Online Pornography (Commercial Basis) Regulations 2018

Lord Ashton of Hyde Excerpts

Tuesday 11th December 2018 Lords Chamber

Moved by

[Lord Ashton of Hyde]

That the draft Regulations laid before the House on 10 October be approved.

Special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 38th Report, 4th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B).

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, the Digital Economy Act 2017 introduced a requirement for commercial providers of online pornography to have robust age-verification controls in place to prevent children and young people under 18 accessing pornographic material. Section 14(2) of the Act states:

“The Secretary of State may make regulations specifying … circumstances in which material is or is not to be regarded as made available on a commercial basis”.


In a sense, this is a small part of the legislative jigsaw needed to implement age verification: indeed, it is the last piece. I therefore beg to move that the draft regulations and the guidance published by the British Board of Film Classification, which is the designated regulator in respect of these measures, on age-verification arrangements and ancillary service providers be approved.

I bring to the attention of the House the concerns of the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee and thank them for their work. I will address their concerns in a moment and the Motion to Regret later, but before considering the specific points related to this debate, I want to remind the House of why the Government introduced this requirement.

In the offline world, there are strict rules to prevent children accessing adult content. This is not true of the online world. A large amount of pornography is available on the internet in the UK, often for free, with little or no protection to ensure that those accessing it are old enough to do so. This is changing the way that young people understand healthy relationships, sex and consent. A 2016 report commissioned by the Children’s Commissioner and the NSPCC makes that clear. More than half of the children sampled had been exposed to online pornography by the age of 15 and nearly half of boys thought pornography was “realistic”. Just under half wished to emulate what they had seen. The introduction of a requirement for age-verification controls is a necessary step to tackle these issues and contributes towards our commitment to making the UK the safest place in the world to be online. I urge noble Lords, in the ensuing debate, to bear this primary objective in mind and help us ensure the commencement of age verification as soon as possible.

The draft Online Pornography (Commercial Basis) Regulations set out the basis on which pornographic material is to be regarded as made available on a commercial basis. The regulations cover material on websites and applications that charge for access and they also cover circumstances where a person makes pornographic material available on the internet for free but that person receives other payment or reward in connection with doing so, for example through advertising revenue. It was clear from debates during the passage of the Digital Economy Act that it was not Parliament’s intention that social media sites on which pornography is only part of the overall content should be required to have age verification. That is reflected in the draft regulations we are debating today. We have set a threshold to ensure proportionality where material is made available free of charge. Thus there is an exemption for people making pornographic material available where it is less than one-third of the content on the website or application on which it is made available. This will ensure that websites that do not derive a significant proportion of their overall commercial benefit from pornography are not regarded as commercial pornographic websites. However, should such a website or app be marketed as making pornographic material available, a person making pornographic material available on that website or app will be considered to be making it available on a commercial basis, even if it constitutes less than one-third of the total.

This is a proportionate way of introducing a new policy. I am confident that these measures represent the most effective way of commencing this important new policy, but my department will, of course, keep it under review. Indeed, the Secretary of State must report on the regulatory framework within 12 to 18 months of commencement. In addition, the upcoming online harms White Paper will give us an opportunity to review the wider context of this policy.

We have also laid two pieces of BBFC guidance: the Guidance on Age-verification Arrangements and the Guidance on Ancillary Service Providers. The guidance on AV arrangements sets out the criteria by which the BBFC will assess that a person has met the requirements of Section 14 of the Digital Economy Act to ensure that pornographic material is not normally accessible by those under 18. The criteria mandate: an effective control mechanism at the point of access to verify that a user is aged 18 or over; strict requirements on age-verification data; a requirement to ensure that “revisits” do not allow automatic re-entry; and prevention of non-human operators exercising the age-verification regime. The BBFC also provided examples of non-compliant features to help interested companies. The latter guidance provided a non-exhaustive list of ancillary service providers that the BBFC will consider. This list is not exhaustive, to ensure that this policy remains flexible to future developments. The BBFC published draft versions of both pieces of guidance and ran a public consultation for four weeks on the content. The draft guidance laid before this House takes account of comments received from affected companies and others.

I turn to the views of the JCSI, to which I referred earlier. We have been clear that although it will be a major step forward, age verification is not a complete answer to preventing children viewing online pornography, and we know that we are doing something difficult. Indeed, we are the first country anywhere in the world to introduce such a measure. We have considered the JCSI concerns carefully. We do not believe that the variation in the language of the legislation, between “met” and “applied”, will be difficult for a court to interpret. As for the committee’s concerns about the content threshold, the committee anticipates difficulty with the application and interpretation of the regulation. As I have already said, the regulation will not apply in a case where it is reasonable for the age-verification regulator to assume—those words are important—that pornographic material makes up less than one-third of the content. As is stated in the BBFC guidance, the BBFC will seek to engage and work with a person who may be in contravention of the requirement before commencing enforcement action.

I am aware that the committee has also drawn the special attention of both Houses to these two draft pieces of guidance, because in its view they fail to contain the guidance required by Section 25(1) of the 2017 Act and contain material that should not have been included. Section 3, paragraph 5 of the Guidance on Age-verification Arrangements sets out the criteria on age-verification arrangements which the regulator will treat as complying with age verification. The guidance then goes on, in paragraph 6, to give examples of features which, in isolation, do not comply with the age-verification requirement. This approach ensures fairness. It takes a product-neutral approach and, rather than recommending a particular solution, sets out principles to encourage innovation. The ancillary services providers’ guidance provides a non-exhaustive list of classes of providers which the age-verification regulator may consider as within scope in Section 3, paragraph 3. However, in order to ensure that this policy remains flexible for future developments, it is necessary that this is a non-exhaustive list. Where new classes of ancillary services appear in the future, the BBFC’s guidance explains the process by which these services will be informed.

The guidance includes additional material, as this is a new policy, and the regulator considered that it was important for stakeholders that its guidance set out the wider context in which the age-verification regulator will carry out regulation. This includes valuable guidance on matters such as the BBFC’s approach and powers, and material on data protection. We find it somewhat perverse that it should be prevented from including helpful guidance simply because it was not specifically mentioned in the Act.

We are also aware of the Secondary Legislation Scrutiny Committee’s special interest report. That committee raised some similar concerns to the JCSI; for example, on the content threshold and the requirements in the BBFC’s guidance. The responses to the concerns of the SLSC on these points are the same as the responses we have just given to the JSCI reports.

However, the SLSC also suggested that the House might want to ask what action the Government would take to tackle pornographic material available that does not fall within the criteria set out in the regulations. I appreciate that some pornography is available by means not covered by our regulations. This was the subject of extensive discussion during the passage of the Act. In particular, concern has been expressed about social media platforms. We expect those platforms to enforce their own terms and conditions and to protect children from harmful content. Indeed, the Government have been clear that online platforms must do more to protect users from such harmful content. We will set out our plans for new legislation to ensure that companies make their platforms safer, in the forthcoming online harms White Paper.

I recognise that age verification is not a complete answer but I am proud that this Government are leading the way internationally in our actions to protect children online. I beg to move.

[The Lord Bishop of Chester]

My Lords, I am pleased to speak in general support of the regulations and guidance. They relate to matters which I and others raised during the passage of the Digital Economy Bill in 2017 and, more broadly, to issues debated by the House a couple of years ago in a balloted debate that I introduced. The subject of that debate was the impact of pornography on our society. While there was some disagreement over the impact of pornography on adults, there was virtual unanimity that children needed to be protected from pornography—as far as this could reasonably be achieved. I seem somehow, by default, to have become the episcopal expert on pornography. I am trying to live that down. It is just the way it has fallen—although I often find myself talking from these Benches about things I have not had much experience of.

The regulations deal with protecting children through the introduction of robust age-verification procedures for accessing at least some pornographic sites. I welcome them but I note that there remains good evidence for believing that adult access to pornography is also often harmful. The recent report on sexual harassment by the Women and Equalities Select Committee in the other place made this point in a new context, particularly in relation to violent pornography. My welcome of the regulations and guidance is also tempered by some questions which they pose, and which I would like to put to the Minister.

