possible to have an economic model that works for Commonwealth Games, as has been seen in Birmingham, Glasgow and Manchester? Would he like to remind the House that when good Games become great Games there is an economic, educational, environmental, social, sporting and infrastructure legacy for decades to come?
Lord Parkinson of Whitley Bay (Con)
I wholeheartedly agree with my noble friend and would remind your Lordships’ House that the Birmingham Games came in £70 million under budget. They brought great joy to everyone who watched them and participated, and they were done with great economic success.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsWednesday 6th September 2023
(8 months, 2 weeks ago)
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The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I will make a brief statement on the devolution status of the Bill. I am pleased to inform your Lordships’ House that both the Scottish Parliament and Senedd Cymru have voted to grant consent for all the relevant provisions. For Scotland, these provisions are the power to amend the list of exempt educational institutions, the power to amend the list of child sexual exploitation and abuse offences and the new offence of encouraging or assisting serious self-harm. For Wales, the provisions are the power to amend the list of exempt educational institutions, the false communications offence, the threatening communications offence, the flashing images offences and the offence of encouraging or assisting serious self-harm.
As noble Lords will be aware, because the Northern Ireland Assembly is adjourned the usual process for seeking legislative consent in relation to Northern Ireland has not been possible. In the absence of legislative consent from the Northern Ireland Assembly, officials from the relevant UK and Northern Ireland departments have worked together to ensure that the Bill considers and reflects the relevant aspects of devolved legislation so that we may extend the following provisions to Northern Ireland: the power to amend the list of exempt educational institutions, the false communications offence, the threatening communications offence and the offence of encouraging or assisting serious self-harm. His Majesty’s Government have received confirmation in writing from the relevant Permanent Secretaries in Northern Ireland that they are content that nothing has been identified which would cause any practical difficulty in terms of the existing policy and legislative landscape. Historically, this area of legislation in Northern Ireland has mirrored that in Great Britain, and we believe that legislating without the consent of the Northern Ireland Assembly is justified in these exceptional circumstances and mitigates the risk of leaving Northern Ireland without the benefit of the Bill’s important reforms and legislative parity.
We remain committed to ensuring sustained engagement on the Bill with all three devolved Administrations as it progresses through Parliament. I beg to move that the Bill be read a third time.
Clause 44: Secretary of State’s powers of direction
Amendment 1
Member’s explanatory statement
This amendment provides that, in addition to publishing a direction under this Clause, the Secretary of State must also lay it before Parliament. Additionally the Secretary of State is required to do these things as soon as reasonably practicable. There is an exemption in certain circumstances (as to which see the next amendment to this Clause in my name).
Lord Parkinson of Whitley Bay (Con)
My Lords, His Majesty’s Government have listened carefully to the views expressed in Committee and on Report and have tabled amendments to the Bill to address concerns raised by noble Lords. Let me first again express my gratitude to my noble friend Lady Stowell of Beeston for her constructive engagement on the Secretary of State’s powers of direction. As I said during our previous debate on this topic, I am happy to support her Amendments139 and 140 from Report. The Government are therefore bringing forward two amendments to that effect today.
Noble Lords will recall that, whenever directing Ofcom about a code, the Secretary of State must publish that direction. Amendment 1 means that, alongside this, in most cases a direction will now need to be laid before Parliament. There may be some cases where it is appropriate for the Secretary of State to withhold information from a laid direction: for example, if she thinks that publishing it would be against the interests of national security. In these cases, Amendment 2 will instead require the Secretary of State to lay a statement before Parliament setting out that a direction has been given, the kind of code to which the direction relates and the reasons for not publishing it. Taken together, these amendments will ensure that your Lordships and Members of another place are always made aware as soon as a direction has been made and, wherever possible, understand the contents of that direction. I hope noble Lords will agree that, after the series of debates we have had, we have reached a sensible and proportionate position on these clauses and one which satisfies your Lordships’ House.
I am also grateful to the noble Baroness, Lady Kennedy of The Shaws, for her determined and collaborative work on the issue of threatening communications. Following the commitment I made to her on Report, I have tabled an amendment to make it explicit that the threatening communications offence captures threats where the recipient fears that someone other than the person sending the message will carry out the threat. I want to make it clear that the threatening communications offence, like other existing offences related to threats, already captures threats that could be carried out by third parties. This amendment does not change the scope of the offence, but the Government understand the desire of the noble Baroness and others to make this explicit in the Bill, and I am grateful to her for her collaboration.
Regarding Ofcom’s power of remote access, I am grateful to noble Lords, Lord Knight of Weymouth and Lord Allan of Hallam, my noble friend Lord Moylan and the noble Baroness, Lady Fox of Buckley, who unavoidably cannot be with us today, for raising their concerns about the perceived breadth of the power and the desire for further safeguards to ensure that it is used appropriately by the regulator.
I am also grateful to technology companies for the constructive engagement they have had with officials over the summer. As I set out on Report, the intention of our policy is to ensure clarity about Ofcom’s ability to observe empirical tests, which are a standard method for understanding algorithms and consequently for assessing companies’ compliance with the duties in the Bill. They involve taking a test data set, running it through an algorithmic system and observing the output.
Lord Knight of Weymouth (Lab)
My Lords, I do not know how everyone has spent their summer, but this feels a bit like we have been working on a mammoth jigsaw puzzle and we are now putting in the final pieces. At times, through the course of this Bill, it has felt like doing a puzzle in the metaverse, where we have been trying to control an unreliable avatar that is actually assembling the jigsaw—but that would be an unfair description of the Minister. He has done really well in reflecting on what we have said, influencing his ministerial colleagues in a masterclass of managing upwards, and coming up with reasonable resolutions to previously intractable issues.
We are trusting that some of the outcome of that work will be attended to in the Commons, as the noble Baroness, Lady Morgan, has said, particularly the issues that she raised on risk, that the noble Baroness, Lady Kidron, raised on children’s safety by design, and that my noble friend Lady Merron raised on animal cruelty. We are delighted at where we think these issues have got to.
For today, I am pleased that the concerns of the noble Baroness, Lady Stowell, on Secretary of State powers, which we supported, have been addressed. I also associate myself with her comments on parliamentary scrutiny of the work of the regulator. Equally, we are delighted that the Minister has answered the concerns of my noble friend Lady Kennedy and that he has secured the legislative consent orders which he informed us of at the outset today. We would be grateful if the Minister could write to us answering the points of my noble friend Lord Rooker, which were well made by him and by the Delegated Powers Committee.
I am especially pleased to see that the issues which we raised at Report on remote access have been addressed. I feel smug, as I had to press quite hard for the Minister to leave the door open to come back at this stage on this. I am delighted that he is now walking through the door. Like the noble Lord, Lord Allan, I have just a few things that I would like clarification on—the proportional use of the powers, Ofcom taking into account user privacy, especially regarding live user data, and that the duration of the powers be time- limited.
Finally, I thank parliamentarians on all sides for an exemplary team effort. With so much seemingly falling apart around us, it is encouraging that, when we have common purpose, we can achieve a lot, as we have with this Bill.
Lord Parkinson of Whitley Bay (Con)
My Lords, let me first address the points made by the noble Lord, Lord Rooker. I am afraid that, like my noble friend Lady Stowell of Beeston, I was not aware of the report of your Lordships’ committee. Unlike her, I should have been. I have checked with my private office and we have not received a letter from the committee, but I will ask them to contact the clerk to the committee immediately and will respond to this today. I am very sorry that this was not brought to my attention, particularly since the members of the committee met during the Recess to look at this issue. I have corresponded with my noble friend Lord McLoughlin, who chairs the committee, on each of its previous reports. Where we have disagreed, we have done so explicitly and set out our reasons. We have agreed with most of its previous recommendations. I am very sorry that I was not aware of this report and have not had the opportunity to provide answers for your Lordships’ House ahead of the debate.
Lord Rooker (Lab)
The report was published on 31 August. It so happens that the committee has been forced to meet in an emergency session tomorrow morning because of government amendments that have been tabled to the levelling-up Bill, which will be debated next Wednesday, that require a report on the delegated powers, so we will have the opportunity to see what the Minister has said. I am very grateful for his approach.
Lord Parkinson of Whitley Bay (Con)
The committee will have a reply from me before it meets tomorrow. Again, I apologise. It should not be up to the committee to let the Minister know; I ought to have known about it.
I am very grateful to noble Lords for their support of the amendments that we have tabled in this group, which reflect the collaborative nature of the work that we have done and the thought which has been put into this by my ministerial colleagues and me, and by the Bill team, over the summer. I will have a bit more to say on that when I move that the Bill do now pass in a moment, but I am very grateful to those noble Lords who have spoken at this stage for highlighting the model of collaborative working that the Bill has shown.
The noble Baroness, Lady Ritchie of Downpatrick, asked for an update on timetables. Some of the implementation timetables which Ofcom has assessed depend a little on issues which may still change when the Bill moves to another place. If she will permit it, once they have been resolved I will write with the latest assessments from Ofcom, and, if appropriate, from us, on the implementation timelines. They are being recalculated in the light of amendments that have been made to the Bill and which may yet further change. However, everybody shares the desire to implement the Bill as swiftly as possible, and I am grateful that your Lordships’ work has helped us do our scrutiny with that in mind.
The noble Lord, Lord Allan, asked some questions about the remote viewing power. On proportionality, Ofcom will have a legal duty to exercise its power to view information remotely in a way that is proportionate, ensuring, as I said, that undue burdens are not placed on businesses. In assessing proportionality in line with this requirement, Ofcom would need to consider the size and resource capacity of a service when choosing the most appropriate way of gathering information. To comply with this requirement, Ofcom would also need to consider whether there was a less onerous method of obtaining the necessary information.
On the points regarding that and intrusion, Ofcom expects to engage with providers as appropriate about how to obtain the information it needs to carry out its functions. Because of the requirement on Ofcom to exercise its information-gathering powers proportionately, it would need to consider less onerous methods. As I said, that might include an audit or a skilled persons report, but we anticipate that, for smaller services in particular, those options could be more burdensome than Ofcom remotely viewing information.
Lord Moylan (Con)
Will my noble friend draw attention to the part of Clause 122 that says that Ofcom cannot issue a requirement which is not technically feasible, as he has just said? That does not appear in the text of the clause, and it creates a potential conflict. Even if the requirement is not technically feasible—or, at least, if the platform claims that it is not—Ofcom’s power to require it is not mitigated by the clause. It still has the power, which it can exercise, and it can presumably take some form of enforcement action if it decides that the company is not being wholly open or honest. The technical feasibility is not built into the clause, but my noble friend has just added it, as with quite a lot of other stuff in the Bill.
Lord Parkinson of Whitley Bay (Con)
It has to meet minimum standards of accuracy and must have privacy safeguards in place. The clause talks about those in a positive sense, which sets out the expectation. I am happy to make clear, as I have, what that means: if the appropriate technology does not exist that meets these requirements, then Ofcom will not be able to use Clause 122 to require its use. I hope that that satisfies my noble friend.
“(7A) If the Secretary of State considers that publishing and laying before Parliament a direction given under this section would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom—(a) subsection (7)(c) does not apply in relation to the direction, and(b) the Secretary of State must, as soon as reasonably practicable, publish and lay before Parliament a document stating—(i) that a direction has been given,(ii) the kind of code of practice to which it relates, and(iii) the reasons for not publishing it.”Member’s explanatory statement
This amendment provides that in the circumstances mentioned in the amendment the Secretary of State is not required to publish and lay before Parliament a direction given under this Clause but must instead publish and lay before Parliament a document stating that a direction has been given, the code of practice to which it relates and the reasons for not publishing it.
Member’s explanatory statement
This is a technical amendment which substitutes the correct cross-references into this provision.
“(za) references to a service meeting the Category 1, Category 2A or Category 2B threshold conditions are to a service meeting those conditions in a way specified in regulations under paragraph 1 of Schedule 11 (see paragraph 1(4) of that Schedule);”Member’s explanatory statement
This amendment improves the drafting to clarify that a service “meets the Category 1 threshold conditions” (for example) if the service meets them in a way set out in regulations under Schedule 11.
Member’s explanatory statement
This amendment improves the drafting to clarify that services which are already Category 1 services, or which meet the conditions to be a Category 1 service, do not need to be assessed by OFCOM to see if they should be included in the list which is provided for by Clause 98.
Member’s explanatory statement
This amendment changes the wording of one of OFCOM’s information powers. The power now refers to viewing information remotely, rather than remotely accessing a service; the power is exercisable by a person authorised by OFCOM; and the power may only be exercised in relation to information as mentioned in Clause 101(3)(a) and (b).
“(4A) An information notice requiring a person to take steps of a kind mentioned in section 101(3) must give the person at least seven days’ notice before the steps are required to be taken.” Member’s explanatory statement
This amendment has the effect that if a person receives a notice from OFCOM requiring them to allow OFCOM to remotely view information, they must be given at least 7 days to comply with the notice.
Member’s explanatory statement
Clause 121 is about the admissibility of statements in criminal proceedings. This amendment adds Clause 102 to the list of relevant information powers (information in connection with an investigation into the death of a child).
““age assurance” means age verification or age estimation;”Member’s explanatory statement
This amendment adds a definition of “age assurance” into this Clause.
Member’s explanatory statement
This amendment makes it clear that the threatening communications offence in Clause 182 may be committed by a person who sends a threatening message regardless of who might carry out the threat.
Lord Parkinson of Whitley Bay (Con)
My Lords, in begging to move that the Bill do now pass, I add my words of thanks to all noble Lords who have been involved over many years and many iterations of the Bill, particularly during my time as the Minister and in the diligent scrutiny we have given it in recent months. The Bill will establish a vital legislative framework, making the internet safer for all, particularly for children. We are now closer than ever to achieving that important goal. In a matter of months from Royal Assent, companies will be required to put in place protections to tackle illegal content on their services or face huge fines. I am very grateful to noble Lords for the dedication, attention and time they have given to the Bill while it has been before your Lordships’ House.
The Bill will mark a significant change in children’s safety online. Last month, data from UK police forces showed that 6,350 offences relating to sexual communications with a child were recorded last year alone. These are horrifying statistics which underline the importance of the Bill in building a protective shield for our children online. We cannot let perpetrators of such abhorrent crimes stalk children online and hide behind their screens, nor let companies continue to turn a blind eye to the harm being done to children on their services. We are working closely with Ofcom to make sure that the protections for children established by the Bill are enforced as soon as possible, and we have been clear that companies should not wait for the legislation to come into force before taking action.
The aim of keeping children safe online is woven throughout the Bill, and the changes that we have made throughout its passage in your Lordships’ House have further bolstered it. In order to provide early and clear guidance to companies and Ofcom regarding the content from which children must be protected, rather than addressing these later via secondary legislation, the categories of primary priority and priority content which is harmful to children will now be set out in the Bill.
Following another amendment made during your Lordships’ scrutiny, providers of the largest services will also be required to publish summaries of their risk assessments for illegal content and content which is harmful to children. Further changes to the Bill have also made sure that technology executives must take more responsibility for the safety of those who use their websites. Senior managers will face criminal liability if they fail to comply with steps set by Ofcom following enforcement action to keep children safe on their platforms, with the offence punishable with up to two years in prison.
Noble Lords have rightly raised concerns about what the fast-changing technological landscape will mean for children. The Bill faces the future and is designed to keep pace with emerging technological changes such as AI-generated pornography.
Child sexual exploitation and abuse content generated by AI is illegal, regardless of whether it depicts a real child or not, and the Bill makes it clear that technology companies will be required to identify this content proactively and remove it. Whatever the future holds, the Bill will ensure that guard rails are in place to allow our children to explore it safely online.
I have also had the pleasure of collaborating with noble Lords from across your Lordships’ House who have championed the important cause of strengthening protections for women and girls online, who we know disproportionately bear the brunt of abhorrent behaviour on the internet. Following changes made earlier to the Bill, Ofcom will be required to produce and publish guidance which summarises in one clear place measures that should be taken to reduce the risk of harm to women and girls online. The amendment will also oblige Ofcom to consult when producing the guidance, ensuring that it reflects the voices of women and girls as well as the views of experts on this important issue.
The Bill strikes a careful balance: it tackles criminal activity online and protects our children while enshrining freedom of expression in its legislative framework. A series of changes to the Bill has ensured that adults are provided with greater control over their online experience. All adult users of the largest services will have access to tools which, if they choose to use them, will allow them to filter out content from non-verified users and to reduce the likelihood of encountering abusive content. These amendments, which have undergone careful consideration and consultation, will ensure that the Bill remains proportionate, clear and future-proof.
I am very grateful to noble Lords who have helped us make those improvements and many more. I am conscious that a great number of noble Lords who have taken part in our debates were part of the pre-legislative scrutiny some years ago. They know the Bill very well and they know the issues well, which has helped our debates be well informed and focused. It has helped the scrutiny of His Majesty’s Government, and I hope that we have risen to that.
I am very grateful to all noble Lords who have made representations on behalf of families who have suffered bereavements because of the many terrible experiences online of their children and other loved ones. There are too many for me to name now, and many more who have not campaigned publicly but who I know have been following the progress of the Bill carefully, and we remember them all today.
Again, there are too many noble Lords for me to single out all those who have been so vigilant on this issue. I thank my colleagues on the Front Bench, my noble friends Lord Camrose and Lord Harlech, and on the Front Bench opposite the noble Lords, Lord Knight and Lord Stevenson, and the noble Baroness, Lady Merron. On the Liberal Democrat Benches, I thank the noble Lords, Lord Clement-Jones and Lord Allan of Hallam—who has been partly on the Front Bench and partly behind—who have been working very hard on this.
I also thank the noble Baroness, Lady Kidron, whom I consider a Front-Bencher for the Cross Benches on this issue. She was at the vanguard of many of these issues long before the Bill came to your Lordships’ House and will continue to be long after. We are all hugely impressed by her energy and personal commitment, following the debates not only in our own legislature but in other jurisdictions. I am grateful to her for the collaborative nature of her work with us.
I will not single out other noble Lords, but I am very grateful to them from all corners of the House. They have kicked the tyres of the Bill and asked important questions; they have given lots of time and energy to it and it is a better Bill for that.
I put on record my thanks to the huge team in my department and the Department for Science, Innovation and Technology, who, through years of work, expertise and determination, have brought the Bill to this point. I am grateful to the staff of your Lordships’ House and to colleagues from the Office of the Parliamentary Counsel, in particular Maria White and Neil Shah, and, at the Department for Science, Innovation and Technology, Sarah Connolly, Orla MacRae, Caroline Bowman and Emma Hindley as well as their huge teams, including those who have worked on the Bill over the years but are not currently working on it. They have worked extremely hard and been generous with their time to noble Lords for the use of our work.
The Bill will make a vital difference to people’s safety online, especially children’s safety. It has been a privilege to play a part in it. I was working as a special adviser at the Home Office when this area of work was first mooted. I remember that, when this Bill was suggested in the 2017 manifesto, people suggested that regulating the internet was a crazy idea. The biggest criticism now is that we have not done it sooner. I am very grateful to noble Lords for doing their scrutiny diligently but speedily, and I hope to see the Bill on the statute book very soon. I beg to move that the Bill do now pass.
Lord Stevenson of Balmacara (Lab)
My Lords, I am grateful to the Minister for his very kind words to everybody, particularly my Front Bench and me. I also wish him a speedy recovery from his recent illness, although I was less sympathetic when I discovered how much he has been “managing upwards”—in the words of my noble friend Lord Knight—and achieving for us in the last few days. He has obviously been recovering and I am grateful for that. The noble Lord has steered the Bill through your Lordships’ House with great skill and largely single-handedly. It has been a pleasure to work with him, even when he was turning down our proposals and suggestions for change, which he did in the nicest possible way but absolutely firmly.
Lord Bethell (Con)
I rise briefly to raise the question of access to data by academics and research organisations. Before I do so, I want to express profound thanks to noble Lords who have worked so collaboratively to create a terrific Bill that will completely transform and hold to account those involved in the internet, and make it a safer place. That was our mission and we should be very proud of that. I cannot single out noble Peers, with the exception of the noble Baroness, Lady Kidron, with whom I worked collaboratively both on age assurance and on harms. It was a partnership I valued enormously and hope to take forward. Others from all four corners of the House contributed to the parts of the Bill that I was particularly interested in. As I look around, I see so many friends who stuck their necks out and spoke so movingly, for which I am enormously grateful.
The question of data access is one of the loose ends that did not quite make it into the Bill. I appreciate the efforts of my noble friend the Minister, the Secretary of State and the Bill team in this matter and their efforts to try and wangle it in; I accept that it did not quite make it. I would like to hear reassurance from my noble friend that this is something that the Government are prepared to look at in future legislation. If he could provide any detail on how and in which legislation it could be revisited, I would be enormously grateful.
Lord Parkinson of Whitley Bay (Con)
My Lords, I will be brief and restrict myself to responding to the questions which have been raised. I will hold to my rule of not trying to thank all noble Lords who have played their part in this scrutiny, because the list is indeed very long. I agree with what the noble Lord, Lord Clement-Jones, said about this being a Back-Bench-driven Bill, and there are many noble Lords from all corners of the House and the Back Benches who have played a significant part in it. I add my thanks to the noble Baroness, Lady Benjamin, not just for her kind words, but for her years of campaigning on this, and to my noble friend Lord Bethell who has worked with her—and others—closely on the issues which she holds dear.
I also thank my noble friend Lord Moylan who has often swum against the tide of debate, but very helpfully so, and on important matters. In answer to his question about Wikipedia, I do not have much to add to the words that I have said a few times now about the categorisation, but on his concerns about the parliamentary scrutiny for this I stress that it is the Secretary of State who will set the categorisation thresholds. She is, of course, a Member of Parliament, and accountable to it. Ofcom will designate services based on those thresholds, so the decision-making can be scrutinised in Parliament, even if not in the way he would have wished.
I agree that we should all be grateful to the noble Lord, Lord Allan of Hallam, because he addressed some of the questions raised by my noble friend Lady Stowell of Beeston. In brief, the provision is flexible for where the technological solutions do not currently exist, because Ofcom can require services to develop or source new solutions.
This close to the gracious Speech, I will not point to a particular piece of legislation in which we might revisit the issue of researchers’ access, as raised by my noble friend Lord Bethell, but I am happy to say that we will certainly look at that again, and I know that he will take the opportunity to raise it.
Noble Lords on the Front Benches opposite alluded to the discussions which are continuing—as I committed on Report to ensure that noble Lords are able to be part of discussions as the Bill heads to another place—on functionalities and on the amendment of my noble friend Lady Morgan on category 1 services. She is one of a cavalcade of former Secretaries of State who have been so helpful in scrutinising the Bill. It is for another place to debate them, but I am grateful to noble Lords who have given their time this week to have the discussions which I committed to have and will continue to have as the Bill heads there, so that we can follow those issues hopefully to a happy resolution.
I thank my noble friend Lady Harding of Winscombe for the concessions that she wrought on Report, and for the part that she has played in discussions. She has also given a great deal of time outside the Chamber.
We should all be very grateful to the noble Lord, Lord Grade of Yarmouth, who has sat quietly throughout most of our debates—understandably, in his capacity as chairman of Ofcom—but he has followed them closely and taken those points to the regulator. Dame Melanie Dawes and all the team there stand ready to implement this work and we should be grateful to the noble Lord, Lord Grade of Yarmouth, and to all those at Ofcom who are ready to put it into action.
Levelling-up and Regeneration Bill
Lord Parkinson of Whitley Bay ExcerptsWednesday 6th September 2023
(8 months, 2 weeks ago)
Lords ChamberRead Full debate Levelling-up and Regeneration Act 2023 View all Levelling-up and Regeneration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 142-VI(a) Amendments for Report (Supplementary to the Sixth Marshalled List) - (5 Sep 2023)
“(A1) The Listed Buildings Act is amended as follows.(A2) In section 3 (temporary listing in England: building preservation notices), after subsection (1) insert—“(1A) Before serving a building preservation notice under this section, the local planning authority must consult with the Commission. (1B) Subsection (1A) does not apply where the Commission proposes to serve a building preservation notice under this section (see subsection (8)).””Member’s explanatory statement
This amendment inserts a new duty into the Planning (Listed Buildings and Conservation Areas) Act 1990 for local planning authorities to consult the Historic Buildings and Monuments Commission for England (“Historic England”) before serving a building preservation notice under that Act. The duty does not apply in cases where Historic England is carrying out the functions of a local planning authority.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I will speak to this group of amendments as Minister for Heritage. I will speak first to Amendments 202A and 202B, which regard building preservation notices.
His Majesty’s Government recognise that, although building preservation notices provide a useful means of protecting buildings for up to six months while they are being considered for listing, it is important that they should not be used inappropriately or injudiciously.
Further to our debate in Committee, my amendment to Clause 99 should help to provide that reassurance. It introduces a requirement on local planning authorities to consult Historic England before serving a building preservation notice, drawing on Historic England’s expert knowledge about the historic environment to help advise local planning authorities before they issue a building preservation notice. This practice is common- place today, although not universal; the amendment seeks to solidify this practice as a duty on the local planning authority. In addition, His Majesty’s Government will issue guidance after the Bill has become law, setting out the manner in which local planning authorities need to consult Historic England. For example, where the planning authority’s view differs from Historic England’s, it should set out why it has come to that conclusion.
By tabling this amendment, the Government are showing that we have listened to the concerns raised at earlier stages yet remain committed to ensuring the best protection possible for our nation’s most loved and valued heritage.
I am grateful in particular to Historic Houses for the time and willingness they have shown in discussing this issue with me.
I turn to Amendment 271A, in my name, which concerns blue plaques. For a century and a half, blue plaques have helped people to learn about and celebrate their local heritage and to take pride in their local community. More than 900 have been erected, celebrating people as diverse as Ada Lovelace, Jimi Hendrix and Mohandas Gandhi—but only in London, for, while there are many brilliant local schemes across the country, the official scheme backed in statute is limited to London alone.
Baroness Hayman of Ullock (Lab)
I thank all noble Lords who have taken part in this very interesting debate. I start by thanking the noble Lord, Lord Parkinson of Whitley Bay, for his introduction and for the amendments that he introduced. It was good to see that we have the negative procedure being applied in some areas. As others have done, I too welcome the rollout of the blue plaques, but I also support the comments regarding women and diversity. I am sure that he will take those away.
