Public Order Bill (Third sitting)
Tuesday 14th June 2022
(2 years, 4 months ago)
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The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Chair
A few preliminary reminders for the Committee: please turn off electronic devices, or switch them to silent. No food or drink is permitted during sittings except for the water provided. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk, or passed their written notes to Hansard colleagues.
We now begin line-by-line consideration of the Bill. The selection and grouping list is available in the room; it shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or similar issues. Decisions on amendments are taken not in the order in which they are debated, but in the order on which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on an amendment are taken when we come to the clause to which the amendment relates. Decisions on new clauses will be taken once we have completed consideration of the clauses of the Bill. Members wishing to press a grouped amendment or new clause to a Division should indicate that when speaking to it.
Clause 1
Offence of locking on
Wendy Chamberlain (North East Fife) (LD)
I beg to move amendment 29, in clause 1, page 1, line 10, leave out
“or is capable of causing”.
This would limit the offence to an act that causes serious disruption.
The Chair
With this it will be convenient to discuss the following:
Amendment 46, in clause 1, page 1, line 10, leave out from “disruption” to the end of line 12.
Amendment 30, in clause 1, page 1, line 15, leave out
“or are reckless as to whether it will have such a consequence”.
This would limit the new offence to ensure that there must be intent to cause serious disruption.
Wendy Chamberlain
As the Minister and others may be aware, I am a former police officer; I served with the Lothian and Borders police between 1999 and 2011. I am working with my colleague Lord Paddick, who is in the other place; he is also a former police officer, and considered the provisions of the Bill that were put in the Police, Crime, Sentencing and Courts Bill in the other place, so we have some experience of police debates.
The Chair
Order. I am sorry; none of the mics is working, so we will have to suspend the sitting for a few minutes.
Wendy Chamberlain
As this is my first Bill Committee, I was worried that I had already made a mistake. I am glad to hear that the issue causing us difficulty was beyond my purview.
As I say, I have policed events and protests; Lord Paddick has been the commander at them. I highlight the evidence that we heard last week from police officers, particularly Chief Superintendent Phil Dolby, who leads on the management of such events. What really came through for me in the evidence was the need for ongoing dialogue and agreement with those exercising their democratic right to protest. I have concerns that the legislation will hinder that dialogue. As former Chief Constable Peter Fahy said, we do not live in France or any other country with a paramilitary aspect to their policing. We do not want any legislation to risk our approach. I have concerns about that balance, about unnecessarily criminalising protesters, and about bringing into the scope of the legislation people who have nothing to do with a protest.
Chief Constable Chris Noble observed in his opening remarks last week that the vast majority of protest activity is non-contentious. I urge us all to remember that in our deliberations. The provisions in the Bill were introduced into the Police, Crime, Sentencing Courts Act 2022 when it was in the Lords last Session, and they were resoundingly opposed in the other place, so I am surprised that the Government are pretty much reintroducing the same measures and are not taking the experience in the Lords into account. I thank Lord Paddick, who spoke strongly against the provisions; the Chair may find that some of my remarks bear a resemblance to his.
Clause 1 will criminalise people who lock on even if there is no disruption caused, as long as there is potential for disruption. Amendment 29 would remove the words
“or is capable of causing”
which are incredibly broad and uncertain. If the Government are determined to create these additional offences—it appears that they are, given that we are back considering this Bill—the law that introduces them must be legal. These provisions are vague, undefined and open to subjective interpretation, as we will see in the law courts if the Bill as drafted passes into law.
The National Police Chiefs’ Council said in evidence that it is concerned about the phrasing, as it will be open to interpretation, and the onus will be on officers to decide the meaning. As I said in our evidence session last week, the first officer to attend a protest, whether they be a police constable, sergeant or inspector, is in charge and takes control and command—they lead. No one officer has the overall picture necessary to make such decisions, and I argue that this measure places the onus on individual officers to decide its meaning. Not only are the police unable to enforce such restrictions, but, as we have heard from organisations such as Amnesty International, the lack of certainty and broad scope makes the conduct in question illegal from the outset. That is not what we should intend to do in legislation. The provision severely curtails the fundamental human right to protest peacefully and will further damage our global reputation.