My main concern relates to access to pornography on websites that do not charge for access. Provided their pornographic content is limited to one-third of their total content, they are exempted from the regulations. They may not charge but they may make money from advertising and other sources. What is the rationale for choosing one-third and not, say, 10%? Parents really do not want their children to stumble across online pornography and arguably children are more likely to do that if it is a website that does not charge in the first place. Why is it one-third? I realise that enforcement against every site would be a challenge, but surely the obligation to use access by age verification should be on all sites which promote pornography. What we need is a culture change in relation to child protection and not a partial, piecemeal and limited approach, which I fear these regulations, in some respects, provide.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, I thank noble Lords for their contributions and for the myriad questions which I will try to answer, in a slightly random order. It is important that we take a bit of time to discuss these; as many noble Lords have said, this is the start of something quite complicated. As I said at the beginning, we ought to bear in mind that we are trying to protect children. In the debates during the passage of the Digital Economy Bill, the Government always acknowledged that they would not have a complete solution, as many noble Lords said and as I mentioned during my opening remarks. We will take on board noble Lords’ comments. Indeed, we have shown—this is a partial answer to the question of why it has taken so long—that we have consulted quite widely; we have discussed the wording of the regulations themselves and the guidelines; and the Secretary of State’s guidelines to the BBFC, which the noble Lord, Lord Clement-Jones, mentioned, were available during the passage of the Digital Economy Bill.

We have tried to involve people, which is right given that we are at the beginning of something unique in the world. When we come to talk—I put a certain amount of emphasis on this—about social media and some of the areas that we do not cover in these regulations, we will look at those either in the review to come within 12 to 18 months or in the online harms White Paper. We are still discussing that White Paper and are still open to ideas about what it should include. I am pleased to say that the Secretary of State will make a meeting available to all Peers to discuss what they think should be in the White Paper. We will do that as soon as we can; I will let Peers know about it in due course.

--- Later in debate ---

[Lord Stevenson of Balmacara]

I am sure that the noble Baroness, Lady Howe, was about to leap to her feet but, to save her doing so, I mention to the Minister that he did not answer the question which she posed, and which was picked up by the noble Baroness, Lady Benjamin, about whether he would find time for the excellent two-paragraph Bill which she has in process and which would solve many of these problems.

[Lord Ashton of Hyde]

I had not forgotten that. It would obviously be difficult for me to commit to finding the necessary time but I will take that back to the department. I am not sure that it is currently within the plans of the Chief Whip to bring forward that legislation but I will ask. I understand the point that is being made but, as I said, the issue may well be covered within the review. I am afraid I cannot go any further than that tonight.

As for ancillary service providers, the BBFC and the DDCMS have been engaging with several companies. They have already agreed to act, as doing so is in line with their current terms of service. Therefore, we are optimistic that the voluntary approach will work, and of course that will be reviewed.

The right reverend Prelate, the noble Earl, Lord Erroll, and others talked about the rationale for choosing one-third of content as the appropriate threshold. During the passage of the Bill, it was established that the focus should be on commercial pornography sites and not on social media. There were good reasons for that but I do not want to revisit them—that is what was decided. The one-third threshold was regarded as proportionate in introducing this new policy where sites make pornography available free of charge. However, websites that market themselves as pornographic will also be required to have age verification, even if less than a third of the content is pornographic.

A third is an arbitrary amount. It was discussed and consulted on, and we think that it is a good place to start on a proportionate basis. We will keep this matter under review and, as I said, it will be one of the obvious things to be taken into account during the 12 to 18-month review. The noble Lord, Lord Morrow, asked how it will be measured. It will be measured by assessing the number of pieces of content rather than the length of individual videos. It will include all pornographic images, videos and individual bits of content, but the point to remember is that the threshold is there so that a decision can be made on whether it is reasonable for the regulator to assume that pornographic content makes up more than one-third of the entire content. This will be done by sampling the various sites.

The noble Earl, Lord Erroll, asked about ISP blocking and suggested that everyone would try to game the system to get out of meeting the requirements. That is not what we believe. The BBFC has already engaged with ISPs and we are confident that this will be an effective sanction. The wording in the guidance indicates that the regulator should take a “proportionate approach”. However, we are grateful for the noble Earl’s help. I am sure that he will also help during the review and later in the process when it comes to online harms. I see that he wants to help now.

[The Earl of Erroll]

It is not the ISPs that I am worried about; it is the websites that will game the system on notification, appeals and so on. That is the bit that will take a long time.

[Lord Ashton of Hyde]

We are confident it will work, but we will have to see when it comes to the review. It is an arbitrary figure that we came to by consensus. I will leave it at that.

The noble Lord, Lord Paddick, talked about education for children about sex and relationships. We are extending that by making relationships education compulsory in all primary schools. Relationships and sex education is compulsory in all secondary schools and health education compulsory in primary and secondary schools. We understand that it is important. Together with the protection of children we are introducing today, we will have to keep an eye on it. I notice that the DCMS committee in the other place is launching an inquiry into, among other things, the effects of social media on people’s attitudes, including those of children. In a sense, we are all learning as we go, because the technology is developing. It is something we are aware of and keeping an eye on, and we take the point.

As for the big issue of the evening, and why social media sites are not in the scope, that was a decision taken after a debate during the passage of the Digital Economy Bill. We did not want to prevent the benefits of social media sites. But I confirm to the noble Lord, Lord Stevenson, that we will consider that in the online harms White Paper. Noble Lords will be welcome to add their thoughts on that very soon—either just before or after Christmas.

As noble Lords have mentioned, there is a memorandum of understanding that clarifies the role of the ICO and what powers it will have instead of the BBFC. The BBFC will administer the voluntary certification scheme that will hold AV services to the highest standards of privacy protection and cybersecurity. We expect the vast majority of AV services to seek accreditation. Furthermore, the BBFC will inform the ICO of any non-certified age-verification solutions it finds, and the ICO will be able to take a look at them. Even if they do not want to apply for voluntary certification, the ICO will make sure they are subject to the full rigours of the GDPR.

I have covered most of the main points; I will look at Hansard and write to noble Lords if I have not covered any. I think it is evident from all the contributions from across the House that this is a complex and novel policy that requires sensitive handling. Having listened to all contributions and heard limited support for the regulations as they stand, albeit with some suggestions for improvement, I remain of the view that these regulations set out clearly what will fall within their scope. I think the guidance from the BBFC sets out clearly how it will assess the requirements of Section 14 and clarifies the BBFC’s approach to payment and ancillary service providers.

We are on the verge of doing something important that has the potential to make a real difference to the experience children have online and to make the internet a safer place for them, so I finish where I began. We are here to protect children, and for that reason I ask the noble Lord, Lord Stevenson, to withdraw his Motion, or indeed not to move it, and respectfully ask the House to approve the two guidances and the statutory instrument.

Motion agreed.

Guidance on Age-verification Arrangements

Lord Ashton of Hyde Excerpts

Tuesday 11th December 2018 Lords Chamber

Moved by

[Lord Ashton of Hyde]

That the draft Guidance laid before the House on 25 October be approved.

Special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 39th Report, 4th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B).

Motion agreed.

Guidance on Ancillary Service Providers

Lord Ashton of Hyde Excerpts

Tuesday 11th December 2018 Lords Chamber

Moved by

[Lord Ashton of Hyde]

That the draft Guidance laid before the House on 25 October be approved.

Special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 39th Report, 4th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B).

Motion agreed.

Internet Safety

Lord Ashton of Hyde Excerpts

Tuesday 4th December 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, the UK Council for Internet Safety is a voluntary non-statutory body; it does not receive any government financial support. Members of the council, who are drawn from the public sector, the tech industry and civil society, voluntarily commit their organisations’ resource to deliver collaborative projects in support of internet safety. UKCIS is supported by a small secretariat team in the Department for Digital, Culture, Media and Sport.