My noble friend Lady Andrews, as always, introduced her important amendments eloquently and clearly. I will not go into detail but want to let the House know that we fully agree with and support her amendments and the arguments that she put forward urging the Government to accept what she believes is absolutely the right way to move forward on this. I thank the Victorian Society for its very helpful briefing on this. I absolutely agree with my noble friend that one big concern that has come across in the debate, particularly regarding the Crooked House, of course, is that we have been too casual about demolition in our society. The Crooked House demolition raised very highly up the agenda the public’s concerns when something like that happens in their local community. As the noble Lord, Lord Carrington, said, it appeared that the building was about to be listed, so it is quite shocking that it was able to happen. We need to ensure in future that buildings of such importance to localities cannot just be demolished like that.
We heard during earlier discussions on the Bill about the release of carbon when buildings are demolished. The noble Lord, Lord Ravensdale, had an amendment on this and it was mentioned by my noble friend and by the noble Baroness, Lady Bennett of Manor Castle. Again, that now needs to be part of the discussions. Also, I really agree with the noble Baroness’s comments on tidiness. We are too concerned about tidiness and that has impacts on all sorts of areas and our environment.
My noble friend also had an amendment around the importance of the local list that communities now have of buildings that are important to those local communities. We should all applaud my noble friend Lady Taylor, because I understand that she has set up such a list. But the concerns are how little weight that then has in planning and how little understanding there is of it, so my noble friend’s amendment is important in this aspect.
The noble Lord, Lord Northbrook, introduced his amendments, which are similar to those he had in Committee, so I will not go into detail. However, he raised concerns about the approval of inappropriate developments and the importance of what local residents feel about them. That should be taken proper account of and, again, we would very much support him in that. We believe that local residents should be listened to and that there should be proper consultation.
On replacement windows in conservation areas, it is really important that we have a sensible and practical approach to this. I know that we talked about like for like and heard that other materials can be used, but that is not always the way things are interpreted, unfortunately. There is a house near to me where the windows are going to fall out because like for like insists on hardwood, and the residents cannot afford it. There needs to be more flexibility and practicality. Also, in the conservation area in Cockermouth after the flooding, households were told that they were not allowed to put in flood doors, which seems a ridiculous situation for us to be in.
In my last two comments, I thought the noble Lord, Lord Redesdale, made some very good points on his amendments, particularly regarding dispute resolution, environmental record services and archives. The noble Earl, Lord Lytton, as always, made some very important points. He has enormous knowledge and practical expertise in this area.
This debate has shown that there are serious concerns about heritage and conservation, areas that could move forward quite sensibly and practically with government support. I look forward to the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
I am grateful, first, to all those noble Lords who expressed their support for the amendment relating to the extension of the blue plaque scheme. I am glad to see that it has had support from across the House, as it did from the cross-party Local Government Association, so I am grateful to all those who mentioned it in their contributions now.
My noble friend Lord Lexden was particularly kind. He was right to point out that one of the motivations here is to increase people’s curiosity and knowledge about the past, including untold or surprising stories. I am glad to hear of the progress that he and the noble Baroness, Lady Stuart of Edgbaston, are making with their campaigns for plaques—not blue ones, but important ones—in Birmingham to the two sons of that city and of Joseph Chamberlain, who is already commemorated. My noble friend is right that they are people of international and national significance, as well as of great local pride. I look forward to seeing those plaques added to the Chamberlain memorial.
I am also grateful for what my noble friend Lord Mendoza said about the importance of the blue plaques scheme in increasing people’s connection to and sense of pride in place. That is a very important aspect of the scheme.
The noble Baronesses, Lady Bennett of Manor Castle and Lady Hayman of Ullock, are right to point to the need for a greater diversity of stories. That is something that English Heritage has been focusing on in recent years. For instance, of the plaques that have been unveiled since 2016, more than half have been to women. The noble Baroness is right that there is a job of work to do to ensure that we are telling more untold stories of women, working-class people, people of colour, people of minority sexualities and so much more. I hope one of the benefits of extending the scheme across all of England will be being able to draw on the greater diversity of the country in telling those stories, which are always so interesting and important.
The noble Baroness, Lady Pinnock, asked some questions on blue plaques. Yes, local schemes—which, as I say, have operated for many years in parallel—will be able to do so. In fact, a number of London boroughs organise their own schemes on top of the blue plaques scheme which has operated in the capital—so the more the merrier, I say.
I was remiss in not thanking the noble Earl, Lord Lytton, in my opening speech in relation to the amendment when I thanked the Historic Houses association, with which I know he has been in touch. I am grateful to him for the time and attention he has given this and for the discussions we have had on that amendment.
The noble Baroness, Lady Pinnock, rightly asked a few more questions on BPNs. Our original proposal was without this further amendment recognising the need for speed in these instances. I reassure her that Historic England is adept at dealing with these and other listing and heritage matters quickly when the situation needs, and there is an expedited process for listing when something is believed to be at risk. One of the advantages of having Historic England’s chairman in your Lordships’ House is that my noble friend Lord Mendoza will have heard those points and be able to reflect them back to Historic England, which already works quickly. That point will be carefully considered in the production of the necessary guidance. I hope that addresses her concerns on BPNs.
I turn now to the amendments in this group tabled by other noble Lords. I am very grateful to my noble friend Lord Northbrook for tabling Amendment 203 and for the correspondence we have had on this issue this week. His amendment seeks to require that, in meeting their statutory duty under Section 72, local planning authorities should have regard to any relevant advice produced by Historic England. I agree that this should be the case, but it is already something that local planning authorities do, and the Government’s planning practice guidance points them to Historic England’s advice.
My noble friend Lord Bellingham is right to remind us that Historic England has a duty to liaise with local authorities, and I hope he will be reassured by what our noble friend Lord Mendoza said about the frequency with which it does that. When our guidance is next reviewed, I am happy to ask officials to consider whether the links to Historic England’s advice could be strengthened. I hope that, with that assurance, my noble friend Lord Northbrook will be content not to press his Amendment 203.
Amendment 204, also in my noble friend’s name, relates to replacement windows in conservation areas. An existing permitted development right allows for enlargement, improvement or other alteration to a dwelling-house. That is subject to a condition that the materials used in any exterior work—other than those used in the construction of a conservatory—must be of a similar appearance to those used in the construction of the exterior of the existing dwelling-house. That applies to replacement windows in conservation areas. The Secretary of State for Levelling Up, in his housing speech in July, launched a consultation which included a proposal to apply local design codes to permitted development rights. He also announced that the Government will consult this autumn on how to better support existing homeowners to extend their homes. On top of that, the Government are undertaking a review of the practical planning barriers which house- holders can face when installing energy-efficiency measures.
Although I am grateful to my noble friend for raising this issue, I hope he will understand that it would be premature to accept his Amendment 204, as it would curtail the scope of any legislative recommendations that the review might set out in due course. Additionally, powers to amend permitted development rights already exist in primary legislation. For these reasons I cannot support Amendment 204 but am happy to reassure my noble friend that we keep permitted development rights under review.
Baroness Andrews (Lab)
I thank the noble Lord for what he has just said. It is an important step forward to get a consultation on the two propositions and the two sets of dates that might apply with Amendment 204A. That is very important and very good news, and I am very grateful. Can the noble Lord say anything about the timetable? I presume that he is talking about the normal 12-week public consultation period. Is there anything we can pass on to the community about preparation for such a consultation? Could the Minister write to me about whether there is a consultation within DLUHC on permitted development as a whole? It would be very useful to have that information.
Lord Parkinson of Whitley Bay (Con)
I will happily write to the noble Baroness with the information she seeks, including confirmation of the timelines for the consultation, which I expect will meet the normal provisions. I am afraid I cannot give her a date, but we will do it shortly—if I am able to give any greater finesse to her in writing, I will do so gladly.
Member’s explanatory statement
This amendment is consequential on the amendment made to line 1 of Clause 99 in the Minister’s name.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsWednesday 19th July 2023
(10 months ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-V Fifth marshalled list for Report - (17 Jul 2023)
“Power to impose duty about alternative dispute resolution procedure
(1) The Secretary of State may by regulations amend this Act for or in connection with the imposition on providers of Category 1 services of an ADR duty.(2) An “ADR duty”—(a) is a duty requiring providers of Category 1 services to arrange for and engage in an alternative dispute resolution procedure in specified circumstances for the resolution of disputes about their handling of relevant complaints, and(b) may include a duty requiring such providers to meet the costs incurred by any other person in using a dispute resolution procedure which is so arranged.(3) Complaints are “relevant” for the purposes of subsection (2)(a) if they—(a) relate to a Category 1 service,(b) are of a specified kind, and(c) are made by persons of a specified kind.(4) Regulations under this section may not be made before the publication of a statement by the Secretary of State responding to OFCOM’s report under section (OFCOM’s report about reporting and complaints procedures)(report about reporting and complaints procedures in use by providers of Part 3 services: see subsection (10) of that section). (5) Before making regulations under this section the Secretary of State must consult—(a) OFCOM,(b) the Information Commissioner, and(c) such other persons as the Secretary of State considers appropriate.(6) If the power conferred by subsection (1) is exercised, the first regulations made under the power must—(a) require the use of a dispute resolution procedure which is impartial, and(b) prohibit the use of a dispute resolution procedure which restricts or excludes the availability of civil proceedings.(7) Provision made by regulations under this section may have the effect that the duties set out in any or all of sections 17, 18 and 19 which apply in relation to duties imposed by other provisions of Chapter 2 of Part 3 are also to apply in relation to the ADR duty, and accordingly the regulations may amend—(a) section 17(6),(b) the definition of “safety measures and policies” in section 18(8), or(c) the definition of “relevant duties” in section 19(10).(8) The provisions of this Act that may be amended by the regulations in connection with the imposition of the ADR duty include, but are not limited to, the following provisions (in addition to those mentioned in subsection (7))—(a) section 6(5),(b) section 94(12)(a), and(c) section 120(2).(9) If the power conferred by subsection (1) is exercised, the first regulations made under the power must require OFCOM to—(a) produce and publish guidance for providers of Category 1 services to assist them in complying with the ADR duty, and(b) consult the Secretary of State, the Information Commissioner and such other persons as OFCOM consider appropriate before producing the guidance.(10) Section 184(1) applies for the purposes of the references to Category 1 services in this section.(11) In this section “specified” means specified in regulations under this section.(12) For the meaning of “Category 1 service”, see section 86 (register of categories of services).”Member’s explanatory statement
This amendment provides that the Secretary of State may make regulations amending this Bill so as to impose a new duty on providers of Category 1 services to arrange for and engage in an out of court, impartial dispute resolution procedure. The regulations may not be made until the Secretary of State has responded to OFCOM’s report about content reporting and complaints procedures under the new clause proposed to be inserted after Clause 147 in my name.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the government amendments in this group relate to content reporting and complaints procedures. The Bill’s existing duties on each of these topics are a major step forward and will provide users with effective methods of redress. There will now be an enforceable duty on Part 3 services to offer accessible, transparent and easy-to-use complaints procedures. This is an important and significant change from which users and others will benefit directly.
Furthermore, Part 3 services complaints procedures will be required to provide for appropriate action to be taken in response to complaints. The duties here will fundamentally alter how complaints systems are operated by services, and providers will have to make sure that their systems are up to scratch. If services do not comply with their duties, they will face strong enforcement measures.
However, we have listened to concerns raised by your Lordships and others, and share the desire to ensure that complaints are handled effectively. That is why we have tabled Amendments 272AA and 274AA, to ensure that the Bill’s provisions in this area are the subject of a report to be published by Ofcom within two years of commencement.
Amendment 272AA places a requirement on Ofcom to undertake a report about Part 3 services reporting and complaints procedures. The report will assess the measures taken or in use by providers of Part 3 services to enable users and others to report content and make complaints. In assessing the content reporting and complaints measures in place, the report must take into account users’ and others’ experiences of those procedures—including how easy to use and clear they are for reporting content and making complaints, and whether providers are taking appropriate and timely action in response.
In this report, Ofcom must provide advice to the Secretary of State about whether she should use her power set out in Amendment 236C to make regulations imposing an alternative dispute resolution duty on category 1 services. Ofcom may also make wider recommendations about how the complaints and user redress provisions can be strengthened, and how users’ experiences with regard to complaints can be improved more broadly. Amendment 274AA is a consequential amendment ensuring that the usual confidentiality provisions apply to matters contained in that report.
These changes will ensure that the effectiveness of the Bill’s content reporting and complaints provisions can be thoroughly assessed by Ofcom two years after the commencement of the provision, providing time for the relevant reporting and complaints procedures to bed in.
Amendment 236C then provides that the Secretary of State will have a power to make regulations to amend the Act in order to impose an alternative dispute resolution duty on providers of category 1 services. This power can be used after the Secretary of State has published a statement in response to Ofcom’s report. This enables the Secretary of State to impose via regulations a duty on the providers of category 1 services to arrange for and engage in an impartial, out-of-court alternative dispute resolution procedure in respect of complaints. This means that, if the Bill’s existing user redress provisions are found to be insufficient, this requirement can quickly be imposed to strengthen the Bill.
This responds directly to concerns which noble Lords raised about cases where users or parents may feel that they have nowhere to turn if they are dissatisfied with a service’s response to their complaint. We believe that the existing provisions will remedy this, but, if they do not, these new requirements will ensure that there is an impartial, alternative dispute resolution procedure which will work towards the effective resolution of the complaint between the service and the complainant.
At the same time, it will avoid creating a single ombudsman, person or body which may be overwhelmed either through the volume of complaints from multiple services or by the complexity of applying such disparate services’ varying terms of service. Instead, if required, this power will put the onus on the provider to arrange for and engage in an impartial dispute resolution procedure.
Amendment 237D requires that, if regulations are made requiring category 1 services to offer an alternative dispute resolution procedure, such regulation must be subject to the affirmative parliamentary procedure. This ensures that Parliament will continue to have oversight of this process.
I hope that noble Lords are reassured that the Bill not only requires services to provide users and others with effective forms of redress but that these further amendments will ensure that the Bill’s provisions in this area will be thoroughly reviewed and that action can be taken quickly if it is needed. I beg to move.
Lord Stevenson of Balmacara (Lab)
My Lords, I am grateful to hear what the Minister has just announced. The scheme that was originally prefigured in the pre-legislative scrutiny report has now got some chance of being delivered. I think the process and procedures are quite appropriate; it does need review and thought. There needs to be account taken of practice on the ground, how people have found the new system is working, and whether or not there are gaps that can be filled this way. I give my full support to the proposal, and I am very glad to see it.
Having got to the Dispatch Box early, I will just appeal to our small but very important group. We are on the last day on Report. We are reaching a number of issues where lots of debate has taken place in Committee. I think it would be quite a nice surprise for us all if we were to get through this quickly. The only way to do that is by restricting our contributions.
Lord Clement-Jones (LD)
My Lords, I declare an interest as chair of Trust Alliance Group, which operates the energy and communications ombudsman schemes, so I have a particular interest in the operation of these ADR schemes. I thank the Minister for the flexibility that he has shown in the provision about the report by Ofcom and in having backstop powers for the Secretary of State to introduce such a scheme.
Of course, I understand that the noble Baroness, Lady Newlove, and the UK Safer Internet Centre are very disappointed that this is not going to come into effect immediately, but there are advantages in not setting out the scheme at this very early point before we know what some of the issues arising are. I believe that Ofcom will definitely want to institute such a scheme, but it may be that, in the initial stages, working out the exact architecture is going to be necessary. Of course, I would have preferred to have a mandated scheme, in the sense that the report will look not at the “whether” but the “how”, but I believe that at the end of the day it will absolutely obvious that there needs to be such an ADR scheme in order to provide the kind of redress the noble Baroness, Lady Harding, was talking about.
I also agree with noble Baroness, Lady Morgan, that the kinds of complaints that this would cover should include fraudulent adverts. I very much hope that the Minister will be able to answer the questions that both noble Baronesses asked. As my noble friend said, will he reassure us that the department and Ofcom will not take their foot off the pedal, whatever the Bill may say?
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords for their warm support and for heeding the advice of the noble Lord, Lord Stevenson, on brevity. We must finish our Report today. The noble Lord, Lord Allan, is right to mention my noble friend Lady Newlove, who I have spoken to about this issue, as well as the noble Lord, Lord Russell of Liverpool, who has raised some questions here.
Alongside the strong duties on services to offer content reporting and complaints procedures, our amendments will ensure that the effectiveness of these provisions can be reviewed after they have had sufficient time to bed in. The noble Lord, Lord Allan, asked about timing in more detail. Ofcom must publish the report within the two-year period beginning on the day on which the provision comes into force. That will allow time for the regime to bed in before the report takes place, ensuring that its conclusions are informed by how the procedures work in practice. If necessary, our amendments will allow the Secretary of State to impose via regulations a duty on the providers of category 1 services to arrange for and engage in an impartial, out-of-court alternative dispute resolution procedure, providing the further strengthening which I outlined in opening.
I can reassure my noble friend Lady Morgan of Cotes that reporting mechanisms to facilitate providers’ removal of fraudulent advertisements are exactly the kinds of issues that Ofcom’s codes of practice will cover, subject to consultation and due process. As companies have duties to remove fraudulent advertising once they are alerted to it, we expect platforms will need the necessary systems and processes in place to enable users to report fraudulent adverts so that providers can remove them.
My noble friend Lady Harding asked the question which was posed a lot in Committee about where one goes if all avenues are exhausted. We have added further avenues for people to seek redress if they do not get it but, as I said in Committee, the changes that we are bringing in through this Bill will mark a significant change for people. Rather than focusing on the even-further-diminished possibility of their not having their complaints adequately addressed through the additional amendments we are bringing today, I hope she will see that the provisions in the Bill and in these amendments as bringing in the change we all want to see to improve users’ safety online.
“Powers to amend sections (“Primary priority content that is harmful to children”) and (“Priority content that is harmful to children”)
(1) The Secretary of State may by regulations amend—(a) section (“Primary priority content that is harmful to children”) (primary priority content that is harmful to children);(b) section (“Priority content that is harmful to children”) (priority content that is harmful to children).But the power to add a kind of content is limited by subsections (2) to (4).(2) A kind of content may be added to section (“Primary priority content that is harmful to children”) only if the Secretary of State considers that, in relation to Part 3 services—(a) there is a material risk of significant harm to an appreciable number of children presented by content of that kind that is regulated user- generated content or search content, and(b) it is appropriate for the duties set out in sections 11(3)(a) and 25(3)(a) (duty in relation to children of all ages) to apply in relation to content of that kind.(3) A kind of content may be added to section (“Priority content that is harmful to children”) only if the Secretary of State considers that, in relation to Part 3 services, there is a material risk of significant harm to an appreciable number of children presented by content of that kind that is regulated user-generated content or search content.(4) A kind of content may not be added to section (“Primary priority content that is harmful to children”) or (“Priority content that is harmful to children”) if the risk of harm presented by content of that kind flows from—(a) the content’s potential financial impact, (b) the safety or quality of goods featured in the content, or(c) the way in which a service featured in the content may be performed (for example, in the case of the performance of a service by a person not qualified to perform it).(5) The Secretary of State must consult OFCOM before making regulations under this section.(6) In this section references to children are to children in the United Kingdom.(7) In this section—“regulated user-generated content” has the same meaning as in Part 3 (see section 49);“search content” has the same meaning as in Part 3 (see section 51).”Member’s explanatory statement
This amendment gives power for the Secretary of State to make regulations changing the kinds of content that count as primary priority content and priority content harmful to children, subject to certain constraints set out in the Clause.
Member’s explanatory statement
This amendment has the effect that regulations made by OFCOM under the Bill must be made by statutory instrument.
Lord Parkinson of Whitley Bay (Con)
My Lords, Amendments 238A and 238D seek to change the parliamentary process for laying—oh, I am skipping ahead with final day of Report enthusiasm.
As noble Lords know, companies will fund the costs of Ofcom’s online safety functions through annual fees. This means that the regime which the Bill ushers in will be cost neutral to the taxpayer. Once the fee regime is operational, regulated providers with revenue at or above a set threshold will be required to notify Ofcom and to pay a proportionate fee. Ofcom will calculate fees with reference to the provider’s qualifying worldwide revenue.
The Delegated Powers and Regulatory Reform Committee of your Lordships’ House has made two recommendations relating to the fee regime which we have accepted, and the amendments we are discussing in this group reflect this. In addition, we are making an additional change to definitions to ensure that Ofcom can collect proportionate fees.
A number of the amendments in my name relate to qualifying worldwide revenue. Presently, the Bill outlines that this should be defined in a published statement laid before Parliament. Your Lordships’ committee advised that it should be defined through regulations subject to the affirmative procedure. We have agreed with this and are proposing changes to Clause 76 so that Ofcom can make provisions about qualifying worldwide revenue by regulations which, as per the committee’s recommendations, will be subject to the affirmative procedure.
Secondly, the committee recommended that we change the method by which the revenue threshold is defined. Presently, as set out in the Bill, it is set by the Secretary of State in a published statement laid before Parliament. The committee recommended that the threshold be set through regulations subject to the negative procedure and we are amending Clause 77 to make the recommended change.
Other amendments seek to make a further change to enable Ofcom to collect proportionate fees from providers. A provider of a regulated service the qualifying worldwide revenue of which is equal to, or greater than, the financial threshold will be required to notify Ofcom and pay an annual fee, calculated by reference to its qualifying worldwide revenue. Currently, this means that that fee calculation can be based only on the revenue of the regulated provider. The structure of some technology companies, however, means that how they accrue revenue is not always straightforward. The entity which meets the definition of a provider may therefore not be the entity which generates revenue referable to the regulated service.
Regulations to be made by Ofcom about the qualifying worldwide revenue will therefore be able to provide that the revenue accruing to certain entities in the same group as a provider of a regulated service can be taken into account for the purposes of determining qualifying worldwide revenue. This will enable Ofcom, when making such regulations, to make provisions, if necessary, to account for instances where a provider has a complex group structure; for example, where the regulated provider might accrue only a portion of the revenue referrable to the regulated service, the rest of which might be accrued by other entities in the group’s structure. These amendments to Clause 76 address these issues by allowing Ofcom to make regulations which provide that the revenue from certain other entities within the provider’s group structure can be taken into account. I beg to move.
Lord Allan of Hallam (LD)
My Lords, we have not talked much about fees in our consideration of the Bill, and I will not talk much about them today, but there are some important questions. We should not skip too lightly over the fact that we will be levying revenues from online providers. That might have a significant impact on the markets. I have some specific questions about this proposed worldwide revenue method but I welcome these amendments and that we will now be getting a better procedure. This will also allow the Minister to say, “All these detailed points can be addressed when these instruments come before Parliament”. That is a good development. However, there are three questions that are worth putting on the record now so that we have time to think about them.
First, what consideration will be given to the impact on services that do not follow a classic revenue model but instead rely on donations and other sorts of support? I know that we will come back to this question in a later group but there are some very large internet service providers that are not the classic advertising-funded model, instead relying on foundations and other things. They will have significant questions about what we would judge their qualifying worldwide revenue to be, given that they operate to these very different models.
The second question concerns the impact on services that may have a very large footprint outside the UK, and significant worldwide revenues, but which do very little business within the UK. The amendment that the Minister has tabled about group revenues is also relevant here. You can imagine an entity which may be part of a very large worldwide group making very significant revenues around the world. It has a relatively small subsidiary that is offering a service in the UK, with relatively low revenues. There are some important questions there around the potential impact of the fees on decision-making within that group. We have discussed how we do not want to end up with less choice for consumers of services in the UK. There is an interesting question there as to whether getting the fee level wrong might lead to worldwide entities saying, “If you’re going to ask me to pay a fee based on my qualifying worldwide revenue, the UK market is just not worth it”. That may particularly true if, for example, the European Union and other markets are also levying a fee. You can see a rational business choice of, “We’re happy to pay the fee to the EU but not to Ofcom if it is levied at a rate that is disproportionate to the business that we do here”.
The third and very topical question is about the Government’s thinking about services with declining revenues but whose safety needs are not reducing and may even be increasing. I hope as I say this that people have Twitter in mind, which has very publicly told us that its revenue is going down significantly. It has also very publicly fired most of its trust and safety staff. You can imagine a model within which, because its revenue is declining, it is paying less to Ofcom precisely when Ofcom needs to do more supervision of it.
I hope that we can get some clarity around the Government’s intentions in these circumstances. I have referenced three areas where the worldwide qualifying revenue calculation may go a little awry. The first is where the revenue is not classic commercial income but comes from other sources. The second is where the footprint in the UK is very small but it is otherwise a large global company which we might worry will withdraw from the market. The third, and perhaps most important, is what the Government’s intention is where a company’s revenue is declining and it is managing its platform less well and its Ofcom needs increase, and what we would expect to happen to the fee level in those circumstances.
Lord Stevenson of Balmacara (Lab)
My Lords, there is very little to add to that. These are important questions. I simply was struck by the thought that the amount of work, effort and thought that has gone into this should not be kept within this Bill. I wonder whether the noble Lord has thought of offering his services to His Majesty’s Treasury, which has difficulty in raising tax from these companies. It would be nice to see that problem resolved.
Lord Parkinson of Whitley Bay (Con)
I am looking forward to returning to arts and heritage; I will leave that to my noble friend Lady Penn.
The noble Lord, Lord Allan, asked some good questions. He is right: the provisions and the parliamentary scrutiny allow for the flexibility for all these things to be looked at and scrutinised in the way that he set out. I stress that the fee regime is designed to be fair to industry; that is central to the approach we have taken. The Bill stipulates that Ofcom must charge only proportionate and justifiable fees to industry. The provisions that Ofcom can make via regulation about the qualifying worldwide revenue aim to ensure that fees are truly representative of the revenue relating to the regulated service and that they will encourage financial transparency. They also aim to aid companies with complex structures which would otherwise struggle to segregate revenues attributable to the provider and its connected entities.
The revenue of the group undertaking can be considered in scope of a provider’s qualifying worldwide revenue if the entity was a member of the provider’s group during any part of the qualifying period and the entity receives during the qualifying period any amount referrable to a regulated service. The regulations provide Ofcom with a degree of flexibility as to whether or not to make such provisions, because Ofcom will aim to keep the qualifying worldwide revenue simple.
I am grateful for noble Lords’ support for the amendments and believe that they will help Ofcom and the Government to structure a fair and transparent fee regime which charges proportionate fees to fund the cost of the regulatory regime that the Bill brings in.
“(3A) The Statutory Instruments Act 1946 applies in relation to OFCOM’s powers to make regulations under this Act as if OFCOM were a Minister of the Crown.(3B) The Documentary Evidence Act 1868 (proof of orders and regulations etc) has effect as if—(a) OFCOM were included in the first column of the Schedule to that Act;(b) OFCOM and persons authorised to act on their behalf were mentioned in the second column of that Schedule.”Member’s explanatory statement
This amendment makes technical provision in relation to regulations made by OFCOM under the Bill.
“(aa) regulations under section (“Regulations by OFCOM about qualifying worldwide revenue etc”)(1),”Member’s explanatory statement
This amendment provides that regulations made by OFCOM under subsection (1) of the new Clause 76 proposed in my name regarding “qualifying worldwide revenue” etc are subject to the affirmative Parliamentary procedure.
“(m) regulations under paragraph 5(9) of Schedule 13,”Member’s explanatory statement
This amendment provides that regulations made by OFCOM under paragraph 5(9) of Schedule 13 regarding “qualifying worldwide revenue” etc for the purposes of that paragraph are subject to the affirmative Parliamentary procedure.
“(7A) A statutory instrument containing the first regulations under paragraph 1(1) of Schedule 11 (whether alone or with regulations under paragraph 1(2) or (3) of that Schedule) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(7B) Any other statutory instrument containing regulations under paragraph 1(1) of Schedule 11 is subject to annulment in pursuance of a resolution of either House of Parliament.”Member’s explanatory statement
This amendment provides that the first regulations made under paragraph 1(1) of Schedule 11 (regulations specifying Category 1 threshold conditions) are subject to the affirmative Parliamentary procedure.
Lord Parkinson of Whitley Bay (Con)
My Lords, as I was eagerly anticipating, government Amendments 238A and 238D seek to change the parliamentary process for laying the first regulations specifying the category 1 threshold conditions from the negative to the affirmative procedure. I am pleased to bring forward this change in response to the recommendation of your Lordships’ Delegated Powers and Regulatory Reform Committee.
The change will ensure that there are adequate levels of parliamentary scrutiny of the first regulations specifying the category 1 threshold conditions. This is appropriate given that the categorisation of category 1 services will lead to the most substantial duties on the largest and most influential services. As noble Lords are aware, these include the duties on user empowerment, user identity verification, journalistic and news publisher content, content of democratic importance, and fraudulent advertising.
Category 2A services will have only additional transparency and fraudulent advertising duties, and category 2B services will be subject only to additional transparency reporting duties. The burden of these duties is significantly less than the additional category 1 duties, and we have therefore retained the use of the negative resolution procedure for these regulations, as they require less parliamentary scrutiny.
Future changes to the category 1 threshold conditions will also use the negative procedure. This will ensure that the regime remains agile in responding to change, which I know was of particular concern to noble Lords when we debated the categorisation group in Committee. Keeping the negative procedure for such subsequent uses will avoid the risk of future changes being subject to delays because of parliamentary scheduling. I beg to move.
Baroness Morgan of Cotes (Con)
My Lords, I shall speak to Amendment 245. I would like to thank my noble friend the Minister, and also the Minister on leave, for the conversations that I have had with them about this amendment and related issues. As we have already heard, the platform categorisation is extremely important. So far, much of it is unknown, including which sites are actually going to be in which categories. For example, we have not yet seen any proposed secondary regulations. As my noble friend has just outlined, special duties apply, especially for those sites within category 1—user empowerment in particular, but also other duties relating to content and fraudulent advertisements.
Clause 85 and Schedule 11 set out the thresholds for determining which sites will be in category 1, category 2A or category 2B. I am very mindful of the exhortation of the noble Lord, Lord Stevenson, about being brief, but it is amazing how much you have to say about one word to explain this amendment. This amendment proposes to change an “and” to an “or” in relation to determining which sites would fall within category 1. It would move from a test of size “and” functionality to a test of size “or” functionality. This would give Ofcom more flexibility to decide which platforms really need category 1 designation. Category 1 should not be decided just on size; it should also be possible to determine it on the basis of functionality.
Functionality is defined in the Bill in Clause 208. We will get to those amendments shortly, but there is no doubt from what the Government have already conceded, or agreed with those of us who have been campaigning passionately on the Bill for a number of years, that functionality can make a platform harmful. It is perfectly possible to have small platforms that both carry highly harmful content and themselves become harmful in the way that they are designed. We have heard many examples and I will not detain the House with them, but I draw attention to two particular sites which capture how broad this is. The perpetrators of offline hate crimes are often linked to these small platforms. For example, the perpetrator of the 2018 Tree of Life synagogue mass shooting had an online presence on the right-wing extremist social network Gab. In the UK, Jake Davison, the self-proclaimed incel who killed five people in Plymouth in 2021, frequented smaller incel forums after he was banned from Reddit in the days leading up to the mass shooting.
I also want to share with noble Lords an email that I received just this week from a family who had been to see their Member of Parliament, Matt Rodda MP, and also the noble Baroness, Lady Kidron, who I know is very regretful that she cannot be here today. I thank Victoria and Jean Eustace for sharing the story of their sister and daughter. Victoria wrote: “I am writing to you regarding the Online Safety Bill, as my family and I are concerned it will not sufficiently protect vulnerable adults from harm. My sister, Zoe Lyalle, killed herself on 26 May 2020, having been pointed towards a method using an online forum called Sanctioned Suicide. Zoe was 18 years old at the time of her death and as such technically an adult, but she was autistic, so she was emotionally less mature than many 18 year- olds. She found it difficult to critically analyse written content”. She says that “The forum in question is not large and states on its face that it does not encourage suicide, although its content does just that”. The next part I was even more shocked about: “Since Zoe’s death, we have accessed her email account. The forum continues to email Zoe, providing her with updates on content she may have missed while away from the site, as well as requesting donations. One recent email included a link to a thread on the forum containing tips on how best to use the precise method that Zoe had employed”.
In her note to me, the Minister on leave said that she wanted to catch some of the platforms we are talking about with outsized influence. In my reply, I said that those sites on which people are encouraged to take their own lives or become radicalised and therefore take the harms they are seeing online into the real world undoubtedly exercise influence and should be tackled.
It is also perfectly possible for us to have large but safe platforms. I know that my noble friend Lord Moylan may want to discuss this in relation to sites that he has talked about already on this Bill. The risk of the current drafting is a flight of users from these large platforms, newly categorised as category 1, to the small, non-category 1 platforms. What if a platform becomes extremely harmful very quickly? How will it be recategorised speedily but fairly and involving parliamentary oversight?
The Government have run a variety of arguments as to why the “and” in the Bill should not become an “or”. They say that it creates legal uncertainty. Every Bill creates legal uncertainty; that is why we have an army of extremely highly paid lawyers, not just in this country but around the world. They say that what we are talking about is broader than illegal content or content related to children’s safety, but they have already accepted an earlier amendment on safety by design and, in subsections (10) to (12) of Clause 12, that specific extra protections should be available for content related to
“suicide or an act of deliberate self-injury, or … an eating disorder or behaviours associated with an eating disorder”
or abusive content relating to race, religion, sex, sexual orientation, disability or gender reassignment and that:
“Content is within this subsection if it incites hatred against people”.
The Government have already breached some of their own limits on content that is not just illegal or relates to child safety duties. In fact, they have agreed that that content should have enhanced triple-shield protection.
The Government have also said that they want to avoid burdens on small but low-harm platforms. I agree with that, but with an “or” it would be perfectly possible for Ofcom to decide by looking at size or functionality and to exclude those smaller platforms that do not present the harm we all care about. The Minister may also offer me a review of categorisation; however, it is a review of the tiers of categorisation and not the sites within the categories, which I think many of us will have views on over the years.
I come to what we should do on this final day of Report. I am very thankful to those who have had many conversations on this, but there is a fundamental difference of opinion in this House on these matters. We will talk about functionality shortly and I am mindful of the pre-legislative scrutiny committee’s recommendation that this legislation should adopt
“a more nuanced approach, based not just on size and high-level functionality, but factors such as risk, reach, user base, safety performance, and business model”.
There should be other factors. Ofcom should have the ability to decide whether it takes one factor or another, and not have a series of all the thresholds to be passed, to give it the maximum flexibility. I will listen very carefully to what my noble friend the Minister and other noble Lords say, but at this moment I intend to test the opinion of the House on this amendment.
Lord Knight of Weymouth (Lab)
My Lords, I have good news and bad news for the Minister. The good news is that we have no problem with his amendments. The bad news, for him, is that we strongly support Amendment 245 from the noble Baroness, Lady Morgan of Coates, which, as others have said, we think is a no-brainer.
The beauty of the simple amendment has been demonstrated; it just changes the single word “and” to “or”. It is of course right to give Ofcom leeway—or flexibility, as the noble Baroness, Lady Finlay, described it—in the categorisation and to bring providers into the safety regime. What the noble Baroness, Lady Morgan, said about the smaller platforms, the breadcrumbing relating to the Jake Davison case and the functionality around bombarding Zoe Lyalle with those emails told the story that we needed to hear.
As it stands, the Bill requires Ofcom to always be mindful of size. We need to be more nuanced. From listening to the noble Lord, Lord Allan of Hallam—with his, as ever, more detailed analysis of how things work in practice—my concern is that in the end, if it is all about size, Ofcom will end up having to have a much larger number in scope on the categorisation of size in order to cover all the platforms that it is worried about. If we could give flexibility around size or functionality, that would make the job considerably easier.
We on this side think categorisation should happen with a proportionate, risk-based approach. We think the flexibility should be there, the Minister is reasonable—come on, what’s not to like?
Lord Parkinson of Whitley Bay (Con)
My Lords, I shall explain why the simple change of one word is not as simple as it may at first seem. My noble friend’s Amendment 245 seeks to amend the rule that a service must meet both a number-of-users threshold and a functionality threshold to be designated as category 1 or 2B. It would instead allow the Secretary of State by regulation to require a service to have to meet only one or other of the two requirements. That would mean that smaller user-to-user services could be so categorised by meeting only a functionality threshold.
In practical terms, that would open up the possibility of a future Secretary of State setting only a threshold condition about the number of users, or alternatively about functionality, in isolation. That would create the risk that services with a high number of users but limited functionality would be caught in scope of category 1. That could be of particular concern to large websites that operate with limited functionality for public interest reasons, and I am sure my noble friend Lord Moylan can think of one that fits that bill. On the other hand, it could capture a vast array of low-risk smaller services merely because they have a specific functionality—for instance, local community fora that have livestreaming capabilities. So we share the concerns of the noble Lord, Lord Allan, but come at it from a different perspective from him.
My noble friend Lady Morgan mentioned the speed of designation. The Bill’s approach to the pace of designation for the category 1 watchlist and register is flexible—deliberately so, to allow Ofcom to act as quickly as is proportionate to each emerging service. Ofcom will have a duty proactively to identify, monitor and evaluate emerging services, which will afford it early visibility when a service is approaching the category 1 threshold. It will therefore be ready to act accordingly to add services to the register should the need arise.
The approach set out in my noble friend’s Amendment 245 would not allow the Secretary of State to designate individual services as category 1 if they met one of the threshold conditions. Services can be designated as category 1 only if they meet all the relevant threshold conditions set out in the regulations made by the Secretary of State. That is the case regardless, whether the regulations set out one condition or a combination of several conditions.
The noble Baroness, Lady Finlay, suggested that the amendment would assist Ofcom in its work. Ofcom itself has raised concerns that amendments such as this—to introduce greater flexibility—could increase the risk of legal challenges to categorisation. My noble friend Lady Morgan was part of the army of lawyers before she came to Parliament, and I am conscious that the noble Lord, Lord Clement-Jones, is one as well. I hope they will heed the words of the regulator; this is not a risk that noble Lords should take lightly.
I will say more clearly that small companies can pose significant harm to users—I have said it before and I am happy to say it again—which is why there is no exemption for small companies. The very sad examples that my noble friend Lady Morgan gave in her speech related to illegal activity. All services, regardless of size, will be required to take action against illegal content, and to protect children if they are likely to be accessed by children. This is a proportionate regime that seeks to protect small but excellent platforms from overbearing regulation. However, I want to be clear that a small platform that is a font of illegal content cannot use the excuse of its size as an excuse for not dealing with it.
Category 1 services are those services that have a major influence over our public discourse online. Again, I want to be clear that designation as a category 1 service is not based only on size. The thresholds for category 1 services will be based on the functionalities of a service as well as the size of the user base. The thresholds can also incorporate other characteristics that the Secretary of State deems relevant, which could include factors such as a service’s business model or its governance. Crucially, Ofcom has been clear that it will prioritise engagement with high-risk or high-impact services, irrespective of their categorisation, to understand their existing safety systems and how they plan to improve them.
Member’s explanatory statement
This amendment provides that regulations made by OFCOM about supporting evidence to be supplied by providers for the purposes of Part 6 of the Bill (fees) are subject to the negative Parliamentary procedure.
Lord Kamall (Con)
I associate myself with the comments of my noble friend Lady Stowell on this whole issue, and I refer to my register of interests. One question we should be asking, which goes wider than this Bill, is: who regulates the regulators? It is a standard problem in political science and often known as principal agent theory, whereby the principals delegate powers to the agents for many reasons, and you see agency slack, whereby they develop their own powers beyond what was perhaps originally intended. For that reason, I completely associate myself with my noble friend Lady Stowell’s comments—and not because she chairs a committee on which I sit and I hope to get a favour of more speaking time on that committee. It is simply because, on its merit, we should all be asking who regulates the regulators and making sure that they are accountable. We are asking the same question of the Secretary of State, and quite rightly, the Secretary of State should be accountable for any measures they propose, but we should also be asking it of regulators.
Lord Parkinson of Whitley Bay (Con)
My Lords, I have always felt rather sorry for the first Viscount Addison, because what we refer to as the Salisbury convention is really the Salisbury-Addison convention. So while I am grateful to the noble Lord, Lord Stevenson, for his flattering speech, I shall insist on calling it the “Parkinson-Stevenson rule”, not least in the hope that that mouthful will encourage people to forget its name more swiftly.
I am grateful to the noble Lord for his attention to this matter and the useful discussions that we have had. His Amendment 239 would go beyond the existing legislative process for the delegated powers in the Bill by providing for parliamentary committees to be, in effect, inserted into the secondary legislative process. The delegated powers in the Bill are crucial for implementing the regime effectively and for ensuring that it keeps pace with changes in technology. Regulation-making powers are an established part of our legislative practice, and it would not be appropriate to deviate from existing processes.
However, I agree that ongoing parliamentary scrutiny of the regime will be crucial in helping to provide noble Lords and Members in another place with the reassurance that the implementation of the regime is as we intended. As the noble Lord noted, the establishment of the Science, Innovation and Technology Select Committee in another place means that there is a new dedicated committee looking at this important area of public policy. That provides an opportunity for cross-party scrutiny of the online safety regime and broader issues. While it will be, as he said, for respective committees to decide their priorities, we welcome any focus on online safety, and certainly welcome committees in both Houses co-operating effectively on this matter. I am certain that the Communications and Digital Committee of your Lordships’ House will continue to play a vital role in the scrutiny of the online safety regime.
We would fully expect these committees to look closely at the codes of practice, the uses of regulation-making powers and the powers of direction in a way that allows them to focus on key issues of interest. To support that, I can commit that the Government will do two things. First, where the Bill places a consultation requirement on the Government, we will ensure that the relevant committees have every chance to play a part in that consultation by informing them that the process is open. Secondly, while we do not wish to see the implementation process delayed, we will, where possible, share draft statutory instruments directly with the relevant committees ahead of the formal laying process. These timelines will be on a case-by-case basis, considering what is appropriate and reasonably practical. It will be for the committees to decide how they wish to engage with the information that we provide, but it will not create an additional approval process to avoid delaying implementation. I am grateful to my noble friend Lady Stowell of Beeston for her words of caution and wisdom on that point as both chairman of your Lordships’ committee and a former Leader of your Lordships’ House.
I hope that the noble Lord will be satisfied by what I have set out and will be willing to withdraw his amendment so that our rule might enter into constitutional history more swiftly.
Lord Stevenson of Balmacara (Lab)
I am very grateful to everyone who has contributed to the debate, despite my injunction that no one was to speak other than those key persons—but it was nice to hear views around the House in support for this proposal, with caution. The noble Baroness, Lady Stowell, was right to be clear that we have to be focused on where we are going on this; there is quite a lot at stake here, and it is a much bigger issue than simply this Bill and these particular issues. Her willingness to take this on in a wider context is most welcome, and I look forward to hearing how that goes. I am also very grateful for the unexpected but very welcome support from the noble Baroness, Lady Fox. It was nice that she finally agreed to meet on one piece of territory, if we cannot agree on some of the others. The noble Lord, Lord Kamall, is right to say that we need to pick up the much broader question about who regulates those who regulate us. This is not the answer, but it certainly gets us a step in the direction.
I was grateful to the Minister for suggesting that the “Parkinson rule” could take flight, but I shall continue to call it by a single name—double-barrelled names are not appropriate here. We will see the results of that in the consultation; the things that already have to be consulted about will be offered to the committees, and it is up to them to respond on that, but it is a very good start. The idea that drafts and issues that are being prepared for future regulation will be shown ahead of the formal process is exactly where I wanted to be on this, so I am very grateful for that. I withdraw the amendment.
Member’s explanatory statement
This amendment omits a reference to regulations made by the Secretary of State. Details about supporting evidence etc to accompany providers’ notifications for the purposes of the fees regime are now to be contained in regulations made by OFCOM (see the new Clause 76 proposed in my name).
“Regulations by OFCOM about qualifying worldwide revenue etc
(1) For the purposes of this Part, OFCOM may by regulations make provision—(a) about how the qualifying worldwide revenue of a provider of a regulated service is to be determined, and(b) defining the “qualifying period” in relation to a charging year.(2) OFCOM may by regulations also make provision specifying or describing evidence, documents or other information that providers must supply to OFCOM for the purposes of section 74 (see subsection (3)(b) of that section), including provision about the way in which providers must supply the evidence, documents or information.(3) Regulations under subsection (1)(a) may provide that the qualifying worldwide revenue of a provider of a regulated service (P) who is a member of a group during any part of a qualifying period is to include the qualifying worldwide revenue of any entity that—(a) is a group undertaking in relation to P for all or part of that period, and(b) receives or is due to receive, during that period, any amount referable (to any degree) to a regulated service provided by P.(4) Regulations under subsection (1)(a) may, in particular—(a) make provision about circumstances in which amounts do, or do not, count as being referable (to any degree) to a regulated service for the purposes of the determination of the qualifying worldwide revenue of the provider of the service or of an entity that is a group undertaking in relation to the provider;(b) provide for cases or circumstances in which amounts that—(i) are of a kind specified or described in the regulations, and(ii) are not referable to a regulated service,are to be brought into account in determining the qualifying worldwide revenue of the provider of the service or of an entity that is a group undertaking in relation to the provider.(5) Regulations which make provision of a kind mentioned in subsection (3) may include provision that, in the case of an entity that is a group undertaking in relation to a provider for part (not all) of a qualifying period, only amounts relating to the part of the qualifying period for which the entity was a group undertaking may be brought into account in determining the entity’s qualifying worldwide revenue.(6) Regulations under subsection (1)(a) may make provision corresponding to paragraph 5(8) of Schedule 13.(7) Before making regulations under subsection (1) OFCOM must consult—(a) the Secretary of State,(b) the Treasury, and(c) such other persons as OFCOM consider appropriate.(8) Before making regulations under subsection (2) OFCOM must consult the Secretary of State.(9) Regulations under this section may make provision subject to such exemptions and exceptions as OFCOM consider appropriate.(10) In this section—“group” means a parent undertaking and its subsidiary undertakings, reading those terms in accordance with section 1162 of the Companies Act 2006;“group undertaking” has the meaning given by section 1161(5) of that Act.”Member’s explanatory statement
This amendment substitutes Clause 76, which is about what is meant by “qualifying worldwide revenue”. The new Clause provides for OFCOM to make regulations about this and related matters for the purposes of the fees regime, and allows the regulations (among other things) to provide that revenue arising to certain entities in the same group as a provider of a regulated service is to be brought into account.
Member’s explanatory statement
This amendment provides that the Secretary of State must specify the threshold figure in regulations (rather than in a published statement).
Member’s explanatory statement
This amendment is consequential on the new Clause 76 proposed in my name.
Baroness Harding of Winscombe (Con)
My Lords, if I may, I shall speak very briefly, in the absence of my noble friend Lady Kidron, and because I am one of the signatories of this amendment, alongside the noble Lord, Lord Stevenson, and the right reverend Prelate the Bishop of Oxford. Amendment 240, together with a number of amendments that we will be debating today, turns on a fundamental issue that we have not yet resolved.
I came in this morning being told that we would be voting on this amendment and that other amendments later today would be consequential—I am a novice at this level of parliamentary procedure, so forgive me if I have got myself confused during the day—but I now understand that my noble friend considers this amendment to be consequential but, strangely, the amendments right at the end of the day are not. I just wanted to flag to the House that they all cover the same fundamental issue of whether harms can be unrelated to content, whether the harms of the online world can be to do with functionality—the systems and processes that drive the addiction that causes so much harm to our children.
It is a fundamental disagreement. I pay tribute to the amount of time the department, the Secretary of State and my noble friend have spent on it, but it is not yet resolved and, although I understand that I should now say that I beg leave to move the amendment formally, I just wanted to mark, with apologies, the necessity, most likely, of having to bring the same issue back to vote on later today.
Lord Parkinson of Whitley Bay (Con)
My Lords, His Majesty’s Government indeed agree that this is consequential on the other amendments, including Amendment 35, which the noble Baroness, Lady Kidron, previously moved at Report. We disagreed with them, but we lost that vote; this is consequential, and we will not force a Division on it.
We will have further opportunity to debate the fundamental issues that lie behind it, to which my noble friend Lady Harding just referred. Some of the amendments on which we may divide later, the noble Baroness, Lady Kidron, tabled after defeating the Government the other day, so we cannot treat them as consequential. We look forward to debating them; I will urge noble Lords not to vote for them, but we will have opportunity to discuss them later.
Member’s explanatory statement
Clause 82 is about OFCOM’s general duties. This amendment and the next amendment in my name insert a reference to Chapter 3A, which is the new Chapter containing the new duties imposed by the Clause proposed after Clause 67 in my name.
Member’s explanatory statement
See the explanatory statement for the preceding amendment in my name.
Member’s explanatory statement
This technical amendment is needed because the new notice requiring information in connection with an investigation into the death of a child (see the new Clause proposed after Clause 91 in my name) is also a form of information notice.
“(2A) The power conferred by subsection (1) also includes power to require a person within any of paragraphs (a) to (d) of subsection (4) to take steps so that OFCOM are able to remotely access the service provided by the person, or remotely access equipment used by the service provided by the person, in order to view, in particular—(a) information demonstrating in real time the operation of systems, processes or features, including functionalities and algorithms, used by the service;(b) information generated in real time by the performance of a test or demonstration of a kind required by a notice under subsection (1).”Member’s explanatory statement
This amendment makes it clear that OFCOM have the power by notice to require a provider of a regulated service (among others) to take steps to allow OFCOM to remotely access the service so that they can view the operation in real time of systems, processes, functionalities and algorithms, and tests and demonstrations.
“(iva) any duty set out in section (Disclosure of information about use of service by deceased child users) (deceased child users),”Member’s explanatory statement
This amendment mentions the new duties imposed by the Clause proposed after Clause 67 in my name in the Clause that sets out the purposes for which OFCOM may require people to provide information.
“Information in connection with an investigation into the death of a child
(1) OFCOM may by notice under this subsection require a relevant person to provide them with information for the purpose of—(a) responding to a notice given by a senior coroner under paragraph 1(2) of Schedule 5 to the Coroners and Justice Act 2009 in connection with an investigation into the death of a child, or preparing a report under section (OFCOM’s report in connection with investigation into a death) in connection with such an investigation;(b) responding to a request for information in connection with the investigation of a procurator fiscal into, or an inquiry held or to be held in relation to, the death of a child, or preparing a report under section (OFCOM’s report in connection with investigation into a death) in connection with such an inquiry;(c) responding to a notice given by a coroner under section 17A(2) of the Coroners Act (Northern Ireland) 1959 (c. 15 (N.I.)) in connection with—(i) an investigation to determine whether an inquest into the death of a child is necessary, or(ii) an inquest in relation to the death of a child,or preparing a report under section (OFCOM’s report in connection with investigation into a death) in connection with such an investigation or inquest. (2) The power conferred by subsection (1) includes power to require a relevant person to provide OFCOM with information about the use of a regulated service by the child whose death is under investigation, including, in particular—(a) content encountered by the child by means of the service,(b) how the content came to be encountered by the child (including the role of algorithms or particular functionalities),(c) how the child interacted with the content (for example, by viewing, sharing or storing it or enlarging or pausing on it), and(d) content generated, uploaded or shared by the child.(3) The power conferred by subsection (1) includes power to require a relevant person to obtain or generate information.(4) The power conferred by subsection (1) must be exercised in a way that is proportionate to the purpose mentioned in that subsection.(5) The power conferred by subsection (1) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings. (6) Nothing in this section limits the power conferred on OFCOM by section 91.(7) In this section—“inquiry” means an inquiry held, or to be held, under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2);“information” includes documents, and any reference to providing information includes a reference to producing a document (and see also section 92(9));“relevant person” means a person within any of paragraphs (a) to (e) of section 91(4).”Member’s explanatory statement
This amendment makes it clear that OFCOM have the power to obtain information for the purposes of responding to a notice given to them by a coroner or, in Scotland, a request from a procurator fiscal, in connection with the death of a child, including a power to obtain information from providers about the use of a service by the deceased child.
“(A1) A notice given under section 91(1) or (Information in connection with an investigation into the death of a child)(1) is referred to in this Act as an information notice.”Member’s explanatory statement
This amendment provides that a notice under the new Clause proposed in my name concerning OFCOM’s power to obtain information in connection with an investigation into the death of a child is called an “information notice” (as well as a notice under Clause 91). This ensures that provisions of the Bill that relate to information notices also apply to a notice given under that Clause.
Member’s explanatory statement
This amendment is consequential on the next amendment of Clause 94 in my name.
Lord Parkinson of Whitley Bay (Con)
My Lords, these amendments are concerned with Ofcom’s powers under Clause 111 to issue notices to deal with terrorism content and child sexual exploitation and abuse content.
I acknowledge the concerns which have been aired about how these powers work with encrypted services. I want to make it clear that the Bill does not require companies to break or weaken encryption, and we have built in strong safeguards to ensure that users’ privacy is protected. Encryption plays an important role online, and the UK supports its responsible use. I also want to make it clear that we are not introducing a blanket requirement for companies to monitor all content for all harms, at all times. That would not be proportionate.