[Baroness Benjamin (LD)]

My Lords, internet safety is needed more than ever and we cannot just rely on part-time volunteers to do the job—this is what they tell me. To ensure that this new council deals with the enormous challenges of hate crime, sex abuse, fraud, and violence against women and children, will the Government properly support its work through substantial resources to initiate and pay for research and events linked to its primary objective of keeping the nation safe online, especially our children?

[Lord Ashton of Hyde]

I completely agree that it is important that UKCIS helps to contribute to online safety. That is why we expanded its role from concentrating just on child internet safety to include, as the noble Baroness mentioned, hate crime, serious violence and extremism. As far as resources are concerned, the previous body—the United Kingdom Council for Child Internet Safety—has demonstrated that getting together a mix of tech companies, public bodies and government achieves good results. That is not the only thing we are doing. The online harms White Paper, which is coming by the end of the winter, will address some of the other issues, one of which will have to be funding.

[Lord Griffiths of Burry Port (Lab)]

My Lords, as the Minister said, the body we are speaking about has developed from being concerned specifically with children to having a more generic nature. It has a complex set of relationships with various departments of government, including health, the Home Office and education, especially the part dealing with young people’s mental health. It is a complicated structure. In the consultation, a lack of direction in the previous body was bemoaned. Can the Minister assure us that there is a sense of direction and purpose, appropriately monitored, in this voluntary body? Given that we have extended the remit from just children to a generic range of interests—and given that in the past month or so in this House, children and obesity, knife crime, bullying, gambling, image and performance-enhancing drugs and the internet have all been discussed—can the Minister assure me that the needs of children are not being diminished as a result of being wrapped up into a more generic body?

[Lord Ashton of Hyde]

On the noble Lord’s first question, there has just been a board meeting and the council has reaffirmed the areas of focus: first, online harms experienced by children; secondly, radicalisation and extremism; thirdly, violence against women and girls; fourthly, serious violence; and fifthly, hate crime and hate speech. So there is a definite desire to address these very important matters. As I said in my previous Answer to the noble Baroness, we will look at other areas in the online harms White Paper.

There is absolutely no doubt that children are still a prime concern, as the composition of the board shows. The director of BBC Children’s, the CEO of Childnet, the Children’s Commissioner, the CEOs of Internet Matters and the Internet Watch Foundation, the lead for the National Police Chiefs’ Council, the head of child safety online for the NSPCC and the deputy director of child protection for the Scottish Government are all members of the board and they will certainly make sure that children’s issues are at the forefront of their work.

[Viscount Colville of Culross (CB)]

My Lords, the council is developing a programme of online guidance for schools. Does the Minister not think that there should be government funding for a digital literacy campaign supported by the council? That is particularly important when it comes to the ability to read the terms and conditions used on websites and tech company sites.

[Lord Ashton of Hyde]

Yes, I agree that that is important for all people online, not just children.

[The Lord Bishop of Chelmsford]

My Lords, may I extend this question a little further? This is such an important issue and our generation will be judged on it as the internet and digital age takes over. Noble Lords will know those clever algorithms that are so good at selling us things—if we buy one thing they will try to sell us something else. Those could be turned towards the interests of internet safety by advancing something called safety by design. What consideration are the Government giving to much more forward-thinking legislation not just to support bodies such as the Council for Internet Safety, but to introduce measures to make our inhabiting of the digital world safer and more creative?

[Lord Ashton of Hyde]

Yes, the right reverend Prelate makes a good point. That is why the Internet Safety Strategy Green Paper set out the need for the industry to think safety first by designing products and platforms in a way that makes them less likely to cause harm. We need to make that as simple as possible for the industry and we need to be aware of the impact on SMEs and growing companies. The White Paper will address this issue further and will, for example, examine the case for a set of safety-by-design guidelines for the industry. It will also set out the Government’s approach to the use of safety technology.

[Lord Leigh of Hurley (Con)]

Will my noble friend consider instructing the committee to look at the anonymity of social media and in particular whether or not tweeting should be allowed from anonymous people?

[Lord Ashton of Hyde]

No, it is not part of the Government’s thought process to instruct the committee to do anything. The Government will consider issues such as those raised by my noble friend in the online harms White Paper.

Tourism: Regulation

Lord Ashton of Hyde Excerpts

Tuesday 4th December 2018 Lords Chamber

[Baroness Doocey]

To ask Her Majesty’s Government whether they have plans to introduce further regulation in the tourism sector.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, we continue to work hard to shape the regulatory framework so that it is underpinned by common sense, as outlined in the Government’s Tourism Action Plan. We are also working closely with the hospitality and tourism sector to identify areas where less, or indeed more, regulation would support additional growth.

[Baroness Doocey (LD)]

I thank the Minister for his response, but there is concern in the tourism industry that regulation of the accommodation sector has not kept pace with technology and that some platforms are operating on the very margins of regulatory compliance. In the sharing economy, there is no distinct system in place to ensure that adequate fire and safety standards are enforced. There is also no legal requirement to ensure that hosts purchase public liability insurance. What will the Government do to rectify this and would the Minister be willing to meet me and representatives of the industry to discuss it?

[Lord Ashton of Hyde]

My Lords, I take the noble Baroness’s point seriously. We are of course concerned not to overregulate but to support the industry. However, we understand that the most important thing is the safety of all travellers, whether domestic or from further afield, and we will consider any proposal that results in a safer or enhanced experience for tourists in the UK. The guidelines for smaller businesses are currently being reviewed by the National Fire Chiefs Council, using input from a wide variety of accommodation providers, including Airbnb and the Bed and Breakfast Association. We have not yet come to a conclusion about a registration scheme, but the Minister for Arts, Heritage and Tourism would be delighted to meet the noble Baroness.

[Lord Clark of Windermere (Lab)]

Does the Minister accept that uncontrolled and unsuitable tourist development can threaten the natural beauty and environment of many areas, especially in national parks? Will he therefore write to the directors of the national parks, including the Lake District National Park, reminding them of such?

[Lord Ashton of Hyde]

I agree with the noble Lord but it is a question of balance. We want to encourage the tourism industry but a UNESCO world heritage site, for example, attracts an increased number of visitors. We generally promote and accept that but I understand the concerns about overtourism. We are working hard to ensure that we maintain a sustainable balance in all tourist areas.

[Baroness Gardner of Parkes (Con)]

My Lords, the Minister will be aware that there is now great abuse in the holiday letting sector, using premises that would normally be available for people in London to live in, and the Mayor of London has drawn attention to this. If tourism operators were regulated so that people had to prove that leases permitted them to let on a really short-term basis, would that not be helpful in controlling the completely unauthorised and illegal short lets that are doing such damage?

[Lord Ashton of Hyde]

I am aware of my noble friend’s interest in this matter—we know that she has referred to the issue of leases before. However, a lease is a contract and the remedies for breach of that contract are the same as for a breach of any other contract. There is a potential £20,000 fine for hosts who exceed the 90-day limit, and we think that is a strong disincentive.

[Lord Foster of Bath (LD)]

My Lords, further to the question from the noble Baroness, Lady Gardner, I am grateful that the Government have belatedly identified the loophole whereby some second-home owners in tourist destinations avoid paying council tax by declaring that their property is available for letting but then avoid paying business rates by making no effort to let it. Can we be assured that, following the end of the consultation next month, the Government will act rapidly to close this loophole and bring benefit to legitimate holiday letting businesses, to local councils and to local communities, and that they will do so in time for next summer’s season?

[Lord Ashton of Hyde]

I am informed by my noble friend sitting next to me, whose responsibility this is, that the department is looking at that precise question.

[Lord Judd (Lab)]

My Lords, I declare an interest as a former president of Friends of the Lake District and currently as a vice-president of the Campaign for National Parks. I assure the Minister that many of us feel that the parks should play a crucial role in tourist development—but tourist development to ensure that people have access to national parks. The Minister says that the Government are trying to maintain a balance between different interests, but will he agree that until recently it was specifically spelled out in legislation that scenic beauty and character were to take precedence in all decisions affecting development in national parks? They are not there as theme parks.