However, given the serious risk of harm to children from sexual abuse and exploitation online, the regulator must have appropriate, tightly targeted powers to compel companies to take the most effective action to tackle such reprehensible illegal activity which is taking place on their services. We must ask companies to do all that is technically feasible to keep children safe, subject to stringent legal safeguards.
The powers in the Bill are predicated on risk assessments. If companies are managing the risks on their platform appropriately, Ofcom will not need to use its powers. As a last resort, however, where there is clear evidence of child sexual abuse taking place on a platform, Ofcom will be able to direct companies either to use, or to make best efforts to develop or source, accredited and accurate technology to identify and remove this illegal content. To be clear, these powers will not enable Ofcom or our law enforcement agencies to obtain any automatic access to the content detected. It is simply a matter of making private companies take effective action to prevent child sexual abuse on their services.
Ofcom must consider a wide range of matters when deciding whether a notice is necessary and proportionate, including the impacts on privacy and freedom of expression of using a particular technology on a particular service. Ofcom will only be able to require the use of technology accredited as highly accurate in detecting illegal child sexual abuse or terrorism content, vastly minimising the risk that content is wrongly identified.
In addition to these safeguards, as a public body, Ofcom is bound through the Human Rights Act 1998 by the European Convention on Human Rights, including Articles 8 and 10. Ofcom has an obligation not to act in a way which unduly interferes with the right to privacy and freedom of expression when carrying out its duties, for which it is held to account.
If appropriate technology does not exist which meets these requirements, Ofcom cannot require its use. That is why the powers include the ability for Ofcom to require companies to make best endeavours to develop or source a solution. It is right that we can require technology companies to use their considerable resources and expertise to develop the best possible protections for children in encrypted environments.
Despite the breadth of the existing safeguards, we recognise that concerns remain about these powers, and we have listened to the points that noble Lords raised in Committee about privacy and technical feasibility. That is why we are introducing additional safeguards. I am grateful for the constructive engagement I have had with noble Lords across your Lordships’ House on this issue, and I hope that the government amendments alleviate their concerns.
I turn first to our Amendments 250B, 250C, 250D, 255A, 256A, 257A, 257B, 257C and 258A, which require that Ofcom obtain a skilled persons’ report before issuing a warning notice and exercising its powers under Clause 111. This independent expert scrutiny will supplement Ofcom’s own expertise to ensure that it has a full understanding of relevant technical issues to inform its decision-making. That will include issues specific to the service in question, such as its design and relevant factors relating to privacy.
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords for their further scrutiny of this important but complex area, and for the engagement that we have had in the days running up to it as well. We know how child sexual exploitation and abuse offenders sadly exploit private channels, and the great danger that this poses, and we know how crucial these channels are for secure communication. That is why, where necessary and proportionate, and where all the safeguards are met, it is right that Ofcom can require companies to take all technically feasible measures to remove this vile and illegal content.
The government amendments in this group will go further to ensure that a notice is well informed and targeted and does not unduly restrict users’ rights. Privacy and safety are not mutually exclusive—we can and must have both. The safety of our children depends on it.
I make it clear again that the Bill does not require companies to break or weaken end-to-end encryption on their services. Ofcom can require the use of technology on an end-to-end encrypted service only when it is technically feasible and has been assessed as meeting minimum standards of accuracy. When deciding whether to issue a notice, Ofcom will engage in continual dialogue with the company and identify reasonable, technically feasible solutions to the issues identified. As I said in opening, it is right that we require technology companies to use their considerable resources and expertise to develop the best possible protections to keep children safe in encrypted environments. They are well placed to innovate to find solutions that protect both the privacy of users and the safety of children.
Baroness Stowell of Beeston (Con)
Just to be clear, am I right to understand my noble friend as saying that there is currently no technology that would be technically acceptable for tech companies to do what is being asked of them? Did he say that tech companies should be looking to develop the technology to do what may be required of them but that it is not currently available to them?
Lord Moylan (Con)
For clarification, if the answer to that is that the technology does not exist—which I believe is correct, although there are various snake oil salespeople out there claiming that it does, as the noble Baroness, Lady Fox of Buckley, said—my noble friend seems to be saying that the providers and services should develop it. This seems rather circular, as the Bill says that they must adopt an approved technology, which suggests a technology that has been imposed on them. What if they cannot and still get such a notice? Is it possible that these powers will never be capable of being used, especially if they do not co-operate?
Lord Parkinson of Whitley Bay (Con)
To answer my noble friend Lady Stowell first, it depends on the type of service. It is difficult to give a short answer that covers the range of services that we want to ensure are covered here, but we are seeking to keep this and all other parts of the Bill technology neutral so that, as services develop, technology changes and criminals, unfortunately, seek to exploit that, technology companies can continue to innovate to keep children safe while protecting the privacy of their users. That is a long-winded answer to my noble friend’s short question, but necessarily so. Ofcom will need to make its assessments on a case- by-case basis and can require a company to use its best endeavours to innovate if no effective and accurate technology is currently available.
While I am directing my remarks towards my noble friend, I will also answer a question she raised earlier on general monitoring. General monitoring is not a legally defined concept in UK law; it is a term in European Union law that refers to the generalised monitoring of user activity online, although its parameters are not clearly defined. The use of automated technologies is already fundamental to how many companies protect their users from the most abhorrent harms, including child sexual abuse. It is therefore important that we empower Ofcom to require the use of such technology where it is necessary and proportionate and ensure that the use of these tools is transparent and properly regulated, with clear and appropriate safeguards in place for users’ rights. The UK’s existing intermediary liability regime remains in place.
Amendment 255 from my noble friend Lord Moylan seeks to prevent Ofcom imposing any requirement in a notice that would weaken or remove end-to-end encryption. He is right that end-to-end encryption should not be weakened or removed. The powers in the Bill will not do that. These powers are underpinned by proportionality and technical feasibility; if it is not proportionate or technically feasible for companies to identify child sexual exploitation abuse content on their platform while upholding users’ right to privacy, Ofcom cannot require it.
I agree with my noble friend and the noble Baroness, Lady Fox, that encryption is a very important and popular feature today. However, with technology evolving at a rapid rate, we cannot accept amendments that would risk this legislation quickly becoming out of date. Naming encryption in the Bill would risk that happening. We firmly believe that the best approach is to focus on strong safeguards for upholding users’ rights and ensuring that measures are proportionate to the specific situation, rather than on general features such as encryption.
The Bill already requires Ofcom to consider the risk that technology could result in a breach of any statutory provision or rule of law concerning privacy and whether any alternative measures would significantly reduce the amount of illegal content on a service. As I have said in previous debates, Ofcom is also bound by the Human Rights Act not to act inconsistently with users’ rights.
Baroness Fox of Buckley (Non-Afl)
Will the Minister write to noble Lords who have been here in Committee and on Report in response to the fact that it is not just encryption companies saying that the demands of this clause will lead to the breaching of encryption, even though the Minister and the Government keep saying that it will not? As I have indicated, a wide range of scientists and technologists are saying that, whatever is said, demanding that Ofcom insists that technology notices are used in this way will inadvertently lead to the breaking of encryption. It would be useful if the Government at least explained scientifically and technologically why those experts are wrong and they are right.
Lord Parkinson of Whitley Bay (Con)
I am very happy to put in writing what I have said from the Dispatch Box. The noble Baroness may find that it is the same, but I will happily set it out in further detail.
I should make it clear that the Bill does not permit law enforcement agencies to access information held on platforms, including access to private channels. The National Crime Agency will be responsible for receiving reports from in-scope services via secure transmission, processing these reports and, where appropriate, disseminating them to other UK law enforcement bodies and our international counterparts. The National Crime Agency will process only information provided to it by the company; where it determines that the content is child sexual abuse content and meets the threshold for criminality, it can request further information from the company using existing powers.
I am glad to hear that my noble friend Lord Moylan does not intend to divide on his amendment. The restrictions it sets out are not ones we should impose on the Bill.
Amendments 256, 257 and 259 in the name of the noble Lord, Lord Stevenson of Balmacara, require a notice to be approved by a judicial commissioner appointed under the Investigatory Powers Act 2016 and remove Ofcom’s power to require companies to make best endeavours to develop or source new technology to address child sexual exploitation and abuse content.
Lord Allan of Hallam (LD)
I appreciate the tone of the Minister’s comments very much, but they are not entirely reassuring me. There is a debate going on out there: there are people saying, “We’ve got these fabulous technologies that we would like Ofcom to order companies to install” and there are companies saying, “That would be disastrous and break encryption if we had to install them”. That is a dualistic situation where there is a contest going on. My amendment seeks to make sure the conflict can be properly resolved. I do not think Ofcom on its own can ever do that, because Ofcom will always be defending what it is doing and saying “This is fine”. So, there has to be some other mechanism whereby people can say it is not fine and contest that. As I say, in this debate we are ignoring the fact that they are already out there: people saying “We think you should deploy this” and companies saying “It would be disastrous if we did”. We cannot resolve that by just saying “Trust Ofcom”.
Lord Parkinson of Whitley Bay (Con)
To meet the expectation the noble Lord voiced earlier, I will indeed point out that Ofcom can consult the ICO as a skilled person if it wishes to. It is important that we square the circle and look at these issues. The ICO will be able to be involved in the way I have set out as a skilled person.
Before I conclude, I want to address my noble friend Lady Harding’s questions on skilled persons. Given that notices will be issued on a case-by-case basis, and Ofcom will need to look at specific service design and existing systems of a provider to work out how a particular technology would interact with that design system, a skilled person’s report better fits this process by requiring Ofcom to obtain tailored advice rather than general technical advice from an advisory board. The skilled person’s report will be largely focused on the technical side of Ofcom’s assessment: that is to say, how the technology would interact with the service’s design and existing systems. In this way, it offers something similar to but more tailored than a technical advisory board. Ofcom already has a large and expert technology group, whose role it is to advice policy teams on new and existing technologies, to anticipate the impact of technologies and so on. It already has strong links with academia and with external researchers. A technical advisory board would duplicate that function. I hope that reassures my noble friend that the points she raised have been taken into account.
So I hope the noble Lord, Lord Allan, will not feel the need to divide—
Lord Stevenson of Balmacara (Lab)
Before the Minister finishes, I posed the question about whether, given the debate and issues raised, he felt completely satisfied that we had arrived at the right solution, and whether there was a case for withdrawing the amendment at this stage and bringing it back at Third Reading, having had further discussions and debate where we could all agree. I take it his answer is “no”.
Lord Parkinson of Whitley Bay (Con)
I am afraid it is “no”, and if the noble Lord, Lord Allan, does seek to divide, we will oppose his amendment. I commend the amendments standing in my name in this group to the House.
Member’s explanatory statement
This amendment is consequential on the new Clause proposed to be inserted in my name after Clause 111. It omits words in Clause 94 (skilled person’s reports) because that new Clause now requires OFCOM to obtain a skilled person’s report before giving a provider a notice under Clause 111.
“(xiia) section (Disclosure of information about use of service by deceased child users) (deceased child users);” Member’s explanatory statement
This amendment has the effect that OFCOM may require a skilled person’s report in relation to compliance with the new duties imposed by the Clause proposed after Clause 67 in my name.
“(4A) The power to observe the carrying on of the regulated service at the premises includes the power to view, using equipment or a device on the premises, information generated in real time by the performance of a test or demonstration required by a notice given under paragraph 3.”Member’s explanatory statement
This amendment ensures that during an inspection of a service, OFCOM have the power to observe a test or demonstration of which notice has been given.
“(3A) In subsection (3), after paragraph (h) insert—“(ha) a person appointed under—(i) paragraph 1 of Schedule 3 to the Coroners and Justice Act 2009, or(ii) section 2 of the Coroners Act (Northern Ireland) 1959 (c. 15 (N.I.));(hb) the procurator fiscal, within the meaning of the enactment mentioned in subsection (5)(s);”.(3B) In subsection (5)—(a) before paragraph (d) insert—“(ca) the Coroners Act (Northern Ireland) 1959;”,(b) after paragraph (na) insert—“(nb) Part 1 of the Coroners and Justice Act 2009;”, and(c) after paragraph (r) insert—“(s) the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2).”.”Member’s explanatory statement
This amendment ensures that it is not necessary for OFCOM to obtain the consent of providers of internet services before disclosing information to a coroner or, in Scotland, procurator fiscal, who is investigating a person’s death.
Member’s explanatory statement
This is a technical drafting change needed because section 24B of the Communications Act 2003 has been amended after this Bill was introduced.
“(za) section (Requirement to obtain skilled person’s report), which requires OFCOM to obtain a skilled person’s report before giving a notice under subsection (1),”Member’s explanatory statement
This amendment is consequential on the new Clause proposed to be inserted in my name after Clause 111. It inserts a signpost to the requirement in that new Clause to obtain a skilled person’s report before giving a provider a notice under Clause 111.
“Requirement to obtain skilled person’s report
(1) OFCOM may give a notice under section 111(1) to a provider only after obtaining a report from a skilled person appointed by OFCOM under section 94(3).(2) The purpose of the report is to assist OFCOM in deciding whether to give a notice under section 111(1), and to advise about the requirements that might be imposed by such a notice if it were to be given.”Member’s explanatory statement
This amendment requires OFCOM to obtain a skilled person’s report under Clause 94 before giving a notice to a provider under Clause 111.
“(za) contain a summary of the report obtained by OFCOM under section (Requirement to obtain skilled person’s report),”Member’s explanatory statement
This amendment requires a warning notice given to a provider to contain a summary of the skilled person’s report obtained by OFCOM under the new Clause proposed to be inserted in my name after Clause 111.
“(ga) the contents of the skilled person’s report obtained as required by section (Requirement to obtain skilled person’s report);”Member’s explanatory statement
This amendment requires OFCOM to consider the contents of the skilled person’s report obtained as required by the new Clause proposed to be inserted in my name after Clause 111, as part of OFCOM’s decision about whether it is necessary and proportionate to give a notice to a provider under Clause 111.
Member’s explanatory statement
This amendment provides that, if OFCOM propose to issue a further notice under Clause 111, it is not necessary to obtain a further skilled person’s report under the new Clause proposed to be inserted in my name after Clause 111.
“Section (Assessment duties: user empowerment) | Assessments related to duty in section 12(2)” |
This amendment ensures that OFCOM are able to use their enforcement powers in Chapter 6 of Part 7 in relation to a breach of any of the new duties imposed by the Clause proposed after Clause 11 in my name.
Member’s explanatory statement
This amendment is consequential on the amendments of Clause 125 in my name.
“(ba) specify which of those requirements (if any) have been designated as CSEA requirements (see subsections (5A) and (5B)),”Member’s explanatory statement
This amendment is consequential on the next amendment to this Clause in my name.
Lord Parkinson of Whitley Bay (Con)
My Lords, in moving Amendment 262A, I will speak also to the other government amendments in the group. These amendments address the Bill’s enforcement powers. Government Amendments 262A, 262B, 262C, 264A and 266A, Amendments 265, 266 and 267, tabled by my noble friend Lord Bethell, and Amendment 268 tabled by the noble Lord, Lord Stevenson of Balmacara, relate to senior management liability. Amendment 268C from the noble Lord, Lord Weir of Ballyholme, addresses interim service restriction orders.
In Committee, we amended the Bill to create an offence of non-compliance with steps set out in confirmation decisions that relate to specific children’s online safety duties, to ensure that providers and individuals can be held to account where their non-compliance risks serious harm to children. Since then, we have listened to concerns raised by noble Lords and others, in particular that the confirmation decision offence would not tackle child sexual exploitation and abuse. That is why the government amendments in this group will create a new offence of a failure to comply with a child sexual exploitation and abuse requirement imposed by a confirmation decision. This will mean that providers and senior managers can be held liable if they fail to comply with requirements to take specific steps as set out in Ofcom’s confirmation decision in relation to child sexual exploitation and abuse on their service.
Ofcom must designate a step in a confirmation decision as a child sexual exploitation and abuse requirement, where that step relates, whether or not exclusively, to a failure to comply with specific safety duties in respect of child sexual exploitation and abuse content. Failure to comply with such a requirement will be an offence. This approach is necessary, given that steps may relate to multiple or specific kinds of illegal content, or systems and process failures more generally. This approach will ensure that services know from the confirmation decision when they risk criminal liability, while providing sufficient legal certainty via the specified steps to ensure that the offence can be prosecuted effectively.
The penalty for this offence is up to two years in prison, a fine or both. Through Clause 182, where an offence is committed with the consent or connivance of a senior manager, or attributable to his or her neglect, the senior manager, as well as the entity, will have committed the offence and can face up to two years in prison, a fine or both.
I thank my noble friend Lord Bethell, as well as our honourable friends Miriam Cates and Sir William Cash in another place, for their important work in raising this issue and their collaborative approach as we have worked to strengthen the Bill in this area. I am glad that we have reached a position that will help to keep children safe online and drive a change in culture in technology companies. I hope this amendment reassures them and noble Lords that the confirmation decision offence will tackle harms to children effectively by ensuring that technology executives take the necessary steps to keep children safe online. I beg to move.
Lord Allan of Hallam (LD)
My Lords, I will briefly comment positively on the Minister’s explanation of how these offences might work, particularly the association of the liability with the failure to enforce a confirmation decision, which seems entirely sensible. In an earlier stage of the debate, there was a sense that we might associate liability with more general failures to enforce a duty of care. That would have been problematic, because the duty of care is very broad and requires a lot of pieces to be put in place. Associating the offences with the confirmation decision makes absolute sense. Having been in that position, if, as an executive in a tech company, I received a confirmation decision that said, “You must do these things”, and I chose wilfully to ignore that decision, it would be entirely reasonable for me to be held potentially criminally liable for that. That association is a good step forward.
Baroness Merron (Lab)
My Lords, we welcome the government amendments in this group to bring child sexual exploitation and abuse failures into the scope of the senior manager liability and enforcement regime but consider that they do not go far enough. On the government amendments, I have a question for the Minister about whether, through Clause 122, it would be possible to require a company that was subject to action to do some media literacy as part of its harm reduction; in other words, would it be possible for Ofcom to use its media literacy powers as part of the enforcement process? I offer that as a helpful suggestion.
We share the concerns expressed previously by the noble Lord, Lord Bethell, about the scope of the senior manager liability regime, which does not cover all the child safety duties in the Bill. We consider that Amendment 268, in the name of my noble friend Lord Stevenson, would provide greater flexibility, giving the possibility of expanding the list of duties covered in the future. I have a couple of brief questions to add to my first question. Will the Minister comment on how the operation of the senior manager liability regime will be kept under review? This has, of course, been something of a contentious issue in the other place, so could the Minister perhaps tell your Lordships’ House how confident he is that the current position is supported there? I look forward to hearing from the Minister.
Lord Parkinson of Whitley Bay (Con)
I did not quite finish writing down the noble Baroness’s questions. I will do my best to answer them, but I may need to follow up in writing because she asked a number at the end, which is perfectly reasonable. On her question about whether confirmation decision steps could include media literacy, yes, that is a good idea; they could.
Amendment 268, tabled by the noble Lord, Lord Stevenson of Balmacara, seeks to enable the Secretary of State, through regulation, to add to the list of duties which are linked to the confirmation decision offence. We are very concerned at the prospect of allowing an unconstrained expansion of the confirmation decision offence. In particular, as I have already set out, we would be concerned about expansion of those related to search services. There is also concern about unconstrained additions of any other duties related to user-to-user services as well.
We have chosen specific duties which will tackle effectively key issues related to child safety online and tackling child abuse while ensuring that the confirmation decision offence remains targeted. Non-compliance with a requirement imposed by a confirmation decision in relation to such duties warrants the prospect of criminal enforcement on top of Ofcom’s extensive civil enforcement powers. Making excessive changes to the offence risks shifting the regime towards a more punitive and disproportionate enforcement model, which would represent a significant change to the framework as a whole. Furthermore, expansion of the confirmation decision offence could lead to services taking an excessively cautious approach to content moderation to avoid the prospect of criminal liability. We are also concerned that such excessive expansion could significantly increase the burden on Ofcom.
I am grateful to the noble Lord, Lord Weir of Ballyholme, and the noble Baroness, Lady Benjamin, for the way they set out their Amendment 268C. We are concerned about this proposal because it is important that Ofcom can respond to issues on a case-by-case basis: it may not always be appropriate or proportionate to use a specific enforcement power in response to a suspected breach. Interim service restriction orders are some of the strongest enforcement powers in the Bill and will have a significant impact on the service in question. Their use may be disproportionate in cases where there is only a minor breach, or where a service is taking steps to deal with a breach following a provisional notice of contravention.
“(5A) If the condition in subsection (5B) is met in relation to a requirement imposed by a confirmation decision which is of a kind described in subsection (1), OFCOM must designate the requirement as a “CSEA requirement” for the purposes of section 127(2A) (offence of failure to comply with confirmation decision).(5B) The condition referred to in subsection (5A) is that the requirement is imposed (whether or not exclusively) in relation to either or both of the following—(a) a failure to comply with section 9(2)(a) or (3)(a) in respect of CSEA content, or in respect of priority illegal content which includes CSEA content; (b) a failure to comply with section 9(2)(b) in respect of an offence specified in Schedule 6 (CSEA offences), or in respect of priority offences which include such an offence.”Member’s explanatory statement
This amendment provides that where a confirmation decision imposes a requirement to take steps in relation to a failure to comply with a duty under Clause 9(2)(a), (2)(b) or (3)(a) in respect of CSEA content or an offence under Schedule 6, OFCOM must designate the requirement as a CSEA requirement with the result that failure to comply with it is an offence (see the amendment inserting subsection (2A) into Clause 127 in my name).
Member’s explanatory statement
This amendment is consequential on the next amendment in my name.
Member’s explanatory statement
This is a technical amendment which adjusts the language of this provision.
“(2A) A person to whom a confirmation decision is given commits an offence if, without reasonable excuse, the person fails to comply with a CSEA requirement imposed by the decision (see section 122 (5A) and (5B)).”Member’s explanatory statement
This amendment provides that a person commits an offence if the person fails to comply, without reasonable excuse, with a CSEA requirement imposed by a confirmation decision given to the person (see the amendment inserting new subsections (5A) and (5B) into Clause 122 in my name.)
“(9) Regulations made by OFCOM under section (Regulations by OFCOM about qualifying worldwide revenue etc)(1)(a)(including regulations making provision of a kind mentioned in section (Regulations by OFCOM about qualifying worldwide revenue etc)(3), (4) or (5)) apply for the purpose of determining the qualifying worldwide revenue of a provider of a regulated service for an accounting period as mentioned in this paragraph as they apply for the purpose of determining the qualifying worldwide revenue of a provider of a regulated service for a qualifying period for the purposes of Part 6.”Member’s explanatory statement
This amendment provides that regulations under the new Clause 76 proposed in my name about “qualifying worldwide revenue” for the purposes of Part 6 of the Bill (fees) also applies for the purposes of financial penalties under paragraph 4 of Schedule 13.
Member’s explanatory statement
This amendment is consequential on the new Clause proposed to be inserted after Clause 149 in my name expanding OFCOM’s duties to promote media literacy in relation to regulated user-to-user and search services.
Lord Clement-Jones (LD)
My Lords, I think the upshot of this brief debate is that the noble Lord, Lord Knight —how he was tracked down in a Pret A Manger, I have no idea; he is normally too fast-moving for that—in his usual constructive and creative way is asking the Government to constructively engage to find a solution, which he discussed in that Pret A Manger, involving a national helpline, the NSPCC and the Children’s Commissioner, for the very reasons that he and my noble friend Lord Allan have put forward. In no way would this be some of kind of quango, in the words of the noble Baroness, Lady Fox.
This is really important stuff. It could be quite a game-changer in the way that the NSPCC and the Children’s Commissioner collaborate on tackling the issues around social media, the impact of the new rights under the Bill and so on. I very much hope that the Government will be able to engage positively on this and help to bring the parties together to, in a sense, deliver something which is not in the Bill but could be of huge importance.
Lord Parkinson of Whitley Bay (Con)
My Lords, first, I reassure noble Lords that the Government are fully committed to making sure that the interests of children are both represented and protected. We believe, however, that this is already achieved through the provisions in the Bill.
Rather than creating a single advocacy body to research harms to children and advocate on their behalf, as the noble Lord’s amendment suggests, the Bill achieves the same effect through a combination of Ofcom’s research functions, the consultation requirements and the super-complaints provisions. Ofcom will be fully resourced with the capacity and technological ability to assess and understand emerging harms and will be required to research children’s experiences online on an ongoing basis.
For the first time, there will be a statutory body in place charged with protecting children from harm online. As well as its enforcement functions, Ofcom’s research will ensure that the framework remains up to date and that Ofcom itself has the latest, in-depth information to aid its decision-making. This will ensure that new harms are not just identified in retrospect when children are already affected by them and complaints are made; instead, the regulator will be looking out for new issues and working proactively to understand concerns as they develop.
Children’s perspectives will play a central role in the development of the framework, as Ofcom will build on its strong track record of qualitative research to ensure that children are directly engaged. For example, Ofcom’s ongoing programme, Children’s Media Lives, involves engaging closely with children and tracking their views and experiences year on year.
Alongside its own research functions, super-complaints will ensure that eligible bodies can make complaints on systemic issues, keeping the regulator up to date with issues as they emerge. This means that if Ofcom does not identify a systemic issue affecting children for any reason, it can be raised and then dealt with appropriately. Ofcom will be required to respond to the super-complaint, ensuring that its subsequent decisions are understood and can be scrutinised. Complaints by users will also play a vital role in Ofcom’s horizon scanning and information gathering, providing a key means by which new issues can be raised.
The extensive requirements for Ofcom to consult on codes of practice and guidance will further ensure that it consistently engages with groups focused on the interests of children as the codes and guidance are developed and revised. Children’s interests are embedded in the implementation and delivery of this framework.
The Children’s Commissioner will play a key and ongoing role. She will be consulted on codes of practice and any further changes to those codes. The Government are confident that she will use her statutory duties and powers effectively to understand children’s experiences of the digital world. Her primary function as Children’s Commissioner for England is promoting and protecting the rights of children in England and to promote and protect the rights of children across the United Kingdom where those rights are or may be affected by reserved matters. As the codes of practice and the wider Bill relate to a reserved area of law—namely, internet services—the Children’s Commissioner for England will be able to represent the interests of children from England, Scotland, Wales and Northern Ireland when she is consulted on the preparation of codes of practice. That will ensure that children’s voices are represented right across the UK. The Children’s Commissioner for England and her office also regularly speak to the other commissioners about ongoing work on devolved and reserved matters. Whether she does that in branches of Pret A Manger, I do not know, but she certainly works with her counterparts across the UK.
I am very happy to take back the idea that the noble Lord has raised and discuss it with the commissioner. There are many means by which she can carry out her duties, so I am very happy to take that forward. I cannot necessarily commit to putting it in legislation, but I shall certainly commit to discussing it with her. On the proposals in the noble Lord’s amendment, we are concerned that a separate child user advocacy body would duplicate the functions that she already has, so I hope with that commitment he will be happy to withdraw.
Lord Knight of Weymouth (Lab)
My Lords, I am grateful to those who have spoken in this quick debate and for the support from the noble Lord, Lord Allan of Hallam, and the noble Baroness, Lady Fox, about children’s voices being heard. I think that we are getting to the point when there will not be a quango or indeed a minefield, so that makes us all happy. The Minister almost derailed me, because so much of his speaking note was about the interests of children and I am more interested in the voice of children being heard directly rather than people acting on their behalf and representing their interests, but his final comments around being happy to take the idea forward means that I am very happy to withdraw my amendment.
“OFCOM’s reports about use of age assurance
(1) OFCOM must produce and publish a report assessing—(a) how providers of regulated services have used age assurance for the purpose of compliance with their duties set out in this Act,(b) how effective the use of age assurance has been for that purpose, and(c) whether there are factors that have prevented or hindered the effective use of age assurance, or a particular kind of age assurance, for that purpose,(and in this section, references to a report are to a report described in this subsection).(2) A report must, in particular, consider whether the following have prevented or hindered the effective use of age assurance—(a) the costs to providers of using it, and(b) the need to protect users from a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of a regulated service (including, but not limited to, any such provision or rule concerning the processing of personal data).(3) Unless the Secretary of State requires the production of a further report (see subsection (6)), the requirement in subsection (1) is met by producing and publishing one report within the period of 18 months beginning with the day on which sections 11 and 72(2) come into force (or if those provisions come into force on different days, the period of 18 months beginning with the later of those days).(4) In preparing a report, OFCOM must consult—(a) the Information Commissioner, and(b) such other persons as OFCOM consider appropriate.(5) OFCOM must send a copy of a report to the Secretary of State, and the Secretary of State must lay it before Parliament.(6) The Secretary of State may require OFCOM to produce and publish a further report in response to—(a) the development of age assurance technology, or(b) evidence of the reduced effectiveness of such technology.(7) But such a requirement may not be imposed—(a) within the period of three years beginning with the date on which the first report is published, or(b) more frequently than once every three years.(8) For further provision about reports under this section, see section 149.(9) In this section “age assurance” means age verification or age estimation.”Member’s explanatory statement
This new Clause requires OFCOM to produce and publish a report about the use of age assurance by providers of regulated services.
“OFCOM’s report about use of app stores by children
(1) OFCOM must produce a report about the use of app stores by children.(2) In particular, the report must—(a) assess what role app stores play in children encountering content that is harmful to children, search content that is harmful to children or regulated provider pornographic content by means of regulated apps which the app stores make available,(b) assess the extent to which age assurance is currently used by providers of app stores, and how effective it is, and(c) explore whether children’s online safety would be better protected by the greater use of age assurance or particular kinds of age assurance by such providers, or by other measures.(3) OFCOM must publish the report during the period beginning two years, and ending three years, after the day on which sections 11 and 25 come into force (or if those sections come into force on different days, the later of those days).(4) For further provision about the report under this section, see section 149.(5) In this section—“app” includes an app for use on any kind of device, and “app store” is to be read accordingly;“content that is harmful to children” has the same meaning as in Part 3 (see section 54);“regulated app” means an app for a regulated service;“regulated provider pornographic content” has the same meaning as in Part 5 (see section 70);“search content” has the same meaning as in Part 3 (see section 51).(6) In this section references to children are to children in the United Kingdom.”Member’s explanatory statement
This amendment requires OFCOM to produce a report about the use of app stores by children, including consideration of whether children would be better protected by greater use of age assurance.
Member’s explanatory statement
This amendment provides that the report that OFCOM must publish under Clause 148 (report about researchers’ access to information) must be published within 18 months of Clause 148 coming into force (rather than two years).
Member’s explanatory statement
This amendment provides that OFCOM must (rather than may) produce guidance about matters dealt with by the report published under Clause 148.
“OFCOM’s report in connection with investigation into a death
(1) Subsection (2) applies if OFCOM receive—(a) a notice from a senior coroner under paragraph 1(2) of Schedule 5 to the Coroners and Justice Act 2009 in connection with an investigation into the death of a person;(b) a request for information in connection with the investigation of a procurator fiscal into, or an inquiry held or to be held in relation to, the death of a person;(c) a notice from a coroner under section 17A(2) of the Coroners Act (Northern Ireland) 1959 (c. 15 (N.I.)) in connection with—(i) an investigation to determine whether an inquest into the death of a person is necessary, or(ii) an inquest in relation to the death of a person.(2) OFCOM may produce a report for use by the coroner or procurator fiscal, dealing with any matters that they consider may be relevant.(3) In subsection (1)(b) “inquiry” means an inquiry held, or to be held, under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2).” Member’s explanatory statement
This amendment makes it clear that OFCOM may produce a report in connection with a person’s death, if the coroner gives OFCOM a notice or, in Scotland, the procurator fiscal requests information, for that purpose.
“(aa) a report under section (OFCOM’s reports about use of age assurance) (report about use of age assurance),”Member’s explanatory statement
This amendment is consequential on the new Clause to be inserted after Clause 145 in my name. It ensures that the usual confidentiality provisions apply to matters contained in OFCOM’s report about the use of age assurance.
“CHAPTER 8MEDIA LITERACYMedia literacy
(1) Section 11 of the Communications Act is amended in accordance with subsections (2) to (5).(2) Before subsection (1) insert—“(A1) In this section—(a) subsection (1) imposes duties on OFCOM which apply in relation to material published by means of the electronic media (including by means of regulated services), and(b) subsections (1A) to (1E) expand on those duties, and impose further duties on OFCOM, in relation to regulated services only.”(3) After subsection (1) insert— “(1A) OFCOM must take such steps, and enter into such arrangements, as they consider most likely to be effective in heightening the public’s awareness and understanding of ways in which they can protect themselves and others when using regulated services, in particular by helping them to—(a) understand the nature and impact of harmful content and the harmful ways in which regulated services may be used, especially content and activity disproportionately affecting particular groups, including women and girls;(b) reduce their and others’ exposure to harmful content and to the use of regulated services in harmful ways, especially content and activity disproportionately affecting particular groups, including women and girls;(c) use or apply—(i) features included in a regulated service, including features mentioned in section 12(2) of the Online Safety Act 2023, and(ii) tools or apps, including tools such as browser extensions,so as to mitigate the harms mentioned in paragraph (b);(d) establish the reliability, accuracy and authenticity of content;(e) understand the nature and impact of disinformation and misinformation, and reduce their and others’ exposure to it;(f) understand how their personal information may be protected.(1B) OFCOM must take such steps, and enter into such arrangements, as they consider most likely to encourage the development and use of technologies and systems for supporting users of regulated services to protect themselves and others as mentioned in paragraph (a), (b), (c), (d) or (e) of subsection (1A), including technologies and systems which—(a) provide further context to users about content they encounter;(b) help users to identify, and provide further context about, content of democratic importance present on regulated user-to-user services;(c) signpost users to resources, tools or information raising awareness about how to use regulated services so as to mitigate the harms mentioned in subsection (1A)(b).(1C) OFCOM’s duty under subsection (1A) is to be performed in the following ways (among others)—(a) pursuing activities and initiatives,(b) commissioning others to pursue activities and initiatives,(c) taking steps designed to encourage others to pursue activities and initiatives, and(d) making arrangements for the carrying out of research (see section 14(6)(a)).(1D) OFCOM must draw up, and from time to time review and revise, a statement recommending ways in which others, including providers of regulated services, might develop, pursue and evaluate activities or initiatives relevant to media literacy in relation to regulated services.(1E) OFCOM must publish the statement and any revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.”(4) After subsection (2) insert— “(3) In this section and in section 11A,“regulated service” means—(a) a regulated user-to-user service, or(b) a regulated search service.“Regulated user-to-user service” and “regulated search service” have the same meaning as in the Online Safety Act 2023 (see section 3 of that Act).(4) In this section—(a) “content”, in relation to regulated services, means regulated user-generated content, search content or fraudulent advertisements;(b) the following terms have the same meaning as in the Online Safety Act 2023—“content of democratic importance” (see section 13 of that Act);“fraudulent advertisement” (see sections 33 and 34 of that Act);“harm” (see section 209 of that Act) (and “harmful” is to be interpreted consistently with that section);“provider”(see section 202 of that Act);“regulated user-generated content” (see section 49 of that Act);“search content” (see section 51 of that Act).”(5) In the heading, for “Duty” substitute “Duties”.(6) In section 14 of the Communications Act (consumer research), in subsection (6)(a), after “11(1)” insert “, (1A) and (1B)”.”Member’s explanatory statement
This amendment inserts provisions into section 11 of the Communications Act 2003 (OFCOM’s duties to promote media literacy). The new provisions expand on the existing duties so far as they relate to regulated user-to-user and search services, and impose new duties on OFCOM aimed at enhancing users’ media literacy.
“Media literacy strategy and media literacy statement
After section 11 of the Communications Act insert—“11A Regulated services: media literacy strategy and media literacy statement(1) OFCOM must prepare and publish a media literacy strategy within the period of one year beginning with the day on which the Online Safety Act 2023 is passed.(2) A media literacy strategy is a plan setting out how OFCOM propose to exercise their functions under section 11 in the period covered by the plan, which must be not more than three years.(3) In particular, a media literacy strategy must state OFCOM’s objectives and priorities for the period it covers.(4) Before the end of the period covered by a media literacy strategy, OFCOM must prepare and publish a media literacy strategy for a further period, ensuring that each successive strategy covers a period beginning immediately after the end of the last one. (5) In preparing or revising a media literacy strategy, OFCOM must consult such persons as they consider appropriate.(6) OFCOM’s annual report must contain a media literacy statement.(7) A media literacy statement is a statement by OFCOM—(a) summarising what they have done in the financial year to which the report relates in the exercise of their functions under section 11, and(b) assessing what progress has been made towards achieving the objectives and priorities set out in their media literacy strategy in that year.(8) A media literacy statement must include a summary and an evaluation of the activities and initiatives pursued or commissioned by OFCOM in the exercise of their functions under section 11 in the financial year to which the report relates.(9) The first annual report that is required to contain a media literacy statement is the report for the financial year during which OFCOM’s first media literacy strategy is published, and that first statement is to relate to the period from publication day until the end of that financial year.(10) But if OFCOM’s first media literacy strategy is published during the second half of a financial year—(a) the first annual report that is required to contain a media literacy statement is the report for the next financial year, and(b) that first statement is to relate to the period from publication day until the end of that financial year.(11) References in this section to OFCOM’s functions under section 11 are to those functions so far as they relate to regulated services.(12) In this section—“annual report” means OFCOM’s annual report under paragraph 12 of the Schedule to the Office of Communications Act 2002;“financial year” means a year ending with 31 March.””Member’s explanatory statement
This amendment requires OFCOM to produce a media literacy strategy every three years (or more frequently), and to include, in their annual report, a statement summarising and evaluating their media literacy activities, so far as they relate to regulated services, during the year.
“(15) For the purposes of subsections (8) and (9), a person who makes available on a service an automated tool or algorithm by means of which content is generated is to be regarded as having control over content so generated.”Member’s explanatory statement
This amendment is about who counts as the provider of a service (other than a user-to-user or search service) that hosts provider pornographic content for the purposes of the Bill. The amendment makes it clear that a person who controls a generative tool on the service, such as a generative AI bot, is regarded as controlling the content generated by that tool.
““Age verification” and “age estimation”
(1) This section applies for the purposes of this Act.(2) “Age verification” means any measure designed to verify the exact age of users of a regulated service.(3) “Age estimation” means any measure designed to estimate the age or age- range of users of a regulated service.(4) A measure which requires a user to self-declare their age (without more) is not to be regarded as age verification or age estimation.”Member’s explanatory statement
This new Clause defines age verification and age estimation, and makes it clear that mere self-declaration of age does not count as either.
Member’s explanatory statement
This amendment is made to ensure consistency of language in the Bill when referring to age verification and age estimation.
Baroness Merron (Lab)
My Lords, as we have heard, the noble Baroness, Lady Harding, made a very clear case in support of these amendments, tabled in the name of the noble Baroness, Lady Kidron, and supported by noble Lords from across the House. The noble Baroness, Lady Morgan, gave wise counsel to the Minister, as did the noble Lord, Lord Clement-Jones, that it is worth stepping back and seeing where we are in order to ensure that the Bill is in the right place. I urge the Minister to find the time and the energy that I know he has—he certainly has the energy and I am sure he will match it with the time—to speak to noble Lords over the coming Recess to agree a way to incorporate systems and functionality into the Bill, for all the reasons we have heard.
On Monday, my noble friend Lord Knight spoke of the need for a review about loot boxes and video games. When we checked Hansard, we saw the Minister had promised that such a review would be offered in the coming months. In an unusual turn of events, the Minister exceeded the timescale. We did not have to hear the words “shortly”, “in the summer” or “spring” or anything like that, because it was announced the very next day that the department would keep legislative options under review.
I make that point simply to thank the Minister for the immediate response to my noble friend Lord Knight. But, if we are to have such a review, does this not point very much to the fact that functionality and systems should be included in the Bill? The Minister has a very nice hook to hang this on and I hope that he will do so.
Lord Parkinson of Whitley Bay (Con)
My Lords, this is not just a content Bill. The Government have always been clear that the way in which a service is designed and operated, including its features and functionalities, can have a significant impact on the risk of harm to a user. That is why the Bill already explicitly requires providers to ensure their services are safe by design and to address the risks that arise from features and functionalities.
The Government have recognised the concerns which noble Lords have voiced throughout our scrutiny of the Bill, and those which predated the scrutiny of it. We have tabled a number of amendments to make it even more explicit that these elements are covered by the Bill. We have tabled the new introductory Clause 1, which makes it clear that duties on providers are aimed at ensuring that services are safe by design. It also highlights that obligations on services extend to the design and operation of the service. These obligations ensure that the consideration of risks associated with the business model of a service is a fundamental aspect of the Bill.
My noble friend Baroness Harding of Winscombe worried that we had made the Bill worse by adding this. The new clause was a collaborative one, which we have inserted while the Bill has been before your Lordships’ House. Let me reassure her and other noble Lords as we conclude Report that we have not made it worse by so doing. The Bill will require services to take a safety by design approach to the design and operation of their services. We have always been clear that this will be crucial to compliance with the legislation. The new introductory Clause 1 makes this explicit as an overarching objective of the Bill. The introductory clause does not introduce any new concepts; it is an accurate summary of the key provisions and objectives of the Bill and, to that end, the framework and introductory statement are entirely compatible.
We also tabled amendments—which we debated last Monday—to Clause 209. These make it clear that functionalities contribute to the risk of harm to users, and that combinations of functionality may cumulatively drive up the level of risk. Amendment 281BA would amend the meaning of “functionality” within the Bill, so that it includes any system or process which affects users. This presents a number of concerns. First, such a broad interpretation would mean that any service in scope of the Bill would need to consider the risk of any feature or functionality, including ones that are positive for users’ online experience. That could include, for example, processes designed for optimising the interface depending on the user’s device and language settings. The amendment would increase the burden on service providers under the existing illegal content and child safety duties and would dilute their focus on genuinely risky functionality and design.
Second, by duplicating the reference to systems, processes and algorithms elsewhere in the Bill, it implies that the existing references in the Bill to the design of a service or to algorithms must be intended to capture matters not covered by the proposed new definition of “functionality”. This would suggest that references to systems and processes, and algorithms, mentioned elsewhere in the Bill, cover only systems, processes or algorithms which do not have an impact on users. That risks undermining the effectiveness of the existing duties and the protections for users, including children.
Amendment 268A introduces a further interpretation of features and functionality in the general interpretation clause. This duplicates the overarching interpretation of functionality in Clause 208 and, in so doing, introduces legal and regulatory uncertainty, which in turn risks weakening the existing duties. I hope that sets out for my noble friend Lady Harding and others our legal concerns here.
Amendment 281FA seeks to add to the interpretation of harm in Clause 209 by clarifying the scenarios in which harm may arise, specifically from services, systems and processes. This has a number of concerning effects. First, it states that harm can arise solely from a system and process, but a design choice does not in isolation harm a user. For example, the decision to use algorithms, or even the algorithm itself, is not what causes harm to a user—it is the fact that harmful content may be pushed to a user, or content pushed in such a manner that is harmful, for example repeatedly and in volume. That is already addressed comprehensively in the Bill, including in the child safety risk assessment duties.
Secondly, noble Lords should be aware that the drafting of the amendment has the effect of saying that harm can arise from proposed new paragraphs (a) (b) and (c)—
Baroness Harding of Winscombe (Con)
Can I just double-check what my noble friend has just said? I was lulled into a possibly false sense of security until we got to the point where he said “harmful” and then the dreaded word “content”. Does he accept that there can be harm without there needing to be content?
Lord Parkinson of Whitley Bay (Con)
This is the philosophical question on which we still disagree. Features and functionality can be harmful but, to manifest that harm, there must be some content which they are functionally, or through their feature, presenting to the user. We therefore keep talking about content, even when we are talking about features and functionality. A feature on its own which has no content is not what the noble Baroness, Lady Kidron, my noble friend Lady Harding and others are envisaging, but to follow the logic of the point they are making, it requires some content for the feature or functionality to cause its harm.
Lord Parkinson of Whitley Bay (Con)
Yes, even if the content is not harmful. We keep saying “content” because it is the way the content is disseminated, as the Bill sets out, but the features and functionalities can increase the risks of harm as well. We have addressed this through looking at the cumulative effects and in other ways.
Lord Allan of Hallam (LD)
This is the key question. For example, let us take a feature that is pushing something at you constantly; if it was pushing poison at you then it would obviously be harmful, but if it was pushing marshmallows then they would be singularly not harmful but cumulatively harmful. Is the Minister saying that the second scenario is still a problem and that the surfeit of marshmallows is problematic and will still be captured, even if each individual marshmallow is not harmful?
Lord Parkinson of Whitley Bay (Con)
Yes, because the cumulative harm—the accumulation of marshmallows in that example—has been addressed.
Noble Lords should also be aware that the drafting of Amendment 281FA has the effect of saying that harm can arise from proposed new paragraphs (a), (b) and (c)—for example, from the
“age or characteristics of the likely user group”.
In effect, being a child or possessing a particular characteristic may be harmful. This may not be the intention of the noble Baronesses who tabled the amendment, but it highlights the important distinction between something being a risk factor that influences the risk of harm occurring and something being harmful.
The Government are clear that these aspects should properly be treated as risk factors. Other parts of the Bill already make it clear that the ways in which a service is designed and used may impact on the risk of harm suffered by users. I point again to paragraphs (f) to (h) of Clause 10(6); paragraph (e) talks about the level of risk of functionalities of the service, paragraph (f) talks about the different ways in which the service is used, and so on.
We have addressed these points in the Bill, though clearly not to the satisfaction of my noble friend, the noble Baroness, Lady Kidron, and others. As we conclude Report, I recognise that we have not yet convinced everyone that our approach achieves what we all seek, though I am grateful for my noble friend’s recognition that we all share the same aim in this endeavour. As I explained to the noble Baroness, Lady Kidron, on her Amendment 35, I was asking her not to press it because, if she did, the matter would have been dealt with on Report and we would not be able to return to it at Third Reading.
As the Bill heads towards another place with this philosophical disagreement still bubbling away, I am very happy to commit to continuing to talk to your Lordships—particularly when the Bill is in another place, so that noble Lords can follow the debates there. I am conscious that my right honourable friend Michelle Donelan, who has had a busy maternity leave and has spoken to a number of your Lordships while on leave, returns tomorrow in preparation for the Bill heading to her House. I am sure she will be very happy to speak even more when she is back fully at work, but we will both be happy to continue to do so.
I think it is appropriate, in some ways, that we end on this issue, which remains an area of difference. With that promise to continue these discussions as the Bill moves towards another place, I hope that my noble friend will be content not to press these amendments, recognising particularly that the noble Baroness, Lady Kidron, has already inserted this thinking into the Bill for consideration in the other House.
Member’s explanatory statement
This amendment is consequential on the next amendment to this Clause in my name.
Member’s explanatory statement
This amendment is consequential on the amendment in my name inserting new subsection (3A) into this Clause.
Member’s explanatory statement
This amendment provides that the term “online safety functions” includes OFCOM’s functions under section 11A of the Communications Act 2003 (inserted by the new Clause proposed to be inserted after Clause 149 in my name) regarding OFCOM’s media literacy strategy (as well as OFCOM’s functions under section 11 of that Act).
Member’s explanatory statement
This amendment removes a definition of “age assurance” from Clause 211 as that term is now defined separately where used.
Member’s explanatory statement
This amendment revises the definition of “information notice” so that it includes a notice under the new Clause proposed in my name concerning OFCOM’s power to obtain information in connection with an investigation into the death of a child.
Member’s explanatory statement
This amendment removes the entry for “age assurance” in the index of defined terms as that term is now defined separately where used.
Member’s explanatory statement
This amendment updates the entry for pornographic content consequential on the amendment to Clause 211 which inserts a definition of that term into that Clause which applies for the purposes of the whole Bill.
“(aa) section (Sharing or threatening to share intimate photograph or film);(ab) section 171(2);(ac) section (Repeals in connection with offences under section (Sharing or threatening to share intimate photograph or film));”Member’s explanatory statement
This amendment revises the extent Clause so that the provisions mentioned extend to England and Wales only.
Member’s explanatory statement
Clause 215(1) specifies which provisions of the Bill come into force on Royal Assent. This amendment omits subsection (1), but only because it is being moved further down in the section and replaced (see the amendment in my name below).
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsMonday 17th July 2023
(10 months ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-V Fifth marshalled list for Report - (17 Jul 2023)
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, let me add to this miscellany by speaking to the government amendments that stand in my name as part of this group. The first is Amendment 288A, which we mentioned on the first group of amendments on Report because it relates to the new introductory clause, Clause 1, and responds to the points raised by the noble Lord, Lord Stevenson of Balmacara. I am very happy to say again that the Government recognise that people with multiple and combined characteristics suffer disproportionately online and are often at greater risk of harm. This amendment therefore adds a provision in the new interpretation clause, Clause 1, to put beyond doubt that all the references to people with “a certain characteristic” throughout the Bill include people with a combination of characteristics. We had a good debate about the Interpretation Act 1978, which sets that out, but we are happy to set it out clearly here.
In his Amendment 186A, my noble friend Lord Moylan seeks to clarify a broader issue relating to consumer rights and online platforms. He got some general support—certainly gratitude—for raising this issue, although there was a bit of a Committee-style airing of it and a mixture of views on whether this is the right way or the right place. The amendment seeks to make it clear that certain protections for consumers in the Consumer Rights Act 2015 apply when people use online services and do not pay for them but rather give up their personal data in exchange. The Government are aware that the application of the law in that area is not always clear in relation to free digital services and, like many noble Lords, express our gratitude to my noble friend for highlighting the issue through his amendment.
We do not think that the Bill is the right vehicle for attempting to provide clarification on this point, however. We share some of the cautions that the noble Lord, Lord Allan of Hallam, raised and agree with my noble friend Lady Harding of Winscombe that this is part of a broader question about consumer rights online beyond the services with which the Bill is principally concerned. It could be preferable that the principle that my noble friend Lord Moylan seeks to establish through his amendment should apply more widely than merely to category 1 services regulated under the Bill. I assure him that the Bill will create a number of duties on providers which will benefit users and clarify that they have existing rights of action in the courts. We discussed these new protections in depth in Committee and earlier on Report. He drew attention to Clause 65(1), which puts a requirement on all services, not just category 1 services, to include clear and accessible provisions in their terms of service informing users about their right to bring a claim for breach of contract. Therefore, while we are grateful, we agree with noble Lords who suggested that this is a debate for another day and another Bill.
Amendment 191A from the noble Baroness, Lady Kidron, would require Ofcom to issue guidance for coroners and procurators fiscal to aid them in submitting requests to Ofcom to exercise its power to obtain information from providers about the use of a service by a deceased child. While I am sympathetic to her intention, I do not think that her amendment is the right answer. It would be inappropriate for an agency of the Executive to issue guidance to a branch of the judiciary. As I explained in Committee, it is for the Chief Coroner to provide detailed guidance to coroners. This is written to assist coroners with the law and their legal duties and to provide commentary and advice on policy and practice.
The amendment tabled by the noble Baroness cuts across the role of the Chief Coroner and risks compromising the judicial independence of the coroner, as set out in the Constitutional Reform Act 2005. As she is aware, the Chief Coroner has agreed to consider issuing guidance to coroners on social media and to consider the issues covered in the Bill. He has also agreed to explore whether coroners would benefit from additional training, with the offer of consultation with experts including Ofcom and the Information Commissioner’s Office. I suggest that the better approach would be for Ofcom and the Information Commissioner’s Office to support the Chief Coroner in his consideration of these issues where he would find that helpful.
I agree with the noble Lord, Lord Allan, that coroners must have access to online safety expertise given the technical and fast-moving nature of this sector. As we have discussed previously, Amendment 273 gives Ofcom a power to produce a report dealing with matters relevant to an investigation or inquest following a request from a coroner which will provide that expertise. I hope that this reassures the noble Baroness.
Baroness Kidron (CB)
I understand the report on a specific death, which is very welcome and part of the regime as we all see it. The very long list of things that the coroner may not know that they do not know, as I set out in the amendment, is the issue which I and other noble Lords are concerned about. If the Government could find a way to make that possible, I would be very grateful.
Lord Parkinson of Whitley Bay (Con)
We are keen to ensure that coroners have access to the information and expertise that they need, while respecting the independence of the judicial process to decide what they do not know and would like to know more about and the role of the Chief Coroner there. It is a point that I have discussed a lot with the noble Baroness and with my noble friend Lady Newlove in her former role as Victims’ Commissioner. I am very happy to continue doing so because it is important that there is access to that.
The noble Lord, Lord Stevenson, spoke to the amendments tabled by the noble Baroness, Lady Merron, about supposedly gendered language in relation to Clauses 141 and 157. As I made clear in Committee, I appreciate the intention—as does Lady Deben—of making clear that a person of either sex can perform the role of chairman, just as they can perform the role of ombudsman. We have discussed in Committee the semantic point there. The Government have used “chairman” here to be consistent with terminology in the Office of Communications Act 2002. I appreciate that this predates the Written Ministerial Statement which the noble Lord cited, but that itself made clear that the Government at the time recognised that in practice, parliamentary counsel would need to adopt a flexible approach to this change—for example, in at least some of the cases where existing legislation originally drafted in the former style is being amended.