[Lord Ashton of Hyde]

I cannot completely agree with the noble Lord, although I sympathise with his general approach. For example, if a village or town in a national park needs mobile signal, a mast may be necessary. I am afraid that the natural environment and natural beauty do not always take precedence.

Sport: Drugs

Lord Ashton of Hyde Excerpts

Monday 3rd December 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, I too thank the noble Lord, Lord Addington, for introducing this debate on image and performance-enhancing drugs. I think that it has moved on beyond that to a certain extent, and the noble Lord, Lord Griffiths, ended up with a more generic view of children. I shall come back to some of those points.

This is a reasonably easy debate to answer because I agree with practically everything that all noble Lords have said. I hope that I shall be able to show not only that we agree with many of the points that have been made but that we are doing something about them. When I say we, I mean we as a Government, because UK Anti-Doping is an arm’s-length body of the DCMS, which is how we promote work in this area.

Like all noble Lords who have spoken, we recognise how important it is not only to protect the integrity of sport, which includes our commitment to keeping sport free from doping, but to protect people from the negative influences outside sport that could cause them harm. As the noble Lord, Lord Addington, mentioned, many young people who watch shows such as “Love Island” could be influenced by images of—how shall I put it?—apparent aesthetic perfection. These unrealistic portrayals of how the average healthy person is supposed to look could well be a reason for the increase in the use of image and performance-enhancing drugs. I will come back to “Love Island” in a minute.

The growth of social media has played a part in making young people feel under more pressure than ever about how they look and to perform at the highest level possible. UK Anti-Doping, an arm’s-length body of DCMS that is widely thought of as one of the world’s leading national anti-doping organisations, is working closely to combat this new trend. As has been said, the majority of anti-doping rule violations in the UK arise as a result of IPED use, particularly steroids. Of the 27 violations published by UKAD, 19 were related to IPEDs. Rugby union players were involved in the largest number of cases, which was as many as boxing and athletics combined.

Tackling the use and sale of IPEDs is part of the Home Office drug strategy, which states that it will take,

“coordinated action working with key partners … and independent experts to better understand the IPED using population”.

In relation to the points made by the noble Lord, Lord Addington, it goes on to say that it will,

“raise awareness of the risks of IPED use, including the spread of blood borne infections; support local areas to respond effectively; and take action as necessary to disrupt the supply of IPEDs and any associated criminality”.

In direct answer to the Question on the Order Paper from the noble Lord, Lord Addington, perhaps I can mention some of the measures being taken by UKAD to tackle the use of IPEDs through its various educational programmes. Earlier this year, DCMS led a tailored review of UKAD. One of the outcomes involved UKAD looking further into the health harms associated with the abuse of IPEDs. This was movingly mentioned by my noble friend Lord Moynihan, who gave a specific example. I am therefore delighted that we managed to secure additional funding of £6.1 million to help UKAD carry out the recommendations in the tailored review.

Education and promoting a culture of clean sport in youth sport is important, as was mentioned by the noble Lord, Lord Griffiths. UKAD had a presence at this year’s School Games, attending with national trainers to educate on the values of sport, anti-doping rules and responsibilities, and to give young athletes an insight into the testing process via a mock testing scenario. In accordance with UKAD’s clean games policy, all British athletes attending the Youth Olympic Games and the Commonwealth Youth Games undertake mandatory specific education to support them through the anti-doping procedures during major games. As the noble Lord, Lord Griffiths, mentioned, UKAD has other schemes for even younger audiences, such as Get Set for the Spirit of Sport, a classroom-based education syllabus for children aged 10 to 14, and Think Real, a more advanced scheme for 11 to 16 year-olds. I take the point made by the noble Lord, Lord Griffiths: the fact that we are having to provide such schemes for children of that age is itself worrying.

UKAD offers a free online accredited adviser course, which is promoted through the national governing bodies, to provide those working with junior and amateur athletes the training required to be able to support athletes and their coaches in their anti-doping responsibilities. For a broader audience, Clean Sport Week in May was a public awareness campaign with the objective to educate athletes on the risks of using sports nutrition supplements. As has been highlighted in the debate, uneducated use of supplements is prevalent in amateur sport and presents heightened risks to amateur athletes. The campaign also used social media to better engage younger athletes. It was a partnership with national governing bodies and sports bodies, including the Rugby Football Union.

Several noble Lords, including the noble Lord, Lord Addington, and my noble friend Lord Moynihan talked about gym culture. UKAD recently agreed a research project partnership with ukactive, aimed at giving a clearer understanding of image and performance-enhancing drug use in gyms and leisure centres.

We believe that responses and action from a range of stakeholders are required to make an impact. That is why the Government have set up a working group for agencies to come together for the co-ordination of a prevention strategy. The group has a strong cast list, including devolved public health agencies, the National Crime Agency, the Home Office, the police, the Department of Health and the Department for Education among others. A meeting was held in September, and included a session on sharing activities, initiatives and the views of partners on IPEDS to help gauge the next steps on how best to integrate information and education on the associated health harms and risks. The Home Office, Public Health Wales and the Scottish Government agreed to share data on IPED use, which UK Anti-Doping will analyse to give the working group a steer on how best to target users and potential users outside sport.

I realise that there is a surprising interest on the Liberal Democrat Benches in “Love Island”. Noble Lords will remember the Question of the noble Lord, Lord Storey, about smoking on “Love Island” after which it was banned in public places on the island, so it is true that highlighting the problems can have beneficial effects. But more seriously, because there is a valid point here, my answer to the noble Lord, Lord Addington, is the same as I gave to the noble Lord, Lord Storey. Editorial decisions such as drug testing on future contestants is up to the individual broadcaster. But broadcasters should be aware—I am sure they are—that they must adhere to Ofcom’s broadcasting code, which includes standards to ensure that under-18s are protected in relation to content dealing with drugs, smoking, solvents and alcohol. The illegal use and abuse of drugs,

“must not be condoned, encouraged or glamorised in other programmes likely to be widely seen, heard or accessed by under-eighteens”.

As the noble Lord, Lord Addington, said, UK Anti-Doping wrote in support of co-operation with the producers of these shows. I have seen a copy of the letter. I believe that noble Lords have not received a reply. Of course, is not for us to tell ITV how to answer letters, but it is a common courtesy to reply to a letter. I am sure that it will pay attention to that view.

My noble friend Lord Moynihan talked about UKAD’s clean sport accreditation, which I am aware of. I certainly agree with my noble friend that it is another example of positive work from UKAD in this area. It is for UKAD to decide where to allocate its funding, but I have taken on board my noble friend’s point and I will take it back. He also mentioned that we should ban imports. UK Border Force seized 5.2 million doses of anabolic steroids in 2016-17, an increase on the 4.9 million seized in the previous year. I mentioned the controlled drugs strategy published by the Home Office, which is reflective of the IPED challenge.

I nearly always agree with my noble friend, but we have talked about criminalisation before. The Sports Minister commissioned a review into the criminalisation of doping, which reported last year. Following the period of consultation, the review ultimately found that there was no compelling case to criminalise the act of doping in the UK. That reflected the strong consensus of those interviewed. But I accept and agree with his suggestion that it constitutes fraud on other competitors and probably sponsors, which may be a way forward.

My noble friend also asked whether I would agree that athletes should be involved in the process and in particular he mentioned Beckie Scott in WADA. I broadly support my noble friend’s comments regarding taking the views of athletes more seriously. Athletes know their sport and they know what is going on in many cases, and they should at the very least be part of the drive for clean sport. It is important that WADA is doing all that it can to restore faith in clean sport for both athletes and fans around the world.

The noble Lord, Lord Goddard of Stockport, mentioned role models. I also mentioned that in response to a Question from the noble Lord, Lord Campbell. I agree that role models are important and it is important for athletes to be encouraged to educate and inform young people about clean sport.

The noble Lord, Lord Griffiths, raised the question of children, not just in sport but in the Data Protection Act, gambling and advertising. In a way, it is beyond the scope of this debate and of this Minister to decide whether to look again at the Children Act, but I take his point. There are many areas of policy in which children are very important. I have another Question about children tomorrow, so I am sure that he will be in the Chamber for that.

I am grateful for all contributions. In outlining the Government’s actions, I hope that I have assured noble Lords that the Government will be working closely with all the necessary stakeholders to ensure that work is done to prevent, educate and, I hope, to protect.

Television Licences: Over 75s

Lord Ashton of Hyde Excerpts

Tuesday 27th November 2018 Lords Chamber

[Lord Stevenson of Balmacara]

To ask Her Majesty’s Government what steps they will take to maintain free television licences for those over the age of 75.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, we know that people across the country value television as a way to stay connected with the world. The Government have guaranteed free licences for those over 75 until 2020. We agreed with the BBC that responsibility for the concession will transfer to it in 2020. It confirmed that no decisions will be taken until the public have been fully consulted, but we have been clear on our expectation that the BBC will continue the concession.

[Lord Stevenson of Balmacara (Lab)]

My Lords, in its manifesto the Conservative Party actually promised free TV licences for the over-75s until 2022. However, the BBC is currently consulting on “what, if any” licence fee concession should be in place for older people from June 2020. The ONS classifies the BBC licence fee as a tax. Will the Minister point to the section in the royal charter that gives the BBC the power to levy taxes? He will recall that he said, on 29 March 2017:

“I reiterate that taxation is a matter for the elected Government”.—[Official Report, 29/3/17; col. 624.]


Does he still stand by that statement and will he join me in calling on the BBC to withdraw this disgraceful consultation?

[Lord Ashton of Hyde]

The BBC is doing exactly what it agreed when the settlement was put in place in 2015. We agreed at that time to provide a continuous licence fee, increasing by inflation, for five years. That had never been done before. We agreed to close the iPlayer loophole, which was what it wanted. In return, the BBC agreed to take on this concession. However, we have been clear that we expect the BBC to continue with this important concession. It was agreed by the BBC, Parliament and the Government.

[Lord Naseby (Con)]

Speaking as one who declares an interest as I was 82 last Sunday, should the director-general not look at his own house? For instance, why should he not look at the Peacock report, which proposed that the BBC should take advertisements in certain circumstances? After all, the BBC World Service takes them and—your Lordships may study this—there are about three minutes of propaganda for forthcoming programmes in every hour of BBC programmes, ad nauseam.

[Lord Ashton of Hyde]

The director-general of the BBC should be proud when he looks at himself in the mirror. The BBC is a national institution and the Government support it. We made a deal with it when the new charter was put in place. It is a £5 billion organisation and is more than capable of delivering on this agreement.

[Lord Foster of Bath (LD)]

My Lords, in this age of multichannel provision, our public service broadcasters—not least the BBC—are crucial in ensuring the provision of high-quality, British programming and news that we can rely on. Yet if the BBC does not go ahead with cutting the over-75 licence fee concession, its own content will be dramatically cut. Why should the BBC be forced to make a social policy decision that should be the remit of government? If the Government want the fee concession for over-75s protected then surely they should pay for it, not the BBC.

[Lord Ashton of Hyde]

The noble Lord talks about news but other public service broadcasters have the same duty to provide impartial news. I completely agree with him that what the BBC produces is a benefit, and it is a tribute to it. Other public service broadcasters have the same duty but they do not have a £3.8 billion head start from the taxpayer.

[Lord Harris of Haringey (Lab)]

My Lords, I am not sure that the Minister answered my noble friend’s question. If it was a manifesto commitment of the Conservative Party that the licence fee concession would continue until 2022, why have the Government subcontracted it to the BBC to break that manifesto commitment? Does he regard the licence fee as a tax and, if so, do the Government subcontract taxes to other people?

[Lord Ashton of Hyde]

I think that the noble Lord misunderstands the position. We made it absolutely clear to the BBC that we expect it to continue with this important concession, and in October the Secretary of State also made that clear to the House of Commons committee. However, the Digital Economy Act, which was passed before that, also made it clear that the Government retain the power to maintain the concession until 2020, which we will do, after which full responsibility will transfer to the BBC. Therefore, the settlement took place before the manifesto was written.

[Lord Lexden (Con)]

Would it not be good if the director-general of the BBC occasionally came to this House, of which he is a Member, to assist us in discussions of this kind?

[Lord Ashton of Hyde]

I am not sure that that would be helpful—for a number of reasons but mainly because it is very important that the BBC’s director-general, who is the editor-in-chief of the BBC, stays clear of politics as much as he can.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, I do not think I am alone in struggling to understand exactly what the Minister is telling us. Can he confirm that, when the settlement with the BBC was made, it was made clear to it by the Government that it would receive the five-year funding uplift on condition that it continued to maintain the free licence for over-75s? If that is the case, effectively the BBC’s licence fee income was cut. Can he confirm that that is the case? If it is not, presumably the BBC has the autonomy to do as it pleases and determine the outcome of the licence for the over-75s.

[Lord Ashton of Hyde]

The noble Baroness is quite right: the BBC has the autonomy to do as it pleases. Responsibility in this area was handed over to it in the Digital Economy Act with Parliament’s agreement. So far as the first part of her question is concerned, it is true that that was agreed in the settlement, and that is why the director-general of the BBC said:

“The government’s decision here to put the cost of the over-75s on us has been more than matched by the deal coming back for the BBC”.

Gambling Industry

Lord Ashton of Hyde Excerpts

Tuesday 27th November 2018 Lords Chamber

[The Lord Bishop of St Albans]

To ask Her Majesty’s Government what assessment they have made of the sufficiency of current industry contributions to efforts to reduce gambling-related harm.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, protecting vulnerable people from harm is central to gambling regulation. Operators must prevent underage gambling and train staff to intervene if a person is in difficulty. They must provide information on accessing help. The Gambling Commission also requires a financial contribution to research, education and treatment. Our review set out measures to strengthen protections across the industry, as well as a system for funding support. Donations this year are well on track to meet targets.

[The Lord Bishop of St Albans]

I thank the Minister for his reply and am glad that the Government will increase the remote gaming duty next year. But in a year in which Simon Stevens pointed out that problem gambling is costing the NHS between £260 million and £1.2 billion a year, and the gambling industry made a total return of £13.9 billion, is it not time that we moved away from the voluntary levy to a compulsory levy which significantly contributes to research and treatment?

[Lord Ashton of Hyde]

My Lords, there are a number of issues there. First, the figures quoted by the right reverend Prelate apply to the total cost of gambling, not just to the NHS. Of course, he did not mention the other side of the equation, which is the £2.86 billion in gambling taxes, apart from national insurance, corporation and income tax, which the gambling industry raises to help pay for the NHS. We recognise the need for reliable evidence on the wider impact of gambling-related harm, so work is under way to bill this. On the funding itself, for treatment, it is our priority to strengthen the voluntary system and build our understanding of what is needed. We have always said that we want to see operators step up, and I am glad to say that donations are on track to meet GambleAware’s targets. If the actions to improve the voluntary system do not bring results, we will consider other options, but we do not consider it necessary at this stage.

[Lord Forsyth of Drumlean (Con)]

My Lords, when I was responsible for gaming in the Home Office back in 1995, the rule was that firms could not do anything to stimulate demand. Casinos had a 48-hour membership and gambling companies were not even allowed to advertise in Yellow Pages. Given the disastrous consequences of this deregulation, with ads appearing on daytime television and in sport, is it not time that we reverted to when we had a workable and efficient policy?

[Lord Ashton of Hyde]

My Lords, for most people—the vast majority of people—gambling is not a problem; problem gambling is less than 1%. But I take my noble friend’s point that, for a small number of people, gambling can be a problem, and advertising could contribute to it. There is no reliable evidence on the extent to which it contributes, but we are putting tough new guidance into advertising to protect vulnerable people, including children. A large advertising public service campaign is being put out to promote responsible gambling. But advertising is one of the things we are considering, so I shall take my noble friend’s point on board.