The noble Lord may be aware of a further Written Ministerial Statement, made on 23 May last year, following our debates on gendered language on another Bill, when the then Lord President of the Council and Leader of the House of Commons said that the Office of the Parliamentary Counsel would update its drafting guidance in light of that. That guidance is still forthcoming. However, importantly, the term here will have no bearing on Ofcom’s decision-making on who would chair the advisory committees. It must establish that this could indeed be a person of either sex.
Amendment 253 seeks to enable co-operation, particularly via information-sharing, between Ofcom and other regulators within the UK. I reassure noble Lords that Section 393 of the Communications Act 2003 already includes provisions for sharing information between Ofcom and other regulators in the UK.
As has been noted, Ofcom already co-operates effectively with other domestic regulators. That has been strengthened by the establishment of the Digital Regulation Co-operation Forum. By promoting greater coherence, the forum helps to resolve potential tensions, offering clarity for people and the industry. It ensures collaborative work across areas of common interest to address complex problems. Its outputs have already delivered real and wide-ranging impacts, including landmark policy statements clarifying the interactions between digital regulatory regimes, research into cross-cutting issues, and horizon-scanning activities on new regulatory challenges. We will continue to assess how best to support collaboration between digital regulators and to ensure that their approaches are joined up. We therefore do not think that Amendment 253 is necessary.
Lord Clement-Jones (LD)
My Lords, the Minister has not stated that there is a duty to collaborate. Is he saying that that is, in fact, the case in practice?
Lord Parkinson of Whitley Bay (Con)
Yes, there is a duty, and the law should be followed. I am not sure whether the noble Lord is suggesting that it is not—
Lord Parkinson of Whitley Bay (Con)
I am not sure that I follow the noble Lord’s question, but perhaps—
Lord Clement-Jones (LD)
My Lords, the Minister is saying that, in practice, there is a kind of collaboration between regulators and that there is a power under the Communications Act, but is he saying that there is any kind of duty on regulators to collaborate?
Lord Parkinson of Whitley Bay (Con)
If I may, I will write to the noble Lord setting that out; he has lost me with his question. We believe, as I think he said, that the forum has added to the collaboration in this important area.
The noble Baroness, Lady Finlay, raised important questions about avatars and virtual characters. The Bill broadly defines “content” as
“anything communicated by means of an internet service”,
meaning that it already captures the various ways through which users may encounter content. In the metaverse, this could therefore include things such as avatars or characters created by users. As part of the user-to-user services’ risk assessments, providers will be required to consider more than the risk in relation to user-generated content, including aspects such as how the design and operation of their services, including functionality and how the service is used, might increase the risk of harm to children and the presence of illegal content. A user-to-user service will need to consider any feature which enables interaction of any description between users of the service when carrying out its risk assessments.
The Bill is focused on user-to-user and search services, as there is significant evidence to support the case for regulation based on the risk of harm to users and the current lack of regulatory and other accountability in this area. Hosting, sharing and the discovery of user-generated content and activity give rise to a range of online harms, which is why we have focused on those services. The Bill does not regulate content published by user-to-user service providers themselves; instead, providers are already liable for the content that they publish on their services themselves, and the criminal law is the most appropriate mechanism for dealing with services which publish illegal provider content.
The noble Baroness’s Amendment 275A seeks to require Ofcom to produce a wide-ranging report of behaviour facilitated by emerging technologies. As we discussed in Committee, the Government of course agree that Ofcom needs continually to assess future risks and the capacity of emerging technologies to cause harm. That is why the Bill already contains provisions which allow it to carry out broad horizon scanning, such as its extensive powers to gather information, to commission skilled persons’ reports and to require providers to produce transparency reports. Ofcom has already indicated that it plans to research emerging technologies, and the Bill will require it to update its risk assessments, risk profiles and codes of practice with the outcomes of this research where relevant.
As we touched on in Committee, Clause 56 requires regular reviews by Ofcom into the incidence of content that is harmful to children, and whether there should be changes to regulations setting out the kinds of content that are harmful to children. In addition, Clause 143 mandates that Ofcom should investigate users’ experience of regulated services, which are likely to cover user interactions in virtual spaces, such as the metaverse and those involving content generated by artificial intelligence.
Baroness Finlay of Llandaff (CB)
I am most grateful to the Minister; perhaps I could just check something he said. There was a great deal of detail and I was trying to capture it. On the question of harms to children, we all understand that the harms to children are viewed more extensively than harms to others, but I wondered: what counts as unregulated services? The Minister was talking about regulated services. What happens if there is machine-generated content which is not generated by any user but by some random codes that are developed and then randomly incite problematic behaviours?
Lord Parkinson of Whitley Bay (Con)
I am happy to provide further detail in writing and to reiterate the points I have made as it is rather technical. Content that is published by providers of user-to-user services themselves is not regulated by the Bill because providers are liable for the content they publish on the services themselves. Of course, that does not apply to pornography, which we know poses a particular risk to children online and is regulated through Part 5 of the Bill. I will set out in writing, I hope more clearly, for the noble Baroness what is in scope to reassure her about the way the Bill addresses the harms that she has rightly raised.
Lord Moylan (Con)
My Lords, this has indeed been a wide-ranging and miscellaneous debate. I hope that since we are considering the Bill on Report noble Lords will forgive me if I do not endeavour to summarise all the different speeches and confine myself to one or two points.
The first is to thank the noble Baroness, Lady Kidron, for her support for my amendment but also to say that having heard her argument in favour of her Amendment 191A, I think the difference between us is entirely semantic. Had she worded it so as to say that Ofcom should be under a duty to offer advice to the Chief Coroner, as opposed to guidance to coroners, I would have been very much happier with it. Guidance issued under statute has to carry very considerable weight and, as my noble friend the Minister said, there is a real danger in that case of an arm of the Executive, if you like, or a creature of Parliament—however one wants to regard Ofcom—interfering in the independence of the judiciary. Had she said “advice to the Chief Coroner and whoever is the appropriate officer in Scotland”, that would have been something I could have given wholehearted support to. I hope she will forgive me for raising that quibble at the outset, but I think it is a quibble rather than a substantial disagreement.
On my own amendment, I simply say that I am grateful to my noble friend for the brevity and economy with which he disposed of it. He was of course assisted in that by the remarks and arguments made by many other noble Lords in the House as they expressed their support for it in principle.
I think there is a degree of confusion about what the Bill is doing. There seemed to be a sense that somehow the amendment was giving individuals the right to bring actions in the courts against providers, but of course that already happens because that right exists and is enshrined in Article 65. All the amendment would do is give some balance so that consumers actually had some protections in what is normally, in essence, an unequal contest, which is trying to ensure that a large company enforces the terms and contracts that it has written.
In particular, my amendment would give, as I think noble Lords know, the right to demand repeat performance—that is, in essence, the right to put things right, not monetary compensation—and it would frustrate any attempts by providers, in drafting their own terms and conditions, to limit their own liability. That is of course what they seek to do but the Consumer Rights Act frustrates them in their ability to do so.
We will say no more about that for now. With that, I beg leave to withdraw my amendment.
Member’s explanatory statement
This amendment makes a change to a provision about what the terms of service of a Category 1 service say. The effect of the change is to cover a wider range of ways in which a term of service might indicate that a certain kind of content is not allowed on the service.
Lord Parkinson of Whitley Bay (Con)
My Lords, transparency and accountability are at the heart of the regulatory framework that the Bill seeks to establish. It is vital that Ofcom has the powers it needs to require companies to publish online safety information and to scrutinise their systems and processes, particularly their algorithms. The Government agree about the importance of improving data sharing with independent researchers while recognising the nascent evidence base and the complexities of this issue, which we explored in Committee. We are pleased to be bringing forward a number of amendments to strengthen platforms’ transparency, which confer on Ofcom new powers to assess how providers’ algorithms work, which accelerate the development of the evidence base regarding researchers’ access to information and which require Ofcom to produce guidance on this issue.
Amendment 187 in my name makes changes to Clause 65 on category 1 providers’ duties to create clear and accessible terms of service and apply them consistently and transparently. The amendment tightens the clause to ensure that all the providers’ terms through which they might indicate that a certain kind of content is not allowed on its service are captured by these duties.
Amendment 252G is a drafting change, removing a redundant paragraph from the Bill in relation to exceptions to the legislative definition of an enforceable requirement in Schedule 12.
In relation to transparency, government Amendments 195, 196, 198 and 199 expand the types of information that Ofcom can require category 1, 2A and 2B providers to publish in their transparency reports. With thanks to the noble Lord, Lord Stevenson of Balmacara, for his engagement on this issue, we are pleased to table these amendments, which will allow Ofcom to require providers to publish information relating to the formulation, development and scope of user-to-user service providers’ terms of service and search service providers’ public statements of policies and procedures. This is in addition to the existing transparency provision regarding their application.
Amendments 196 and 199 would enable Ofcom to require providers to publish more information in relation to algorithms, specifically information about the design and operation of algorithms that affect the display, promotion, restriction, discovery or recommendation of content subject to the duties in the Bill. These changes will enable greater public scrutiny of providers’ terms of service and their algorithms, providing valuable information to users about the platforms that they are using.
As well as publicly holding platforms to account, the regulator must be able to get under the bonnet and scrutinise the algorithms’ functionalities and the other systems and processes that they use. Empirical tests are a standard method for understanding the performance of an algorithmic system. They involve taking a test data set, running it through an algorithmic system and observing the output. These tests may be relevant for assessing the efficacy and wider impacts of content moderation technology, age-verification systems and recommender systems.
Government Amendments 247A, 250A, 252A, 252B, 252C, 252D, 252E and 252F will ensure that Ofcom has the powers to enable it to direct and observe such tests remotely. This will significantly bolster Ofcom’s ability to assess how a provider’s algorithms work, and therefore to assess its compliance with the duties in the Bill. I understand that certain technology companies have voiced some concerns about these powers, but I reassure your Lordships that they are necessary and proportionate.
The powers will be subject to a number of safeguards. First, they are limited to viewing information. Ofcom will be unable to remotely access or interfere with the service for any other purpose when exercising the power. These tests would be performed offline, meaning that they would not affect the services’ provision or the experience of users. Assessing systems, processes, features and functionalities is the focus of the powers. As such, individual user data and content are unlikely to be the focus of any remote access to view information.
Additionally, the power can be used only where it is proportionate to use in the exercise of Ofcom’s functions—for example, when investigating whether a regulated service has complied with relevant safety duties. A provider would have a right to bring a legal challenge against Ofcom if it considered that a particular exercise of the power was unlawful. Furthermore, Ofcom will be under a legal obligation to ensure that the information gathered from services is protected from disclosure, unless clearly defined exemptions apply.
The Bill contains no restriction on services making the existence and detail of the information notice public. Should a regulated service wish to challenge an information notice served to it by Ofcom, it would be able to do so through judicial review. In addition, the amendments create no restrictions on the use of this power being viewable to members of the public through a request, such as those under the Freedom of Information Act—noting that under Section 393 of the Communications Act, Ofcom will not be able to disclose information it has obtained through its exercise of these powers without the provider’s consent, unless permitted for specific, defined purposes. These powers are necessary and proportionate and will that ensure Ofcom has the tools to understand features and functionalities and the risks associated with them, and therefore the tools to assess companies’ compliance with the Bill.
Finally, I turn to researchers’ access to data. We recognise the valuable work of researchers in improving our collective understanding of the issues we have debated throughout our scrutiny of the Bill. However, we are also aware that we need to develop the evidence base to ensure that any sharing of sensitive information between companies and researchers can be done safely and securely. To this end, we are pleased to table government Amendments 272B, 272C and 272D.
Government Amendment 272B would require Ofcom to publish its report into researcher access to information within 18 months, rather than two years. This report will provide the evidence base for government Amendments 272C and 272D, which would require Ofcom to publish guidance on this issue. This will provide valuable, evidence-based guidance on how to improve access for researchers safely and securely.
That said, we understand the calls for further action in this area. The Government will explore this issue further and report back to your Lordships’ House on whether further measures to support researchers’ access to data are required—and if so, whether they could be implemented through other legislation, such as the Data Protection and Digital Information Bill. I beg to move.
Lord Allan of Hallam (LD)
My Lords, Amendment 247B in my name was triggered by government Amendment 247A, which the Minister just introduced. I want to explain it, because the government amendment is quite late—it has arrived on Report—so we need to look in some detail at what the Government have proposed. The phrasing that has caused so much concern, which the Minister has acknowledged, is that Ofcom will be able to
“remotely access the service provided by the person”.
It is those words—“remotely access”—which are trigger words for anyone who lived through the Snowden disclosures, where everyone was so concerned about remote access by government agencies to precisely the same services we are talking about today: social media services.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to noble Lords for their contributions in this group. On the point made by the noble Lord, Lord Knight of Weymouth, on why we are bringing in some of these powers now, I say that the power to direct and observe algorithms was previously implicit within Ofcom’s information powers and, where a provider has UK premises, under powers of entry, inspection and audit under Schedule 12. However, the Digital Markets, Competition and Consumers Bill, which is set to confer similar powers on the Competition and Markets Authority and its digital markets unit, makes these powers explicit. We wanted to ensure that there was no ambiguity over whether Ofcom had equivalent powers in the light of that. Furthermore, the changes we are making ensure that Ofcom can direct and observe algorithmic assessments even if a provider does not have relevant premises or equipment in the UK.
I am grateful to the noble Lord, Lord Allan of Hallam, for inviting me to re-emphasise points and allay the concerns that have been triggered, as his noble friend Lord Clement-Jones put it. I am happy to set out again a bit of what I said in opening this debate. The powers will be subject to a number of safeguards. First, they are limited to “viewing information”. They can be used only where they are proportionate in the exercise of Ofcom’s functions, and a provider would have the right to bring a legal challenge against Ofcom if it considered that a particular exercise of the power was done unlawfully. Furthermore, Ofcom will be under a legal obligation to ensure that the information gathered from services is protected from disclosure, unless clearly defined exemptions apply.
These are not secret powers, as the noble Lord rightly noted. The Bill contains no restriction on services making the existence and detail of the information notice public. If a regulated service wished to challenge an information notice served to it by Ofcom, it would be able to do so through judicial review. I also mentioned the recourse that people have through existing legislation, such as the Freedom of Information Act, to give them safeguards, noting that, under Section 393 of the Communications Act, Ofcom will not be able to disclose information that it has obtained through its exercise of these powers without the provider’s consent unless that is permitted for specific, defined purposes.
The noble Lord’s Amendment 247B seeks to place further safeguards on Ofcom’s use of its new power to access providers’ systems remotely to observe tests. While I largely agree with the intention behind it, there are already a number of safeguards in place for the use of that power, including in relation to data protection, legally privileged material and the disclosure of information, as I have outlined. Ofcom will not be able to gain remote access simply for exploratory or fishing purposes, and indeed Ofcom expects to have conversations with services about how to provide the information requested.
Furthermore, before exercising the power, Ofcom will be required to issue an information notice specifying the information to be provided, setting out the parameters of access and why Ofcom requires the information, among other things. Following the receipt of an information notice, a notice requiring an inspection or an audit notice, if a company has identified that there is an obvious security risk in Ofcom exercising the power as set out in the notice, it may not be proportionate to do so. As set out in Ofcom’s duties, Ofcom must have regard to the principles under which regulatory activities should be proportionate and targeted only at cases where action is needed.
In line with current practice, we anticipate Ofcom will issue information notice requests in draft form to identify and address any issues, including in relation to security, before the information notice is issued formally. Ofcom will have a legal duty to exercise its remote access powers in a way that is proportionate, ensuring that undue burdens are not placed on businesses. In assessing proportionality in line with this requirement, Ofcom would need to consider the size and resource capacity of a service when choosing the most appropriate way of gathering information, and whether there was a less onerous method of obtaining the necessary information to ensure that the use of this power is proportionate. As I said, the remote access power is limited to “viewing information”. Under this power, Ofcom will be unable to interfere or access the service for any other purpose.
In practice, Ofcom will work with services during the process. It is required to specify, among other things, the information to be provided, which will set the parameters of its access, and why it requires the information, which will explain the link between the information it seeks and the online safety function that it is exercising or deciding whether to exercise.
As noble Lords know, Ofcom must comply with the UK’s data protection law. As we have discussed in relation to other issues, it is required to act compatibly with the European Convention on Human Rights, including Article 8 privacy rights. In addition, under Clause 91(7), Ofcom is explicitly prohibited from requiring the provision of legally privileged information. It will also be under a legal obligation to ensure that the information gathered from services is protected from disclosure unless clearly defined exemptions apply, such as those under Section 393(2) of the Communications Act 2003—for example, the carrying out of any of Ofcom’s functions. I hope that provides reassurance to the noble Lord, Lord Allan, and the noble Baroness, Lady Fox, who raised these questions.
Lord Allan of Hallam (LD)
I am grateful to the Minister. That was helpful, particularly the description of the process and the fact that drafts have to be issued early on. However, it still leaves open a couple of questions, one of which was very helpfully raised by the noble Lord, Lord Knight. We have in Schedule 12 this other set of protections that could be applied. There is a genuine question as to why this has been put in this place and not there.
The second question is to dig a little more into the question of what happens when there is a dispute. The noble Lord, Lord Moylan, pointed out that if you have created a backdoor then you have created a backdoor, and it is dangerous. If we end up in a situation where a company believes that what it is being asked to do by Ofcom is fundamentally problematic and would create a security risk, it will not be good enough to open up the backdoor and then have a judicial review. It needs to be able to say no at that stage, yet the Bill says that it could be committing a serious criminal offence by failing to comply with an information notice. We want some more assurances, in some form, about what would happen in a scenario where a company genuinely and sincerely believes that what Ofcom is asking for is inappropriate and/or dangerous and it wants not to have to offer it unless and until its challenge has been looked at, rather than having to offer it and then later judicially review a decision. The damage would already have been done by opening up an inappropriate backdoor.
Lord Parkinson of Whitley Bay (Con)
A provider would have a right to bring a legal challenge against Ofcom if it considered that a particular exercise of the remote access power was unlawful. I am sure that would be looked at swiftly, but I will write to the noble Lord on the anticipated timelines while that judicial review was pending. Given the serious nature of the issues under consideration, I am sure that would be looked at swiftly. I will write further on that.
Baroness Fox of Buckley (Non-Afl)
Before the Minister sits down, to quote the way the Minister has operated throughout Report, there is consensus across the House that there are some concerns. The reason why there are concerns outside and inside the House on this particular amendment is that it is not entirely clear that those protections exist, and there are worries. I ask the Minister whether, rather than just writing, it would be possible to take this back to the department, table a late amendment and say, “Look again”. That has been done before. It is certainly not too late: if it was not too late to have this amendment then it is certainly not too late to take it away again and to adopt another amendment that gives some safeguarding. Seriously, it is worth looking again.
Lord Parkinson of Whitley Bay (Con)
I had not quite finished; the noble Baroness was quick to catch me before I sat down. I still have some way to go, but I will certainly take on board all the points that have been made on this group.
The noble Lord, Lord Knight, asked about Schedule 12. I will happily write with further information on that, but Schedule 12 is about UK premises, so it is probably not the appropriate place to deal with this, as we need to be able to access services in other countries. If there is a serious security risk then it would not necessarily be proportionate. I will write to him with further details.
Lord Knight of Weymouth (Lab)
I am grateful to the Minister for giving way so quickly. I think the House is asking him to indicate now that he will go away and look at this issue, perhaps with some of us, and that, if necessary, he would be willing to look at coming back with something at Third Reading. From my understanding of the Companion, I think he needs to say words to that effect to allow him to do so, if that is what he subsequently wants to do at Third Reading.
Lord Parkinson of Whitley Bay (Con)
I am very happy to discuss this further with noble Lords, but I will reserve the right, pending that discussion, to decide whether we need to return to this at Third Reading.
Amendments 270 and 272, tabled by my noble friend Lady Fraser of Craigmaddie, to whom I am very grateful for her careful scrutiny of the devolved aspects of the Bill, seek to require Ofcom to include separate analyses of users’ online experiences in England, Wales, Scotland and Northern Ireland in the research about users’ experiences of regulated services and in Ofcom’s transparency reports. While I am sympathetic to her intention—we have corresponded on it, for which I am grateful—it is important that Ofcom has and retains the discretion to prioritise information requests that will best shed light on the experience of users across the UK.
My noble friend and other noble Lords should be reassured that Ofcom has a strong track record of using this discretion to produce data which are representative of people across the whole United Kingdom. Ofcom is committed to reflecting the online experiences of users across the UK and intends, wherever possible, to publish data at a national level. When conducting research, Ofcom seeks to gather views from a representative sample of the United Kingdom and seeks to set quotas that ensure an analysable sample within each of the home nations.
It is also worth noting the provisions in the Communications Act 2003 that require Ofcom to operate offices in each of the nations of the UK, to maintain advisory committees for each, and to ensure their representation on its various boards and panels—and, indeed, on the point raised by the noble Baroness, Lady Kidron, to capture the experiences of children and users of all ages. While we must give Ofcom the discretion it needs to ensure that the framework is flexible and remains future-proofed, I hope that I have reassured my noble friend that her point will indeed be captured, reported on and be able to be scrutinised, not just in this House but across the UK.
Baroness Fraser of Craigmaddie (Con)
I am grateful to the Minister for giving way. My premise is that the reason Ofcom reports in a nation-specific way in broadcasting and in communications is because there is a high-level reference in both the Communications Act 2003 and the BBC charter that requires it to do so, because it feeds down into national quotas and so on. There is currently nothing of that equivalence in the Online Safety Bill. Therefore, we are relying on Ofcom’s discretion, whereas in the broadcasting and communications area we have a high-level reference to insisting that there is a breakdown by nation.
Lord Parkinson of Whitley Bay (Con)
We think we can rely on Ofcom’s discretion, and point to its current practice. I hope that will reassure my noble friend that it will set out the information she seeks.
Lord Parkinson of Whitley Bay (Con)
I was about to say that I am very happy to write to the noble Lord, Lord Stevenson, about the manner by which consent is given in Clause 53(5)(c), but I think his question is on something else.
Lord Stevenson of Balmacara (Lab)
I would be grateful if the Minister could repeat that immediately afterwards, when I will listen much harder.
Just to echo what the noble Baroness was saying, may we take it as an expectation that approaches that are signalled in legislation for broadcasting and communications should apply pari passu to the work of Ofcom in relation to the devolved Administrations?
Lord Parkinson of Whitley Bay (Con)
Yes, and we can point to the current actions of Ofcom to show that it is indeed doing this already, even without that legislative stick.
I turn to the amendments in the name of my noble friend Lord Bethell and the noble Lord, Lord Clement-Jones, on researchers’ access to data. Amendment 237ZA would confer on the Secretary of State a power to make provisions about access to information by researchers. As my noble friend knows, we are sympathetic to the importance of this issue, which is why we have tabled our own amendments in relation to it. However, as my noble friend also knows, in such a complex and sensitive area that we think it is premature to endow the Secretary of State with such broad powers to introduce a new framework. As we touched on in Committee, this is a complex and still nascent area, which is why it is different from the other areas to which the noble Lord, Lord Clement-Jones, pointed in his contribution.
Lord Clement-Jones (LD)
The noble Baroness, Lady Harding, made the point that in other areas where the Minister has agreed to reviews or reports, there are backstop powers; for instance, on app stores. Of course, that was a negotiated settlement, so to speak, but why can the Minister not accede to that in the case of access for researchers, as he has with app stores? Indeed, there is one other example that escapes me, which the Minister has also agreed to.
Lord Parkinson of Whitley Bay (Con)
We touched on the complexity of defining who and what is a researcher and making sure that we do not give rise to bad actors exploiting that. This is a complex area, as we touched on in Committee. As I say, the evidence base here is nascent. It is important first to focus on developing our understanding of the issues to ensure that any power or legislation is fit to address those challenges. Ofcom’s report will not only highlight how platforms can share data with researchers safely but will provide the evidence base for considering any future policy approaches, which we have committed to doing but which I think the noble Lord will agree are worthy of further debate and reflection in Parliament.
Lord Clement-Jones (LD)
The benefit of having a period of time between the last day of Report on Wednesday and Third Reading is that that gives the Minister, the Bill team and parliamentary counsel the time to reflect on the kind of power that could be devised. The wording could be devised, and I would have thought that six weeks would be quite adequate for that, perhaps in a general way. After all, this is not a power that is immediately going to be used; it is a general power that could be brought into effect by regulation. Surely it is not beyond the wit to devise something suitable.
Baroness Kidron (CB)
Sit down or stand up—I cannot remember.
I wonder whether the department has looked at the DSA and other situations where this is being worked out. I recognise that it takes a period of time, but it is not without some precedent that a pathway should be described.
Lord Parkinson of Whitley Bay (Con)
We do not think that six weeks is enough time for the evidence base to develop sufficiently, our assessment being that to endow the Secretary of State with that power at this point is premature.
Amendment 262AA would require Ofcom to consider whether it is appropriate to require providers to take steps to comply with Ofcom’s researcher access guidance when including a requirement to take steps in a confirmation decision. This would be inappropriate because the researcher access provisions are not enforceable requirements; as such, compliance with them should not be subject to enforcement by the regulator. Furthermore, enforcement action may relate to a wide variety of very important issues, and the steps needed should be sufficient to address a failure to comply with an enforceable requirement. Singling out compliance with researcher access guidance alone risks implying that this will be adequate to address core failures.
Amendment 272AB would require Ofcom to give consideration to whether greater access to data could be achieved through legal requirements or incentives for regulated services. I reassure noble Lords that the scope of Ofcom’s report will already cover how greater access to data could be achieved, including through enforceable requirements on providers.
Amendment 272E would require Ofcom to take a provider’s compliance with Ofcom’s guidance on researcher access to data into account when assessing risks from regulated services and determining whether to take enforcement action and what enforcement action to take. However, we do not believe that this is a relevant factor for consideration of these issues. I hope noble Lords will agree that whether or not a company has enabled researcher access to its data should not be a mitigating factor against Ofcom requiring companies to deal with terrorism or child sexual exploitation or abuse content, for example.
On my noble friend Lord Bethell’s remaining Amendments 272BA, 273A and 273B, the first of these would require Ofcom to publish its report on researchers’ access to information within six months. While six months would not be deliverable given other priorities and the complexity of this issue, the government amendment to which I have spoken would reduce the timelines from two years to 18 months. That recognises the importance of the issue while ensuring that Ofcom can deliver the key priorities in establishing the core parts of the regulatory framework; for example, the illegal content and child safety duties.
Lord Allan of Hallam (LD)
Just on the timescale, one of the issues that we talked about in Committee was the fact that there needs to be some kind of mechanism created, with a code of practice with reference to data protection law and an approving body to approve researchers as suitable to take information; the noble Baroness, Lady Kidron, referred to the DSA process, which the European Union has been working on. I hope the Minister can confirm that Ofcom might get moving on establishing that. It is not dependent on there being a report in 18 months; in fact, you need to have it in place when you report in 18 months, which means you need to start building it now. I hope the Minister would want Ofcom, within its existing framework, to be encouraging the creation of that researcher approval body and code of practice, not waiting to start that process in 18 months’ time.
Lord Parkinson of Whitley Bay (Con)
I will continue my train of thought on my noble friend’s amendments, which I hope will cover that and more.
My noble friend’s Amendment 273A would allow Ofcom to appoint approved independent researchers to access information. Again, given the nascent evidence base here, it is important to focus on understanding these issues before we commit to a researcher access framework.
Under the skilled persons provisions, Ofcom will already have the powers to appoint a skilled person to assess compliance with the regulatory framework; that includes the ability to leverage the expertise of independent researchers. My noble friend’s Amendment 273B would require Ofcom to produce a code of practice on access to data by researchers. The government amendments I spoke to earlier will require Ofcom to produce guidance on that issue, which will help to promote information sharing in a safe and secure way.
To the question asked by the noble Lord, Lord Allan: yes, Ofcom can start the process and do it quickly. The question here is really about the timeframe in which it does so. As I said in opening, we understand the calls for further action in this area.
I am happy to say to my noble friend Lord Bethell, to whom we are grateful for his work on this and the conversations we have had, that we will explore the issue further and report back on whether further measures to support researchers’ access to data are required and, if so, whether they can be implemented through other legislation, such as the Data Protection and Digital Information (No.2) Bill.
Lord Knight of Weymouth (Lab)
Before the Minister sits down—he has been extremely generous in taking interventions—I want to put on record my understanding of his slightly ambiguous response to Amendment 247A, so that he can correct it if I have got it wrong. My understanding is that he has agreed to go away and reflect on the amendment and that he will have discussions with us about it. Only if he then believes that it is helpful to bring forward an amendment at Third Reading will he do so.
Lord Parkinson of Whitley Bay (Con)
Yes, but I do not want to raise the hopes of the noble Lord or others, with whom I look forward to discussing this matter. I must manage their expectations about whether we will bring anything forward. With that, I beg to move.
Member’s explanatory statement
This amendment makes a change to the definition of “relevant content” which applies for the purposes of Chapter 3 of Part 4 of the Bill (transparency of terms of service etc). The effect of the change is to cover a wider range of ways in which a term of service might indicate that a certain kind of content is not allowed on the service.
“CHAPTER 3ADECEASED CHILD USERSDisclosure of information about use of service by deceased child users
(1) A provider of a relevant service must make it clear in the terms of service what their policy is about dealing with requests from parents of a deceased child for information about the child’s use of the service.(2) A provider of a relevant service must have a dedicated helpline or section of the service, or some similar means, by which parents can easily find out what they need to do to obtain information and updates in those circumstances, and the terms of service must provide details.(3) A provider of a relevant service must include clear and accessible provisions in the terms of service—(a) specifying the procedure for parents of a deceased child to request information about the child’s use of the service,(b) specifying what evidence (if any) the provider will require about the parent’s identity or relationship to the child, and(c) giving sufficient detail to enable child users and their parents to be reasonably certain about what kinds of information would be disclosed and how information would be disclosed. (4) A provider of a relevant service must respond in a timely manner to requests from parents of a deceased child for information about the child’s use of the service or for updates about the progress of such information requests.(5) A provider of a relevant service must operate a complaints procedure in relation to the service that—(a) allows for complaints to be made by parents of a deceased child who consider that the provider is not complying with a duty set out in any of subsections (1) to (4),(b) provides for appropriate action to be taken by the provider of the service in response to such complaints, and(c) is easy to access, easy to use and transparent.(6) A provider of a relevant service must include in the terms of service provisions which are easily accessible specifying the policies and processes that govern the handling and resolution of such complaints.(7) If a person is the provider of more than one relevant service, the duties set out in this section apply in relation to each such service.(8) The duties set out in this section extend only to the design, operation and use of a service in the United Kingdom, and references in this section to children are to children in the United Kingdom.(9) A “relevant service” means—(a) a Category 1 service (see section 86(10)(a));(b) a Category 2A service (see section 86(10)(b));(c) a Category 2B service (see section 86(10)(c)).(10) In this section “parent”, in relation to a child, includes any person who is not the child’s parent but who—(a) has parental responsibility for the child within the meaning of section 3 of the Children Act 1989 or Article 6 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), or(b) has parental responsibilities in relation to the child within the meaning of section 1(3) of the Children (Scotland) Act 1995.(11) In the application of this section to a Category 2A service, references to the terms of service include references to a publicly available statement.”Member’s explanatory statement
This amendment imposes new duties on providers of Category 1, 2A and 2B services to have a policy about disclosing information to the parents of deceased child users, and providing details about it in the terms of service or a publicly available statement.
“OFCOM’s guidance about duties set out in section (Disclosure of information about use of service by deceased child users)
(1) OFCOM must produce guidance for providers of relevant services to assist them in complying with their duties set out in section (Disclosure of information about use of service by deceased child users).(2) OFCOM must publish the guidance (and any revised or replacement guidance).(3) In this section “relevant service” has the meaning given by section (Disclosure of information about use of service by deceased child users).”Member’s explanatory statement
This amendment requires OFCOM to give guidance to providers about the new duties imposed by the other Clause proposed after Clause 67 in my name.
Member’s explanatory statement
This amendment adds a reference to content to which section 12(2) applies (content to which certain user empowerment duties apply) to paragraph 1 of the transparency reporting Schedule, which allows OFCOM to require providers of user-to-user services to include information in their transparency reports about the incidence of content.
Member’s explanatory statement
This amendment is consequential on the amendment to Clause 211 in my name adding a definition of “pornographic content” to that Clause.
“(2) A duty to ensure, by the use of age verification or age estimation (or both), that children are not normally able to encounter content that is regulated provider pornographic content in relation to the service.(2A) The age verification or age estimation must be of such a kind, and used in such a way, that it is highly effective at correctly determining whether or not a particular user is a child.” Member’s explanatory statement
This amendment requires providers within scope of Part 5 to use highly effective age verification or age estimation (or both) to comply with the duty in Clause 72(2) (preventing children from encountering provider pornographic content).
Member’s explanatory statement
This amendment requires OFCOM’s guidance about the duty in Clause 72(2) to give examples of kinds and uses of age verification and age estimation that are, or are not, highly effective at determining whether or not a user is a child.
“(2A) The guidance may elaborate on the following principles governing the use of age verification or age estimation for the purpose of compliance with the duty set out in section 72(2)—(a) the principle that age verification or age estimation should be easy to use;(b) the principle that age verification or age estimation should work effectively for all users regardless of their characteristics or whether they are members of a certain group; (c) the principle of interoperability between different kinds of age verification or age estimation.(2B) The guidance may refer to industry or technical standards for age verification or age estimation (where they exist).”Member’s explanatory statement
This amendment sets out principles about age verification or age estimation, which are relevant to OFCOM’s guidance to providers about their duty in Clause 72(2).
Member’s explanatory statement
This amendment is consequential on the new Clause proposed to be inserted after Clause 149 in my name expanding OFCOM’s duties to promote media literacy in relation to regulated user-to-user and search services.
Lord Parkinson of Whitley Bay (Con)
My Lords, the amendments in this group relate to provisions for media literacy in the Bill and Ofcom’s existing duty on media literacy under Section 11 of the Communications Act 2003. I am grateful to noble Lords from across your Lordships’ House for the views they have shared on this matter, which have been invaluable in helping us draft the amendments.
Media literacy remains a key priority in our work to tackle online harms; it is essential not only to keep people safe online but for them to understand how to make informed decisions which enhance their experience of the internet. Extensive work is currently being undertaken in this area. Under Ofcom’s existing duty, the regulator has initiated pilot work to promote media literacy. It is also developing best practice principles for platform-based media literacy measures and has published guidance on how to evaluate media literacy programmes.
While we believe that the Communications Act provides Ofcom with sufficient powers to undertake an ambitious programme of media literacy activity, we have listened to the concerns raised by noble Lords and understand the desire to ensure that Ofcom is given media literacy objectives which are fit for the digital age. We have therefore tabled the following amendments seeking to update Ofcom’s statutory duty to promote media literacy, in so far as it relates to regulated services.
Amendment 274B provides new objectives for Ofcom to meet in discharging its duty. The first objective requires Ofcom to take steps to increase the public’s awareness and understanding of how they can keep themselves and others safe when using regulated services, including building the public’s understanding of the nature and impact of harmful content online, such as disinformation and misinformation. To meet that objective, Ofcom will need to carry out, commission or encourage the delivery of activities and initiatives which enhance users’ media literacy in these ways.
It is important to note that, when fulfilling this new objective, Ofcom will need to increase the public’s awareness of the ways in which they can protect groups that disproportionately face harm online, such as women and girls. The updated duty will also compel Ofcom to encourage the development and use of technologies and systems that support users of regulated services to protect themselves and others. Ofcom will be required to publish a statement recommending ways in which others, including platforms, can take action to support their users’ media literacy.
Amendment 274C places a new requirement on Ofcom to publish a strategy setting out how it will fulfil its media literacy functions under Section 11, including the new objectives. Ofcom will be required to update this strategy every three years and report on progress made against it annually to provide assurance that it is fulfilling its duty appropriately. These reports will be supported by the post-implementation review of the Bill, which covers Ofcom’s media literacy duty in so far as it relates to regulated services. This will provide a reasonable point at which to establish the impact of Ofcom’s work, having given it time to take effect.
I am confident that, through this updated duty, Ofcom will be empowered to ensure that internet users become more engaged with media literacy and, as a result, are safer online. I hope that these amendments will find support from across your Lordships’ House, and I beg to move.
Baroness Bull (CB)
My Lords, I welcome this proposed new clause on media literacy and support the amendments in the names of the noble Lords, Lord Clement-Jones and Lord Knight of Weymouth. I will briefly press the Minister on two points. First, proposed new subsection (1C) sets out how Ofcom must perform its duty under proposed new subsection (1A), but it does not explicitly require Ofcom to work in partnership with existing bodies already engaged in and expert in provision of these kinds of activities. The potential for Ofcom to commission is explicit, but this implies quite a top-down relationship, not a collaboration that builds on best practice, enables scale-up where appropriate and generally avoids reinventing wheels. It seems like a wasted opportunity to fast-track delivery of effective programmes through partnership.
My second concern is that there is no explicit requirement to consider the distinct needs of specific user communities. In particular, I share the concerns of disability campaigners and charities that media literacy activities and initiatives need to take into account the needs of people with learning disabilities, autism and mental capacity issues, both in how activities are shaped and in how they are communicated. This is a group of people who have a great need to go online and engage, but we also know that they are at greater risk online. Thinking about how media literacy can be promoted, particularly among learning disability communities, is really important.
The Minister might respond by saying that Ofcom is already covered by the public sector equality duty and so is already obliged to consider the needs of people with protected characteristics when designing and implementing policies. But the unfortunate truth is that the concerns of the learning disability community are an afterthought in legislation compared with other disabilities, which are already an afterthought. The Petitions Committee in the other place, in its report on online abuse and the experience of disabled people, noted that there are multiple disabled people around the country with the skills and experience to advise government and its bodies but that there is a general unwillingness to engage directly with them. They are often described as hard to reach, which is kind of ironic because in fact most of these people use multiple services and so are very easy to reach, because they are on lots of databases and in contact with government bodies all the time.
The Minister may also point out that Ofcom’s duties in the Communications Act require it to maintain an advisory committee on elderly and disabled persons that includes
“persons who are familiar with the needs of persons with disabilities”.
But referring to an advisory committee is not the same as consulting people with disabilities, both physical and mental, and it is especially important to consult directly with people who may have difficulty understanding what is being proposed. Talking to people directly, rather than through an advisory committee, is very much the goal.
Unlike the draft Bill, which had media literacy as a stand-alone clause, the intention in this iteration is to deal with the issue by amending the Communications Act. It may be that in the web of interactions between those two pieces of legislation, my concerns can be set to rest. But I would find it very helpful if the Minister could confirm today that the intention is that media literacy programmes will be developed in partnership with—and build on best practice of—those organisations already delivering in this space and that the organisations Ofcom collaborates with will be fully inclusive of all communities, including those with disabilities and learning disabilities. Only in this way can we be confident that media literacy programmes will meet their needs effectively, both in content and in how they are communicated.
Finally, can the Minister confirm whether Ofcom considers people with lived experience of disability as subject matter experts on disability for the purpose of fulfilling its consultation duties? I asked this question during one of the helpful briefing sessions during the Bill’s progress earlier this year, but I did not get an adequate answer. Can the Minister clarify that for the House today?
Lord Knight of Weymouth (Lab)
My Lords, the Government have moved on this issue, and I very much welcome that. I am grateful to the Minister for listening and for the fact that we now have Section 11 of the Communications Act being brought into the digital age through the Government’s Amendments 274B and 274C. The public can now expect to be informed and educated about content-related harms, reliability and accuracy; technology companies will have to play their part; and Ofcom will have to regularly report on progress, and will commission and partner with others to fulfil those duties. That is great progress.
The importance of this was underscored at a meeting of the United Nations Human Rights Council just two weeks. Nada Al-Nashif, the UN Deputy High Commissioner for Human Rights in an opening statement said that media and digital literacy empowered individuals and
“should be considered an integral part of education efforts”.
Tawfik Jelassi, the assistant director-general of UNESCO, in a statement attached to that meeting, said that
“media and information literacy was essential for individuals to exercise their right to freedom of opinion and expression”—
I put that in to please the noble Baroness, Lady Fox—and
“enabled access to diverse information, cultivated critical thinking, facilitated active engagement in public discourse, combatted misinformation, and safeguarded privacy and security, while respecting the rights of others”.
If only the noble Lord, Lord Moylan, was in his place to hear me use the word privacy. He continued:
“Together, the international community could ensure that media and information literacy became an integral part of everyone’s lives, empowering all to think critically, promote digital well-being, and foster a more inclusive and responsible global digital community”.
I thought those were great words, summarising why we needed to do this.
I am grateful to Members on all sides of the House for the work that they have done on media literacy. Part of repeating those remarks was that this is so much more about empowerment than it is about loading safety on to individuals, as the noble Baroness, Lady Kidron, rightly said in her comments.
Nevertheless, we want the Minister to reflect on a couple of tweaks. Amendment 269C in my name is around an advisory committee being set up within six months and in its first report assessing the need for a code on misinformation. I have a concern that, as the regime that we are putting in place with this Bill comes into place and causes some of the harmful content that people find engaging to be suppressed, the algorithms will go to something else that is engaging, and that something else is likely to be misinformation and disinformation. I have a fear that that will become a growing problem that the regulator will need to be able to address, which is why it should be looking at this early.
Incidentally, that is why the regulator should also look at provenance, as in Amendment 269AA from the noble Lord, Lord Clement-Jones. It was tempting in listening to him to see whether there was an AI tool that could trawl across all the comments that he has made during the deliberations on this Bill to see whether he has quoted the whole of the joint report—but that is a distraction.
My Amendment 269D goes to the need for media literacy on systems, processes and business models, not just on content. Time and again, we have emphasised the need for this Bill to be as much about systems as content. There are contexts where individual, relatively benign pieces of content can magnify if part of a torrent that then creates harm. The Mental Health Foundation has written to many of us to make this point. In the same way that the noble Baroness, Lady Bull, asked about ensuring that those with disability have their own authentic voice heard as these media literacy responsibilities are played out, so the Mental Health Foundation wanted the same kind of involvement from young people; I agree with both. Please can we have some reassurance that this will be very much part of the literacy duties on Ofcom and the obligations it places on service providers?
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to noble Lords for their comments, and for the recognition from the noble Lord, Lord Knight, of the changes that we have made. I am particularly grateful to him for having raised media literacy throughout our scrutiny of this Bill.
His Amendments 269C and 269D seek to set a date by which the establishment of the advisory committee on misinformation and disinformation must take place and to set requirements for its first report. Ofcom recognises the valuable role that the committee will play in providing advice in relation to its duties on misinformation and disinformation, and has assured us that it will aim to establish the committee as soon as is reasonably possible, in recognition of the threats posed by misinformation and disinformation online.
Given the valuable role of the advisory committee, Ofcom has stressed how crucial it will be to have appropriate time to appoint the best possible committee. Seeking to prescribe a timeframe for its implementation risks impeding Ofcom’s ability to run the thorough and transparent recruitment process that I am sure all noble Lords want and to appoint the most appropriate and expert members. It would also not be appropriate for the Bill to be overly prescriptive on the role of the committee, including with regard to its first report, in order for it to maintain the requisite independence and flexibility to give us the advice that we want.
Amendment 269AA from the noble Lord, Lord Clement-Jones, seeks to add advice on content provenance to the duties of the advisory committee. The new media literacy amendments, which update Ofcom’s media literacy duties, already include a requirement for Ofcom to take steps to help users establish the reliability, accuracy and authenticity of content found on regulated services. Ofcom will have duties and mechanisms to be able to advise platforms on how they can help users to understand whether content is authentic; for example, by promoting tools that assist them to establish the provenance of content, where appropriate. The new media literacy duties will require Ofcom to take tangible steps to prioritise the public’s awareness of and resilience to misinformation and disinformation online. That may include enabling users to establish the reliability, accuracy and authenticity of content, but the new duties will not remove content online; I am happy to reassure the noble Baroness, Lady Fox, on that.
The advisory committee is already required under Clause 141(4)(c) to advise Ofcom on its exercise of its media literacy functions, including its new duties relating to content authenticity. The Bill does not stipulate what tools service providers should use to fulfil their duties, but Ofcom will have the ability to recommend in its codes of practice that companies use tools such as provenance technologies to identify manipulated media which constitute illegal content or content that is harmful to children, where appropriate. Ofcom is also required to take steps to encourage the development and use of technologies that provide users with further context about content that they encounter online. That could include technologies that support users to establish content provenance. I am happy to reassure the noble Lord, Lord Clement-Jones, that the advisory committee will already be required to advise on the issues that he has raised in his amendment.
On media literacy more broadly, Ofcom retains its overall statutory duty to promote media literacy, which remains broad and non-prescriptive. The new duties in this Bill, however, are focused specifically on harm; that is because the of nature of the Bill, which seeks to make the UK the safest place in the world to be online and is necessarily focused on tackling harms. To ensure that Ofcom succeeds in the delivery of these new specific duties with regard to regulated services, it is necessary that the regulator has a clearly defined scope. Broadening the duties would risk overburdening Ofcom by making its priorities less clear.
The noble Baroness, Lady Bull—who has been translated to the Woolsack while we have been debating this group—raised media literacy for more vulnerable users. Under Ofcom’s existing media literacy programme, it is already delivering initiatives to support a range of users, including those who are more vulnerable online, such as people with special educational needs and people with disabilities. I am happy to reassure her that, in delivering this work, Ofcom is already working not just with expert groups including Mencap but with people with direct personal experiences of living with disabilities.
The noble Lord, Lord Clement-Jones, raised Ofsted. Effective regulatory co-ordination is essential for addressing the crosscutting opportunities and challenges posed by digital technologies and services. Ofsted will continue to engage with Ofcom through its existing mechanisms, including engagement led by its independent policy team and those held with Ofcom’s online safety policy director. In addition to that, Ofsted is considering mechanisms through which it can work more closely with Ofcom where appropriate. These include sharing insights from inspections in an anonymised form, which could entail reviews of its inspection bases and focus groups with inspectors, on areas of particular concern to Ofcom. Ofsted is committed to working with Ofcom’s policy teams to work these plans up in more detail.
Lord McNally (LD)
My Lords, could I ask the Minister a question? He has put his finger on one of the most important aspects of this Bill: how it will integrate with the Department for Education and all its responsibilities for schools. Again, talking from long experience, one of the worries is the silo mentality in Whitehall, which is quite often strongest in the Department for Education. Some real effort will be needed to make sure there is a crossover from the powers that Ofcom has to what happens in the classroom.
Lord Parkinson of Whitley Bay (Con)
I hope what I have said about the way that Ofsted and Ofcom are working together gives the noble Lord some reassurance. He is right, and it is not just in relation to the Department for Education. In my own department, we have discussed in previous debates on media literacy the importance of critical thinking, equipping people with the sceptical, quizzical, analytic skills they need—which art, history and English literature do as well. The provisions in this Bill focus on reducing harm because the Bill is focused on making the UK the safest place to be online, but he is right that media literacy work more broadly touches on a number of government departments.
Amendment 274BA would require Ofcom to promote an understanding of how regulated services’ business models operate, how they use personal data and the operation of their algorithmic systems and processes. We believe that Ofcom’s existing duty under the Communications Act already ensures that the regulator can cover these aspects in its media literacy activities. The duty requires Ofcom to build public awareness of the processes by which material on regulated services is selected or made available. This enables Ofcom to address the platform features specified in this amendment.
The Government’s amendments include extensive new objectives for Ofcom, which apply to harmful ways in which a service is used as well as harmful content. We believe it important not to add further to this duty when the outcomes can already be achieved through the existing duty. We do not wish to limit, by implication, Ofcom’s media literacy duties in relation to other, non-regulated services.
We also judge that the noble Lord’s amendment carries a risk of confusing the remits of Ofcom and the Information Commissioner’s Office. UK data protection law already confers a right for people to be informed about how their personal data are being used, making this aspect of the amendment superfluous.
Lord Clement-Jones (LD)
I do not believe that the Minister has dealt with the minimum standards issue.
Lord Parkinson of Whitley Bay (Con)
I do not think that the noble Lord was listening to that point, but I did.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful for the opportunity to set out the need for Clauses 158 and 159. The amendments in this group consider the role of government in two specific areas: the power for the Secretary of State to direct Ofcom about its media literacy functions in special circumstances and the power for the Secretary of State to issue non-binding guidance to Ofcom. I will take each in turn.
Amendment 219 relates to Clause 158, on the Secretary of State’s power to direct Ofcom in special circumstances. These include where there is a significant threat to public safety, public health or national security. This is a limited power to enable the Secretary of State to set specific objectives for Ofcom’s media literacy activity in such circumstances. It allows the Secretary of State to direct Ofcom to issue public statement notices to regulated service providers, requiring providers to set out the steps they are taking to address the threat. The regulator and online platforms are thereby compelled to take essential and transparent actions to keep the public sufficiently informed during crises. The powers ensure that the regulatory framework is future-proofed and well equipped to respond in such circumstances.
As the noble Lord, Lord Clement-Jones, outlined, I corresponded with him very shortly before today’s debate and am happy to set out a bit more detail for the benefit of the rest of the House. As I said to him by email, we expect the media literacy powers to be used only in exceptional circumstances, where it is right that the Secretary of State should have the power to direct Ofcom. The Government see the need for an agile response to risk in times of acute crisis, such as we saw during the Covid-19 pandemic or in relation to the war in Ukraine. There may be a situation in which the Government have access to information, through the work of the security services or otherwise, which Ofcom does not. This power enables the Secretary of State to make quick decisions when the public are at risk.
Our expectation is that, in exceptional circumstances, Ofcom would already be taking steps to address harm arising from the provision of regulated services through its existing media literacy functions. However, these powers will allow the Secretary of State to step in if necessary to ensure that the regulator is responding effectively to these sudden threats. It is important to note that, for transparency, the Secretary of State will be required to publish the reasons for issuing a direction to Ofcom in these circumstances. This requirement does not apply should the circumstances relate to national security, to protect sensitive information.
The noble Lord asked why we have the powers under Clause 158 when they do not exist in relation to broadcast media. We believe that these powers are needed with respect to social media because, as we have seen during international crises such as the Covid-19 pandemic, social media platforms can sadly serve as hubs for low-quality, user-generated information that is not required to meet journalistic standards, and that can pose a direct threat to public health. By contrast, Ofcom’s Broadcasting Code ensures that broadcast news, in whatever form, is reported with due accuracy and presented with due impartiality. Ofcom can fine, or ultimately revoke a licence to broadcast in the most extreme cases, if that code is breached. This means that regulated broadcasters can be trusted to strive to communicate credible, authoritative information to their audiences in a way that social media cannot.
Lord Allan of Hallam (LD)
We established in our last debate that the notion of a recognised news publisher will go much broader than a broadcaster. I put it to the Minister that we could end up in an interesting situation where one bit of the Bill says, “You have to protect content from these people because they are recognised news publishers”. Another bit, however, will be a direction to the Secretary of State saying that, to deal with this crisis, we are going to give a media literacy direction that says, “Please get rid of all the content from this same news publisher”. That is an anomaly that we risk setting up with these different provisions.
Baroness Fox of Buckley (Non-Afl)
On the previous group, I raised the issue of legal speech that was labelled as misinformation and removed in the extreme situation of a public health panic. This was seemingly because the Government were keen that particular public health information was made available. Subsequently, we discovered that those things were not necessarily untrue and should not have been removed. Is the Minister arguing that this power is necessary for the Government to direct that certain things are removed on the basis that they are misinformation—in which case, that is a direct attempt at censorship? After we have had a public health emergency in which “facts” have been contested and shown to not be as black and white or true as the Government claimed, saying that the power will be used only in extreme circumstances does not fill me with great confidence.
Lord Parkinson of Whitley Bay (Con)
I am happy to make it clear, as I did on the last group, that the power allows Ofcom not to require platforms to remove content, only to set out what they are doing in response to misinformation and disinformation—to require platforms to make a public statement about what they are doing to tackle it. In relation to regulating news providers, we have brought the further amendments forward to ensure that those subject to sanctions cannot avail themselves of the special provisions in the Bill. Of course, the Secretary of State will be mindful of the law when issuing directions in the exceptional circumstances that these clauses set out.
Lord Clement-Jones (LD)
While the Minister is describing that, can he explain exactly which media literacy power would be invoked by the kind of example I gave when I was introducing the amendment and in the circumstances he has talked about? Would he like to refer to the Communications Act?