[Lord Griffiths of Burry Port (Lab)]

My Lords, on previous occasions when we have looked at gambling and fixed-odds betting terminals were considered, there was a perceptible measure of support for the rather humble measures we proposed, which have now been accepted. I suspect that the mandatory rather than the voluntary levy would command equal support from all Benches. Although I am repeating the Question asked by the right reverend Prelate, I ask again: how long do we have to wait for studies in an industry that generates an enormous amount of money—so much so that one person can have a pay rise of £45 million? It would not be onerous to ask for a mandatory rather than a voluntary levy, which I am sure is the next step that as a House we should responsibly be advocating.

[Lord Ashton of Hyde]

The question is why you would want to introduce a mandatory levy. At the moment, GambleAware gets more than the money it asks for. It says it needs £10 million a year, and it is getting an extra £5 million from penalty payments, so it is getting more than it asks for. As I said, if we find that there is a need for more money and the voluntary system is not producing it, we will consider other options.

[Lord Foster of Bath (LD)]

My Lords, I think the House will be somewhat surprised that the noble Lord is suggesting that more money is not needed. There are 430,000 problem gamblers in this country, and currently only 2% of them are getting help. Does the Minister not find it odd that we have a compulsory horse-based levy that brings in £70 million to help horses, and we have a voluntary levy that brings in £10 million to help people?

[Lord Ashton of Hyde]

It is a mistake to say that the racing levy is there to help horses, although a small proportion of it is for veterinary reasons. It is there to help the racing industry and the people who work in it. By the way, a lot of people complain about that levy too. We have asked the industry to contribute, voluntarily, to research, education and treatment. We have said that if it does not produce enough, we will look at other options. Just because the industry has a large gross gambling yield—not profit but yield, which is different and before payment of expenses—that does not mean that we should, for the sake of it, increase the levy and have a compulsory one.

Centre for Data Ethics and Innovation

Lord Ashton of Hyde Excerpts

Wednesday 21st November 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, with the leave of the House, I shall now repeat a Statement made yesterday in the other place by my honourable friend the Minister for Digital and the Creative Industries. The Statement is as follows:

“Mr Speaker, with permission, I would like to make a statement on the Centre for Data Ethics and Innovation. The UK has a proud history of supporting the use of open data. Indeed, there has been a huge programme of work in recent years to make sure we are promoting the open and transparent use of data. The Government are in a privileged position, as we collect a vast quantity of high-quality data while delivering public services. As the UK moves rapidly towards a data-driven economy, we have an opportunity to improve decision-making in many areas.

The Government have already published over 44,000 datasets. This unprecedented openness has created many benefits. First, it has made the Government more accountable and transparent. Secondly, it can improve the effectiveness of public services. Thirdly, it has created the potential for new businesses to thrive. By making our data available to the public, we have been able to fuel businesses and applications that make life better and easier. All this has paid dividends.

We are now ranked joint first in the world on the open data barometer, an achievement of which we can justly be proud. While open data is something we must aspire to, we also need to use it in a safe and ethical manner. The rise of artificial intelligence-driven products and services have posed new questions that will impact on us all. What are the ethical implications of using technology to determine someone’s likelihood of reoffending?

Is it right to use a programme powered by AI to make hiring decisions? Can it ever be right to have an algorithm influence who should be saved in a car crash? These are no longer questions for science fiction but real questions that require clear and definite answers, where possible from policymakers. That is why we have established the Centre for Data Ethics and Innovation, because ethics and innovation are not mutually exclusive. Strong ethics can be a driver of innovation. It is our intention that the centre become a world-class advisory body to make sure that data and AI deliver the best possible outcomes for society, in support of their ethical and innovative use.

Following a consultation over the summer on the activities and work of the new centre, we are pleased to publish our response today. This is the first body of its kind to be established anywhere in the world and represents a landmark moment for data ethics in the UK and internationally. Throughout the consultation, respondents recognised the urgent need for the centre and there was widespread support for its objectives: to advise government on the necessary policy and regulatory action and to empower industry through the development of best practice.

In turn, we can build public trust in data-driven technologies and make the most of the opportunities they present for society. We have announced that Roger Taylor will chair the board. Roger has a background in consumer protection, founded Dr Foster—a healthcare data company—and is a passionate advocate for using data to improve lives. I know that he will do an excellent job. We have today announced the board members who will support Roger in this essential work. The board will include: Lord Winston, a world-renowned expert in fertility and genetics; Kriti Sharma, vice-president of AI at Sage and a leading global voice on data ethics; and Dame Patricia Hodgson, who was chair of Ofcom and brings a wealth of experience of regulatory affairs.

The board will bring together some of our greatest minds and their immense and varied experience to tackle these important issues. Data is the fuel of any digital economy, and trust in that data is fundamental. As a nation we have always been pioneers and advocates of transparency and freedom, and we will keep applying these values as we look at how we can make the most of the data that is multiplying in scale and sophistication.

The great challenge of the digital age is to ensure that data is used safely, ethically and, where possible, transparently. If we do that, we can help to power new technologies that will make life better and solve issues that are currently of grave concern. This is truly within our grasp and if we work together, we can make it happen.

I commend my Statement to the House”.

I follow the Statement by saying that I think the House will be pleased to know that, in addition to the noble Lord, Lord Winston, the board will include my noble friend Baroness Rock and the right reverend Prelate the Bishop of Oxford, who were members of the House of Lords Select Committee on Artificial Intelligence, chaired by the noble Lord, Lord Clement-Jones.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I too thank the Minister for repeating the Statement. He was missed in the debate on Monday. I have had the benefit of reading the Government’s response to the consultation on the Centre for Data Ethics and Innovation. I share the enthusiasm for the centre’s creation, as did the Select Committee, and, now, for the clarification of the centre’s role, which will be very important in ensuring public trust in artificial intelligence. I am also enthusiastic about the appointments—described, as the noble Lord, Lord Stevenson, said, as “stellar” in the Government’s own press release. In particular, I congratulate Members of this House and especially the noble Baroness, Lady Rock, and the right reverend Prelate the Bishop of Oxford, who contributed so much to our AI Select Committee. I am sure that both will keep the flame of our conclusions alive. I am delighted that we will also see a full strategy for the centre emerging early next year.

I too have a few questions for the Minister and I suspect that, in view of the number asked by me and by the noble Lord, Lord Stevenson, he will much prefer to write. Essentially, many of them relate to the relations between the very crowded landscape of regulatory bodies and the government departments involved.

Of course¸ the centre is an interim body. It will eventually be statutory but, as an independent body, where will the accountability lie? To which government department or body will it be accountable? Will it produce its own ethics framework for adoption across a wide range of sectors? Will it advocate such a framework internationally, and through what channels and institutions? Who will advise the Department of Health and Social Care and the NHS on the use of health data in AI applications? Will it be the centre or the ICO, or indeed both? Will the study of bias, which has been announced by the centre, explore the development of audit mechanisms to identify and minimise bias in algorithms?

How will the centre carry out its function of advising the private sector on best practice, such as ethics codes and advisory boards? What links will there be with the Competition and Markets Authority over the question of data monopolies, which I know the Government and the CMA are both conscious of? In their consideration of data trust, will the government Office for Artificial Intelligence, which I see will be the responsible body, also look at the benefits of and incentives for hubs of all things? These are beginning to emerge as a very important way of protecting private data.

What links will there be with other government departments in giving advice on the application of AI and the use of datasets? The noble Lord, Lord Stevenson, referred to lethal autonomous weapons, which emerged as a major issue in our debate on Monday. What kind of regular contact will there be with government departments—in particular, with the Ministry of Defence? One of the big concerns of the Select Committee was: what formal mechanisms for co-ordinating policy and action between the Office for Artificial Intelligence, the AI Council, the Centre for Data Ethics and Innovation and the ICO will there be? That needs to be resolved.

Finally, the centre will have a major role in all the above in its new studies of bias and micro-targeting, and therefore the big question is: will it be adequately resourced? What will its budget be? In the debate on Monday, I said that we need to ensure that we maintain the momentum in developing our national strategy, and this requires government to will the means.

[Lord Ashton of Hyde]

I am tempted to say that I will write, but I will try to answer some of the questions, and I will write regarding some that I do not get around to. I was in at the beginning of the debate on AI and I listened to the noble Lord’s speech.

[Lord Clement-Jones]

My Lords, that is all that he needed to listen to.

[Lord Ashton of Hyde]

Not everyone would agree with that, but I did indeed listen to it. I have read that AI is a joint responsibility with BEIS, and my noble friend Lord Henley coped more than adequately, so I do not think that I really was missed.

There was a great deal of support for this innovation—the centre—both in the response to the consultation and, as the noble Lord, Lord Stevenson, said, in proceedings on the then Data Protection Bill, so I am grateful for that today, but I accept the very reasonable questions. On the centre’s independence as it stands now and its statutory establishment, I say that we have deliberately set this up as an advisory body so that it can consider some of the difficult issues that noble Lords have raised. Policy is the Government’s responsibility, so there should not be any confusion about who is held accountable for policy—and it is not the Centre for Data Ethics and Innovation. When this has been established, when we have seen how it has worked and when we have addressed the questions of the crowded space that both noble Lords mentioned, it is our intention to put this on a statutory basis. Then we will see how it has worked in practice. When it comes to putting it on a statutory basis, I have no doubt that there will be lots of back and forth in Committee and things like that on the exact definitions and its exact role.

There are some differences from the Human Fertilisation and Embryology Authority, although of course that was a particularly successful body. One of the main differences was that a lot of those things were considered in advance of the science, if you like, and before the science was put into place. With AI, it is here and now and operating, so we do not have a chance to sit back, think about it in theory and then come up with legislation or regulation. We are dealing with a moving target, so we want to get things going.

As far as I am aware—I will check and write to the noble Lord, Lord Stevenson—the centre has no specific powers to demand information. That is, of course, something that we can look at when it comes to being on a statutory basis.

I am sorry that the application for membership by the noble Lord, Lord Stevenson, was not accepted. There can be only one reason: he spends so much time on the Front Bench that he would not have time, because we expect the directors to spend two to three days a month attending this, so it is a very large work commitment.

As noble Lords will know, the work plan includes two initial projects, which were announced in last year’s Budget: micro-targeting and algorithm bias. We expect the centre, in discussion with the Secretary of State, to come up with a work plan by spring 2019. As the noble Lord, Lord Stevenson, mentioned, there is a tension, if you like, between ethics and innovation, but we are very keen that it consider both because we have to be aware of the potential for innovation, which is constrained in some cases. We would not want a situation where the opportunities for AI for this country are avoided. As the report by the noble Lord, Lord Clement-Jones, made clear, there are tremendous opportunities in this sector. We are aware of the tension, but it is a good tension for the centre to consider.

Both noble Lords talked about the crowded space in this area. We expect the centre to produce memorandums of understanding to outline how it relates to bodies such as the AI Council, which has a slightly different focus and is more about implementation of the AI sector deal than considering the ethics of artificial intelligence. We understand that they need to work together and expect the centre to come back on that.

The noble Lord, Lord Clement-Jones, asked about accountability. The centre will be accountable to the Secretary of State for the DCMS. That is clear. He will agree its work plan. Of course, in terms of independence, once he has established that work plan, what the centre says will not be up to him, so there is independence there. We included in our response that the Government will be expected to reply within six months, so there is a time limit on that. It will apply to all government departments, not just the DCMS. The Ministry of Defence and the department of health have obvious issues and the centre can provide advice to them as well.

The noble Lord, Lord Clement-Jones, asked whether the centre, when it considers bias, would include audit mechanisms. It absolutely might. It is not really for us to say exactly what the centre will consider. In fact, that would be contrary to its independence, having been given the subject to think about. In our response we said some of the things that might be considered, such as audit mechanisms.

There is an obvious issue about competition, which the House of Lords Select Committee mentioned. Work is going on. The Chancellor commissioned the Furman review to look at that and we expect the centre to come up with a discussion on how it will work with the Competition and Markets Authority, but obviously competition is mainly to do with the Competitions and Markets Authority.

At the moment, the body is resourced by the DCMS. In the 2017 Budget, it was provided with £9 million in funding over three years. We expect that to be sufficient but, clearly, we will have to provide adequate resources to do an adequate job.

[Lord Harries of Pentregarth (CB)]

I thank the Minister for the Statement and his responses. I am delighted that one of my successors as Bishop of Oxford has been appointed to the centre’s board. I know that with his experience and background he will make a very valuable contribution to it.

Is there an academic moral philosopher on the board? I ask as a former member of the Nuffield Council on Bioethics and the HFEA. It was always thought valuable, particularly with the Nuffield Council on Bioethics, to have a philosopher or two on board. It is not that they will come up with a better answer than anybody else—their judgment is neither better nor worse than anybody else’s—but an academic philosopher can tease out unexamined assumptions. So many of these agreements and disagreements on ethics are about the assumptions that need to be teased out and looked at. I have not had a chance to look at the document yet, I am afraid, but perhaps I could ask that question.

[Lord Ashton of Hyde]

I am glad to say that there will be. Professor Luciano Floridi is Professor of Philosophy and Ethics of Information at the University of Oxford—so another Oxford man.

[Lord Maxton (Lab)]

My Lords, is it not correct that the centre’s name is the wrong way round? It ought to be the advisory committee on digital innovation and ethics, because the innovation will drive the ethics rather than the other way round.

[Lord Ashton of Hyde]

The board of the centre will be able to cope with whichever way round the wording is. It will deal with the balance and the tensions between ethics and innovation—and indeed innovation and ethics.

[Baroness O’Neill of Bengarve (CB)]

My Lords, yesterday evening the British-American Parliamentary Group and Ditchley met to discuss these topics. It was an interesting meeting, but it did reveal how readily innovation drives ethics. I say this as an academic philosopher, and it is quite important. The innovation questions are of great importance, but they are not the only questions, and I hope that steps will be taken to ensure that there is suitable rigour in the analysis of the ethical issues. The debate is full of pitfalls and inadequacies, including phrases such as “communication ethics” and “data ethics”, which ultimately mean nothing. Ethics is about what you do: it is not about data and communication. So I hope that there will be room for that sort of rigour on this advisory—and ultimately statutory—body.

[Lord Ashton of Hyde]

I completely agree with the noble Baroness. In dealing with modern technology, we often forget the very important point she makes. Ethics is about how you live your life and deal with things in a way that has a moral basis. I absolutely accept that, in dealing with modern technology and especially things such as AI, ethics is a very important component. That is precisely why they have also included not just technical people but parliamentarians and professional philosophers, to consider and to make sure that those aspects are given sufficient weight.

Social Media Services

Lord Ashton of Hyde Excerpts

Monday 12th November 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, that was brief but fun. As the noble Lord, Lord Stevenson, said, it is nice to have a sort of flashback to the many interesting debates we have had. Although not many noble Lords are in the Chamber, these are important issues and in a way I feel that I could answer the points made by all noble Lords by saying, “This is very important. I agree that the status quo is not acceptable. We understand that. The points raised will be actively considered. We have not made any final decisions and we will reach an answer in the White Paper”. I could then sit down, but I shall try to be a bit more reassuring and helpful than that.

The temptation is always to try to get the Minister to commit to things that he should not. However, the fact is that the White Paper is not finished and we have not made decisions in a lot of these cases. We are actively considering everything that has been brought up in this debate and we are certainly ready and willing to talk to all noble Lords. The noble Baroness, Lady Kidron, will have heard the Minister give evidence at the session of the Lords Communications Committee earlier today. She talked about these issues, and in a sense the noble Baroness is probably ahead of me. However, we are very happy to continue talking.