Lord Parkinson of Whitley Bay (Con)
It depends on the circumstances. I do not want to give one example for fear of being unnecessarily restrictive. In relation to the health misinformation and disinformation we saw during the pandemic, an example would be the suggestions of injecting oneself with bleach; that sort of unregulated and unhelpful advice is what we have in mind. I will write to the noble Lord, if he wants, to see what provisions of the Communications Act we would want invoked in those circumstances.
In relation to Clause 159, which is dealt with by Amendment 222, it is worth setting out that the Secretary of State guidance and the statement of strategic priorities have distinct purposes and associated requirements. The purpose of the statement of strategic priorities is to enable the Secretary of State to specifically set out priorities in relation to online safety. For example, in the future, it may be that changes in the online experience mean that the Government of the day wish to set out their high-level overarching priorities. In comparison, the guidance allows for clarification of what Parliament and Government intended in passing this legislation—as I hope we will—by providing guidance on specific elements of the Bill in relation to Ofcom’s functions. There are no plans to issue guidance under this power but, for example, we are required to issue guidance to Ofcom in relation to the fee regime.
On the respective requirements, the statement of strategic priorities requires Ofcom to explain in writing what it proposes to do in consequence of the statement and publish an annual review of what it has done. Whereas Ofcom must “have regard” to the guidance, the guidance itself does not create any statutory requirements.
This is a new regime and is different in its nature from other established areas of regulations, such as broadcasting. The power in Clause 159 provides a mechanism to provide more certainty, if that is considered necessary, about how the Secretary of State expects Ofcom to carry out its statutory functions. Ofcom will be consulted before guidance is issued, and there are checks on how often it can be issued and revised. The guidance document itself, as I said, does not create any statutory requirements, so Ofcom is required only to “have regard” to it.
This will be an open and transparent way to put forward guidance appropriately with safeguards in place. The independence of the regulator is not at stake here. The clause includes significant limitations on the power, and the guidance cannot fetter Ofcom’s operational independence. We feel that both clauses are appropriate for inclusion in the Bill, so I hope that the noble Lord will withdraw his amendment.
Lord Clement-Jones (LD)
I thank the Minister for that more extended reply. It is a more reassuring response on Clause 159 than we have had before. On Clause 158, the impression I get is that the media literacy power is being used as a smokescreen for the Government telling social media what it should do, indirectly via Ofcom. That seems extraordinary. If the Government were telling the mainstream media what to do in circumstances like this, we would all be up in arms. However, it seems to be accepted as a part of the Bill and that we should trust the Government. The Minister used the phrase “special circumstances”. That is not the phraseology in the clause; it is that “circumstances exist”, and then it goes on to talk about national security and public health. The bar is very low.
I am sure everyone is getting hungry at this time of day, so I will not continue. However, we still have grave doubts about this clause. It seems an extraordinary indirect form of censorship which I hope is never invoked. In the meantime, I beg leave to withdraw my amendment.
Member’s explanatory statement
Clause 161 is about a review by the Secretary of State of the regulatory framework established by this Bill. This amendment inserts a reference to Chapter 3A, which is the new Chapter containing the new duties imposed by the Clause proposed after Clause 67 in my name.
Lord Clement-Jones (LD)
My Lords, clearly, there is a limited number of speakers in this debate. We should thank the noble Lord, Lord Moylan, for tabling this amendment because it raises a very interesting point about the transparency—or not—of the Counter Disinformation Unit. Of course, it is subject to an Oral Question tomorrow as well, which I am sure the noble Viscount will be answering.
There is some concern about the transparency of the activities of the Counter Disinformation Unit. In its report, Ministry of Truth, which deals at some length with the activities of the Counter Disinformation Unit, Big Brother Watch says:
“Giving officials an unaccountable hotline to flag lawful speech for removal from the digital public square is a worrying threat to free speech”.
Its complaint is not only about oversight; it is about the activities. Others such as Full Fact have stressed the fact that there is little or no parliamentary scrutiny. For instance, freedom of information requests have been turned down and Written Questions which try to probe what the activities of the Counter Disinformation Unit are have had very little response. As it says, when the Government
“lobby internet companies about content on their platforms … this is a threat to freedom of expression”.
We need proper oversight, so I am interested to hear the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
My Lords, the Government share the view of my noble friend Lord Moylan about the importance of transparency in protecting freedom of expression. I reassure him and other noble Lords that these principles are central to the Government’s operational response to addressing harmful disinformation and attempts artificially to manipulate our information environment.
My noble friend and others made reference to the operational work of the Counter Disinformation Unit, which is not, as the noble Baroness, Lady Fox, said, the responsibility of my department but of the Department for Science, Innovation and Technology. The Government have always been transparent about the work of the unit; for example, recently publishing a factsheet on GOV.UK which sets out, among other things, how the unit works with social media companies.
I reassure my noble friend that there are existing processes governing government engagements with external parties and emphasise to him that the regulatory framework that will be introduced by the Bill serves to increase transparency and accountability in a way that I hope reassures him. Many teams across government regularly meet industry representatives on a variety of issues from farming and food to telecoms and digital infrastructure. These meetings are conducted within well-established transparency processes and frameworks, which apply in exactly the same way to government meetings with social media companies. The Government have been open about the fact that the Counter Disinformation Unit meets social media companies. Indeed, it would be surprising if it did not. For example, at the beginning of the Russian invasion of Ukraine, the Government worked with social media companies in relation to narratives which were being circulated attempting to deny incidents leading to mass casualties, and to encourage the promotion of authoritative sources of information. That work constituted routine meetings and was necessary in confirming the Government’s confidence in the preparedness and ability of platforms to respond to new misinformation and disinformation threats.
To require additional reporting on a sector-by-sector or department-by-department basis beyond the standardised transparency processes, as proposed in my noble friend’s amendment, would be a disproportionate and unnecessary response to what is routine engagement in an area where the Government have no greater powers or influence than in others. They cannot compel companies to alter their terms of service; nor can or do they seek to mandate any action on specific pieces of content.
I reassure the noble Baroness, Lady Fox, that the Counter Disinformation Unit does not monitor individual people, nor has it ever done so; rather, it tracks narratives and trends using publicly available information online to protect public health, public safety and national security. It has never tracked the activity of individuals, and there is a blanket ban on referring any content from journalists or parliamentarians to social media performs. The Government have always been clear that the Counter Disinformation Unit refers content for consideration only where an assessment has been made that it is likely to breach the platform’s own terms of service. It has no role in deciding what action, if any, to take in response, which is entirely a matter for the platform concerned.
As I said, the Bill will introduce new transparency, accountability and freedom of expression duties for category 1 services which will make the process for any removal or restriction of user-generated content more transparent by requiring category 1 services to set terms of service which are clear, easy for users to understand and consistently enforced. Category 1 services will be prohibited from removing or restricting user-generated content or suspending or banning users where this does not align with those terms of service. Any referrals from government will not, and indeed cannot, supersede these duties in the Bill.
Although I know it will disappoint my noble friend that another of his amendments has not been accepted, I hope I have been able to reassure him about the Government’s role in these processes. As the noble Lord, Lord Clement-Jones, noted, my noble friend Lord Camrose is answering a Question on this in your Lordships’ House tomorrow, further underlining the openness and parliamentary accountability with which we go about this work. I hope my noble friend will, in a similarly post-prandial mood of generosity, suppress his disappointment and feel able to withdraw his amendment.
Baroness Fox of Buckley (Non-Afl)
Before the Minister sits down, I think that it is entirely appropriate for him to say—I have heard it before—“Oh no, nothing was taken down. None of this is believable. No individuals were targeted”. However, that is not the evidence I have seen, and it might well be that I have been shown misinformation. But that is why the Minister has to acknowledge that one of the problems here is that indicated by Full Fact—which, as we know, is often endorsed by government Ministers as fact-checkers. It says that because the Government are avoiding any scrutiny for this unit, it cannot know. It becomes a “he said, she said” situation. I am afraid that, because of the broader context, it would make the Minister’s life easier, and be clearer to the public—who are, after all, worried about this—if he accepted the ideas in the amendment of the noble Lord, Lord Moylan. We would then be clear and it would be out in the open. If the FOIs and so on that have been constantly put forward were answered, would that not clear it up?
Lord Parkinson of Whitley Bay (Con)
I have addressed the points made by the noble Baroness and my noble friend already. She asks the same question again and I can give her the same answer. We are operating openly and transparently here, and the Bill sets out further provisions for transparency and accountability.
Lord Moylan (Con)
My Lords, I see what my noble friend did there, and it was very cunning. He gave us a very worthwhile account of the activities of the Counter Disinformation Unit, a body I had not mentioned at all, as if the Counter Disinformation Unit was the sole locus of this sort of activity. I had not restricted it to that. We know, in fact, that other bodies within government have been involved in undertaking this sort of activity, and on those he has given us no answer at all, because he preferred to answer about one particular unit. He referred also to its standardised transparency processes. I can hardly believe that I am reading out words such as those. The standardised transparency process allows us all to know that encounters take place but still refuses to let us know what actually happens in any particular encounter, even though there is a great public interest in doing so. However, I will not press it any further.
My noble friend, who is genuinely a friend, is in danger of putting himself, at the behest of civil servants and his ministerial colleagues, in some danger. We know what happens in these cases. The Minister stands at the Dispatch Box and says “This has never happened; it never normally happens; it will not happen. Individuals are never spoken of, and actions of this character are never taken”. Then of course, a few weeks or months later, out pour the leaked emails showing that all these things have been happening all the time. The Minister then has to resign in disgrace and it is all very sad. His friends, like myself, rally round and buy him a drink, before we never see him again.
Anyway, I think my noble friend must be very careful that he does not put himself in that position. I think he has come close to doing so this evening, through the assurances he has given your Lordships’ House. Although I do not accept those assurances, I will none the less withdraw the amendment, with the leave of the House.
(c) an assessment required to be carried out by section (Assessment duties: user empowerment),”Member’s explanatory statement
This amendment ensures that Clause 173, which is about the approach to be taken by providers to judgements about the status of content, applies to assessments under the new Clause proposed after Clause 11 in my name.
Lord Stevenson of Balmacara (Lab)
My Lords, this has been a good debate. It is very hard to see where one would want to take it. If it proves anything, it is that the decision to drop the legal but harmful provisions in the Bill was probably taken for the wrong reasons but was the right decision, since this is where we end up—in an impossible moral quandary which no amount of writing, legalistic or otherwise, will get us out of. This should be a systems Bill, not a content Bill.
Lord Parkinson of Whitley Bay (Con)
My Lords, I start by saying that accurate systems and processes for content moderation are crucial to the workability of this Bill and keeping users safe from harm. Amendment 228 from the noble Lord, Lord Allan of Hallam, seeks to remove the requirement for platforms to treat content as illegal or fraudulent content if reasonable grounds for that inference exist. The noble Lord set out his concerns about platforms over-removing content when assessing illegality.
Under Clause 173(5), platforms will need to have reasonable grounds to determine whether content is illegal or a fraudulent advertisement. Only when a provider has reasonable grounds to infer that said content is illegal or a fraudulent advertisement must it then comply with the relevant requirements set out in the Bill. This would mean removing the content or preventing people from encountering it through risk-based and proportionate systems and processes.
“Time for publishing first guidance under certain provisions of this Act
(1) OFCOM must publish guidance to which this section applies within the period of 18 months beginning with the day on which this Act is passed. (2) This section applies to—(a) the first guidance under section 47(2)(a) (record-keeping and review);(b) the first guidance under section 47(2)(b) (children’s access assessments);(c) the first guidance under section 48(1) (content harmful to children);(d) the first guidance under section 73 (provider pornographic content);(e) the first guidance under section 90(1) (illegal content risk assessments under section 8);(f) the first guidance under section 90(2) (illegal content risk assessments under section 22);(g) the first guidance under section 90(3) (children’s risk assessments);(h) the first guidance under section 140 (enforcement);(i) the first guidance under section 174 relating to illegal content judgements within the meaning of subsection (2)(a) of that section (illegal content and fraudulent advertisements).(3) If OFCOM consider that it is necessary to extend the period mentioned in subsection (1) in relation to guidance mentioned in any of paragraphs (a) to (i) of subsection (2), OFCOM may extend the period in relation to that guidance by up to 12 months by making and publishing a statement.But this is subject to subsection (6).(4) A statement under subsection (3) must set out—(a) the reasons why OFCOM consider that it is necessary to extend the period mentioned in subsection (1) in relation to the guidance concerned, and(b) the period of extension.(5) A statement under subsection (3) may be published at the same time as (or incorporate) a statement under section 38(12) (extension of time to prepare certain codes of practice).(6) But a statement under subsection (3) may not be made in relation to guidance mentioned in a particular paragraph of subsection (2) if—(a) a statement has previously been made under subsection (3) (whether in relation to guidance mentioned in the same or a different paragraph of subsection (2)), or(b) a statement has previously been made under section 38(12).”Member’s explanatory statement
This amendment provides that OFCOM must prepare the first guidance under certain provisions of the Bill within 18 months of Royal Assent, unless they consider a longer period to be necessary in which case OFCOM may (on one occasion only) extend the period and set out why in a published statement.
“(ga) Chapter 3A of Part 4 (deceased child users);”Member’s explanatory statement
Clause 176 is about liability of providers who are individuals. This amendment inserts a reference to Chapter 3A, which is the new Chapter containing the new duties imposed by the Clause proposed after Clause 67 in my name, so that individuals may be jointly and severally liable for the duties imposed by that clause.
Member’s explanatory statement
This amendment is a minor change to ensure consistency of tenses.
Lord Parkinson of Whitley Bay
232: Schedule 17, page 247, line 35, at end insert—
“(ba) section (Assessment duties: user empowerment) (assessments related to the adult user empowerment duty set out in section 12(2)), and”
Member’s explanatory statement
This amendment ensures that, during the transitional period when video-sharing platform services continue to be regulated by Part 4B of the Communications Act 2003, providers of such services are not exempt from the new duty in the new clause proposed after Clause 11 in my name to carry out assessments for the purposes of the user empowerment duties in Clause 12(2).
Member’s explanatory statement
This amendment ensures that, during the transitional period when video-sharing platform services continue to be regulated by Part 4B of the Communications Act 2003, providers of such services are not exempt from the new duty inserted in Clause 19 (see the amendments of that Clause proposed in my name) to keep records of the new assessments.
234: Schedule 17, page 248, line 20, at end insert—
“(ea) the duties set out in section (Disclosure of information about use of service by deceased child users) (deceased child users);”Member’s explanatory statement
This amendment ensures that services already regulated under Part 4B of the Communications Act 2003 (video-sharing platform services) are not required to comply with the new duties imposed by the clause proposed after Clause 67 in my name during the transitional period.
Lord Parkinson of Whitley Bay
236A: After Clause 194, insert the following new Clause—
“Power to regulate app stores
(1) Subject to the following provisions of this section and section (Power to regulate app stores: supplementary), the Secretary of State may by regulations amend any provision of this Act to make provision for or in connection with the regulation of internet services that are app stores.
(2) Regulations under this section may not be made before OFCOM have published a report under section (OFCOM’s report about use of app stores by children)(report about use of app stores by children).
(3) Regulations under this section may be made only if the Secretary of State, having considered that report, considers that there is a material risk of significant harm to an appreciable number of children presented by either of the following, or by both taken together—
(a) harmful content present on app stores, or
(b) harmful content encountered by means of regulated apps available in app stores.
(4) Before making regulations under this section the Secretary of State must consult—
(a) persons who appear to the Secretary of State to represent providers of app stores,
(b) persons who appear to the Secretary of State to represent the interests of children (generally or with particular reference to online safety matters),
(c) OFCOM,
(d) the Information Commissioner,
(e) the Children’s Commissioner, and
(f) such other persons as the Secretary of State considers appropriate.
(5) In this section and in section (Power to regulate app stores: supplementary)—
“amend” includes repeal and apply (with or without modifications);
“app” includes an app for use on any kind of device, and “app store” is to be read accordingly;
“content that is harmful to children” has the same meaning as in Part 3 (see section 54);
“harmful content” means—
(a) content that is harmful to children,
(b) search content that is harmful to children, and
(c) regulated provider pornographic content;
“regulated app” means an app for a regulated service;
“regulated provider pornographic content” has the same meaning as in Part 5 (see section 70);
“search content” has the same meaning as in Part 3 (see section 51).
(6) In this section and in section (Power to regulate app stores: supplementary) references to children are to children in the United Kingdom.”
Member’s explanatory statement
This amendment provides that the Secretary of State may make regulations amending this Bill so as to bring app stores within its scope. The regulations may not be made until OFCOM have published their report about the use of app stores by children (see the new Clause proposed to be inserted after Clause 147 in my name).
Lord Parkinson of Whitley Bay (Con)
My Lords, we have had some productive discussions on application stores, commonly known as “app stores”, and their role as a gateway for children accessing online services. I am grateful in particular to my noble friend Lady Harding of Winscombe for her detailed scrutiny of this area and the collaborative approach she has taken in relation to it and to her amendments, to which I will turn in a moment. These share the same goals as the amendments tabled in my name in seeking to add evidence-based duties on app stores to protect children.
The amendments in my name will do two things. First, they will establish an evidence base on the use of app stores by children and the role that app stores play in children encountering harmful content online. Secondly, following consideration of this evidence base, the amendments also confer a power on the Secretary of State to bring app stores into scope of the Bill should there be a material risk of significant harm to children on or through them.
On the evidence base, Amendment 272A places a duty on Ofcom to publish a report on the role of app stores in children accessing harmful content on the applications of regulated services. To help build a greater evidence base about the types of harm available on and through different kinds of app stores, the report will consider a broad range of these stores, which could include those available on various devices, such as smartphones, gaming devices and smart televisions. The report will also assess the use and effectiveness of age assurance on app stores and consider whether the greater use of age assurance or other measures could protect children further.
Publication of the report must be two to three years after the child safety duties come into force so as not to interfere with the Bill’s implementation timelines. This timing will also enable the report to take into account the impact of the regulatory framework that the Bill establishes.
Amendment 274A is a consequential amendment to include this report in the Bill’s broader confidentiality provisions, meaning that Ofcom will need to exclude confidential matters—for example, commercially sensitive information—from the report’s publication.
Government Amendments 236A, 236B and 237D provide the Secretary of State with a delegated power to bring app stores into the scope of regulation following consideration of Ofcom’s report. The power will allow the Secretary of State to make regulations putting duties on app stores to reduce the risks of harm presented to children from harmful content on or via app stores. The specific requirements in these regulations will be informed by the outcome of the Ofcom report I have mentioned.
As well as setting out the rules for app stores, the regulations may also make provisions regarding the duties and functions of Ofcom in regulating app stores. This may include information-gathering and enforcement powers, as well as any obligations to produce guidance or codes of practice for app store providers.
By making these amendments, our intention is to build a robust evidence base on the potential risks of app stores for children without affecting the Bill’s implementation more broadly. Should it be found that duties are required, the Secretary of State will have the ability to make robust and comprehensive duties, which will provide further layers of protection for children. I beg to move.
Baroness Harding of Winscombe (Con)
My Lords, before speaking to my Amendment 239A, I thank my noble friend the Minister, the Secretary of State and the teams in both the department and Ofcom for their collaborative approach in working to bring forward this group of amendments. I also thank my cosignatories. My noble friend Lady Stowell cannot be in her place tonight but she has been hugely helpful in guiding me through the procedure, as have been the noble Lords, Lord Stevenson, Lord Clement-Jones and Lord Knight, not to mention the noble Baroness, Lady Kidron. It has been a proper cross-House team effort. Even the noble Lord, Lord Allan, who started out quite sceptical, has been extremely helpful in shaping the discussion.
I also thank the NSPCC and Barnardo’s for their invaluable advice and support, as well as Snap and Match—two companies which have been willing to stick their heads above the parapet and challenge suppliers and providers on which they are completely dependent in the shape of the current app store owners, Apple and Google.
I reassure my noble friend the Minister—and everyone else—that I have no intention of dividing the House on my amendment, in case noble Lords were worried. I am simply seeking some reassurance on a number of points where my amendments differ from those tabled by the Government—but, first, I will highlight the similarities.
As my noble friend the Minister has referred to, I am delighted that we have two packages of amendments that in both cases recognise that this was a really significant gap in the Bill as drafted. Ignoring the elements of the ecosystem that sell access to regulated services, decide age guidelines and have the ability to do age assurance was a substantial gap in the framing of the Bill. But we have also recognised together that it is very important that this is an “and” not an “or”—it is not instead of regulating user-to-user services or search but in addition to. It is an additional layer that we can bring to protect children online, and it is very important that we recognise that—and both packages do.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am very grateful for the strength of support and echo the tributes that have been paid to my noble friend Lady Harding—the winsome Baroness from Winscombe —for raising this issue and working with us so collaboratively on it. I am particularly glad that we were able to bring these amendments on Report; as she knows, it involved some speedy work by the Bill team and some speedy drafting by the Office of the Parliamentary Counsel, but I am glad that we were able to do it on Report, so that I can take it off my list of things to do over the summer, which was kindly written for me by the noble Lord, Lord Clement-Jones.
My noble friend’s amendments were laid before the Government’s, so she rightly asked a couple of questions on where they slightly differ. Her amendment seeks to ensure that other websites or online marketplaces that allow users to download apps are also caught by these duties. I reassure her that the Government’s amendments would capture these types of services. We have intentionally not provided detail about what constitutes an app store to ensure that the Bill remains future-proof. I will say a bit more about that in a moment. Regulations made by the Secretary of State under this power will be able to specify thresholds for which app stores are in scope, giving clarity to providers and users about the application of the duties.
On questions of definition, we are intentionally choosing not to define app stores in these amendments. The term is generally understood as meaning a service that makes applications available, which means that the Secretary of State will be able to impose duties on any such service. Any platform that enables apps to be downloaded can therefore be considered an app store for the purpose of this duty, regardless of whether or not it calls itself one. Regulations will clearly set out which providers are in scope of the duties. The ability to set threshold conditions will also ensure that any duties capture only those that pose the greatest risk of children accessing harmful content.
We touched on the long-running debate about content and functionality. We have made our position on that clear; it will be caught by references to content. I am conscious that we will return to this on Wednesday, when we will have a chance to debate it further.
On timing, as I said, I am glad that we were able to bring these amendments forward at this stage. The publication date for Ofcom’s report is to ensure that Ofcom can prioritise the implementation of the child safety duties and put in place the Bill’s vital protections for children before turning to its research on app stores.
That timing also allows the Secretary of State to base his or her decision on commencement on the effectiveness of the existing framework and to use the research of Ofcom’s report to set out a more granular approach to issues such as risk assessment and safety duties. It is necessary to await the findings of Ofcom’s report before those duties are commenced.
To the questions posed by the noble Baroness, Lady Kidron, and others about the consultation for that report by Ofcom, we expect Ofcom to consult widely and with all relevant parties when producing its report. We do not believe that there is a need for a specific list of consultees given Ofcom’s experience and expertise in this area as well as the great experience it will have through its existing enforcement and wider consultation requirements. In addition, the Secretary of State, before making regulations, will be required to consult a range of key parties, such as the Children’s Commissioner and the Information Commissioner, and those who represent the interests of children, as well as providers of app stores. That can include children themselves.
On the questions asked by the noble Lord, Lord Knight, on loot boxes, he is right that this piece of work is being led by my department. We want to see the games industry take the lead in strengthening protections for children and adults to mitigate the risk of harms. We are pursuing that through a DCMS-led technical working group, and we will publish an update on progress in the coming months. I again express my gratitude to my noble friend Lady Harding and other noble Lords who have expressed their support.
“Power to regulate app stores: supplementary
(1) In this section (except in subsection (4)(c)) “regulations” means regulations under section (Power to regulate app stores)(1).(2) Provision may be made by regulations only for or in connection with the purposes of minimising or mitigating the risks of harm to children presented by harmful content as mentioned in section (Power to regulate app stores)(3)(a) and (b).(3) Regulations may not have the effect that any body other than OFCOM is the regulator in relation to app stores.(4) Regulations may—(a) make provision exempting specified descriptions of app stores from regulation under this Act;(b) make provision amending Part 2, section 49 or Schedule 1 in connection with provision mentioned in paragraph (a);(c) make provision corresponding or similar to provision which may be made by regulations under paragraph 1 of Schedule 11 (“threshold conditions”), with the effect that only app stores which meet specified conditions are regulated by this Act.(5) Regulations may make provision having the effect that app stores provided from outside the United Kingdom are regulated by this Act (as well as app stores provided from within the United Kingdom), but, if they do so, must contain provision corresponding or similar to section 3(5) and (6)(UK links).(6) The provision that may be made by regulations includes provision—(a) imposing on providers of app stores duties corresponding or similar to duties imposed on providers of Part 3 services by—(i) section 10 or 11 (children’s online safety: user-to-user services) or any of sections 16 to 19 so far as relating to section 10 or 11;(ii) section 24 or 25 (children’s online safety: search services) or any of sections 26 to 29 so far as relating to section 24 or 25;(b) imposing on providers of app stores duties corresponding or similar to duties imposed on providers of internet services within section 71(2) by section 72 (duties about regulated provider pornographic content);(c) imposing on providers of app stores requirements corresponding or similar to requirements imposed on providers of regulated services by, or by OFCOM under, Part 6 (fees); (d) imposing on OFCOM duties in relation to app stores corresponding or similar to duties imposed in relation to Part 3 services by Chapter 3 of Part 7 (OFCOM’s register of risks, and risk profiles);(e) conferring on OFCOM functions in relation to app stores corresponding or similar to the functions that OFCOM have in relation to regulated services under—(i) Chapter 4 of Part 7 (information), or(ii) Chapter 6 of Part 7 (enforcement), including provisions of that Chapter conferring power for OFCOM to impose monetary penalties;(f) about OFCOM’s production of guidance or a code of practice relating to any aspect of the regulation of app stores that is included in the regulations.(7) The provision that may be made by regulations includes provision having the effect that app stores fall within the definition of “Part 3 service” or “regulated service” for the purposes of specified provisions of this Act (with the effect that specified provisions of this Act which apply in relation to Part 3 services or regulated services, or to providers of Part 3 services or regulated services, also apply in relation to app stores or to providers of app stores).(8) Regulations may not amend or make provision corresponding or similar to—(a) Chapter 2 of Part 4 (reporting CSEA content),(b) Chapter 5 of Part 7 (notices to deal with terrorism content and CSEA content), or(c) Part 10 (communications offences).(9) Regulations may make different provision with regard to app stores of different kinds.(10) In this section “specified” means specified in regulations.”Member’s explanatory statement
This amendment makes provision about the purpose and contents of regulations to regulate app stores which may be made by the Secretary of State under the preceding new Clause proposed to be inserted in my name.