As I say, we will be publishing the White Paper on online harms this winter. Although the noble Lord, Lord Stevenson, said generously that perhaps we should suggest the spring, we mean the winter—I think we all know what winter means. That is the current plan and it will be a precursor to legislation if it is required. We will set out our plans to ensure that social media platforms take more responsibility for online harms, which is what we are all aiming for. It is a complex area and we are considering carefully all the options, including but not limited to a statutory duty of care and a regulator.

However, we have to bear in mind that the internet offers huge benefits. We sometimes spend our lives talking about the problems and the harms, but it is important to note that not only here in this country but in developing countries the internet makes a tremendous difference to growing economies, making us more productive and raising living standards. In many cases it enhances the quality of life. It is also true that the industry has taken significant steps with existing industry-led initiatives, in particular through the application of technology. We are not saying that it is perfect, which is why we are producing the White Paper. We know that in some cases legislation may be needed, but there are technological solutions and it would be wrong not to acknowledge that.

In part because of the influence of noble Lords and parliamentarians more widely, there has been a movement towards a “Think safety first” approach, which has been mentioned. In that, the safety considerations are embedded into the product development. For example, Facebook, Instagram and Apple have all recently brought in tools for users to monitor and limit their screen time. That shows the clear role that technology has to play in tackling online harms. However, we agree that more can be done and we will set out our plans in the White Paper to support the development and adoption of safety technologies, and more importantly to empower and educate users.

We have already said that as a Government we will bring forward legislation if that is necessary. We have pointed to a social media code of practice and transparency reporting as areas where we think that legislative action may be required. We are also exploring whether additional measures are needed. We know that there is public concern about a broad range of online activity ranging from terrorism to child sexual exploitation, along with children’s access to inappropriate but legal content. Of course, the boundary between the legal and the illegal is not always easy to define. We will set out a clear and coherent framework to tackle these issues in a proportionate and appropriate manner, but which importantly will also support the continued growth and innovation of the digital economy. We also do not want to stifle legitimate free speech or prevent innovation, where the UK is a significant global leader.

The White Paper will also address public concerns and ensure continued confidence in the digital economy. We know from a joint report by Ofcom and the ICO that eight out of 10 internet users have concerns about going online. Noble Lords will be aware that the Communications Committee, to which I have just referred, is undertaking an inquiry in this area and we look forward to its conclusions. We support and accept the range and openness of the debate taking place. A great deal of research is being done and we are engaging with industry as well. We have read a lot of the proposals which have been put forward but we are also engaging face to face with stakeholders. For example, the Home Secretary was in Silicon Valley just last week talking to tech companies with particular reference to child sexual exploitation as well as looking at the role of advertising, which was mentioned by the noble Baroness.

The problem with the duty of care model is that while in some cases it seems to be an easy and good answer to the problem, it is not as straightforward as it sounds and needs careful thinking through. We are not against it. We are certainly considering the different models of duty of care because it does not have a fixed meaning in English law. There are different areas, such as health and safety, environmental protection and common law; we are looking carefully at all those. Of course, that includes the model mentioned by the noble Lord, Lord Stevenson, and others, which was put forward recently by Professor Woods and Mr Perrin at the Carnegie Trust. In fact, their proposal applies only to social media companies and focuses on the processes put in place by companies to protect users. We are certainly looking at that and have not written it off in any way.

That is not the only regulatory model that might be appropriate to tackle online harms. We are looking more broadly at a range of options and examples from a wide range of sectors. I cannot be more specific than that at the moment except to say that we are keeping an open mind. We are considering the whole spectrum, from self-regulation on the one hand to a duty of care, a regulator and prescriptive statutory regulation on the other; there are several ways in which that might be put in place. I acknowledge the point made by noble Lords that a duty of care has the benefit of an element of future-proofing, which is another thing we have to consider rather than specific statutory regulation.

The other factor to bear in mind is the international aspect of this. We are working closely with like-minded countries as we design solutions. We are among the leading countries in trying to tackle this issue. Obviously, we have looked at and are considering measures such as the e-safety commissioner in Australia, an ombudsman-like model that can issue fines. The possible problem with an ombudsman is that it is a complaints-based solution and things may need to be done quicker than that; we are looking at that. Similarly, the noble Baroness, Lady Grender, talked about the German rules on taking down illegal content. We think that there are possible conflicts there with EU law but, again, we have not written that off and we are studying it carefully.

I want to take up a number of specific questions. I will allow myself a little more time—not too much longer, do not worry—because we have a whole hour and there are only four of us. The noble Lord, Lord Stevenson, asked about who is in the lead on this. The publication will be a joint effort between the DCMS and the Home Office. Despite what the noble Lord said about the lack of success, the Data Protection Act, which was a joint effort with the DCMS, worked well. Obviously, the wide range of harms that we are looking at are relevant to the Home Office and the DCMS; we are also working closely with other departments.

The digital charter is part of a rolling programme of work. The online harms White Paper is part of the digital charter, which we will continue to update and which includes things such as the Centre for Data Ethics and Innovation Consultation, our age-verification work—that will come before your Lordships’ House very soon—and the White Paper itself.

Noble Lords have asked to whom companies owe a duty or responsibility. We think that platforms should be responsible for protecting their users from experiencing harms through their services. However, defining that in an online environment is complex. We are thinking carefully about the problem of how this might look in an online environment where half a billion people, say, are online, if we say that there is a responsibility in that environment. We have to look at the theory behind this as well as the practicalities. We are considering that.

How will we enforce compliance with whatever regulations we propose? We think that we will need a proportionate suite of graduated, effective sanctions, with the aim of securing future compliance and remedying the wrongs. That comes with a variety of challenges, such as international enforcement. We are considering regulation in other areas, including with international partners in forums such as the G20 and the OECD.

On the companies that are in the scope of the proposed regulatory framework, we are looking methodically at the platforms that will be affected and on which platform users are exposed to the greatest risk. We accept that looking at a risk-based approach would be sensible. That will include, but may not be limited to, social media companies because we want this to be future-proofed and not limited to today’s business models. We are exploring how we might develop a future-proofed approach. We will seek to take a proportionate approach depending on the size of businesses and the risks associated with their activities.

I was asked whether we are looking beyond platforms and about operating systems. We need to influence the development of new and emerging platforms. As part of the design process for any new website or app, all companies should actively ensure that they build a safe experience for their customers. We will promote a “think safety first” approach for all companies and in the forthcoming White Paper set out how we will work with industry to ensure that start-ups, SMEs and other companies have the practical tools and guidance they need.

As for harmonisation of legislation, we have said—and noble Lords have repeated it—that what is illegal offline should be illegal online. As has been mentioned, the Law Commission’s recent review of abusive and offensive online communications reported on the parity between legislation offline and online. It concluded that,

“for the most part … abusive online communications are, at least theoretically, criminalised to the same or even a greater degree than equivalent offline offending … Practical and cultural barriers mean that not all harmful online conduct is pursued in terms of criminal law enforcement to the same extent that it might be in an offline context”.

Therefore we welcome the second phase of the Law Commission’s review.

The scope of online harms in the White Paper has not been finally settled, but we are looking to address the full range of harms, from the clearly defined illegal to the legal but harmful. Boundaries between such harms are sometimes hard to define. We are taking a pragmatic approach. There is clearly a place for technology in educational efforts as well as legislation. We will set out a clear and coherent framework that tackles that.

On what I said on the previous Bill about the Secretary of State’s commitments on parity, safety by design, accountability and enforcement, I see no reason to detract from that, albeit we have a new Secretary of State. I have no reason to believe that anything has changed and we will certainly look at those questions.

I repeat to noble Lords that we are trying to keep a very open mind; it is not settled. We welcome all input from noble Lords, particularly those here tonight. We look forward to the Communications Committee’s report on safety on the internet.

Our approach will be guided by some key considerations, including the responsibilities that tech companies should have to prevent and protect against online harms, the importance of innovation to the digital sector, upholding a free and open internet, and the international scale of this challenge. We will set out the details of our approach this winter.

House adjourned at 8.27 pm.