The clause potentially criminalises all sorts of protests. What about a counter-demonstration to stop holocaust deniers marching past a synagogue? If protesters linked arms to protect the synagogue, they could be caught by this clause. There is no definition of “capable of causing”. We do not criminalise behaviour that might cause crime. We prosecute people who have caused crimes.
The Minister for Crime and Policing (Kit Malthouse)
Amendments 29, 46 and 30 target clause 1, which introduces a new offence of locking on. Locking on is an extremely disruptive and often dangerous tactic that can place both protesters and police at extreme risk. It is unacceptable that protesters can use bike locks, glue and an imaginative range of other equipment to inflict disruption on businesses and the public, and the testimony we heard in the oral evidence sessions highlights the need for the Government to act.
Amendment 29 would raise the threshold of the offence by requiring a person’s lock-on to have caused, rather than be capable of causing, serious disruption before they were liable for the offence. That would not account for situations where, for example, a person locks on with intent to cause serious disruption but is quickly removed by the police before serious disruption can be inflicted. If there is to be a deterrent effect, it is important that those who commit acts that could cause serious disruption face appropriate penalties. I do not see the value of accepting the amendment.
Amendment 46 would inadvertently lower the threshold for serious disruption; it would remove the statement that serious disruption is caused by a lock-on only if the disruption applies to two or more individuals or the activities of an organisation. It is entirely reasonable to assume that if someone commits a lock-on that causes serious disruption to one or more person, they may be arrested and charged with the offence. I am not sure the hon. Member had the intention of lowering the threshold of application of this clause.
Alex Cunningham (Stockton North) (Lab)
I am looking at subsection (2) which says:
“It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act mentioned in paragraph (a) of that subsection.”
Will the Minister please explain what is meant by that, and who might be caught by the Act? Who would actually have a reasonable excuse? Can he give us an example?
Kit Malthouse
The notion of reasonable excuse is well defined in our common law and is adjudged by courts daily, particularly in protest situations. We have seen that over the last few months. Although I assume that the hon. Gentleman seeks some precision in definition, “reasonable excuse” is for the courts to define, and they do so regularly.
Amendment 30 would raise the threshold for the offence of locking on by requiring individuals to have intended their lock-on to cause disruption, rather than having been reckless about that. Recklessness is, however, also a very well understood term in criminal law, and it applies to numerous criminal offences. I do not see the value in removing it from this clause, not least because, as I am sure the hon. Member for North East Fife knows, it is a well-known term in Scottish law and is often used in Scottish courts to adjudge an offence. For the reasons I have set out, I ask hon. Members not to press the amendments.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to serve under your chairmanship, Mr Dowd. I thank the hon. Member for North East Fife for tabling her amendments, which we are happy to support. She spoke clearly and eloquently about them, and I echo some of her arguments. We agree with the narrowing of scope proposed in amendment 29, which would mean that locking on must cause disruption, rather than just being capable of doing so. The Minister has already spoken, but I think there is an issue with the wording, and with defining an act as being capable of causing disruption. The definition is so broad and imprecise that it could include almost anything.
Kit Malthouse
On Cromwell Road in west London, a lorry pulled up and scaffolding was quickly brought out and semi-erected, but as Territorial Support Group 5 happened to be on the scene, the scaffolding was quickly removed. That offence was capable of causing significant disruption, but because of swift police action, it did not. Does the hon. Lady believe that an offence was committed in that case, and that the sentence should deter those people from trying again?
Sarah Jones
It was jolly good that the police were there and able to deal with that case. We do not need new legislation to enable them to do their job, which they did swiftly and well.
We will come on in more detail to the fundamental flaws in the Bill, but our underlying argument is that it will not deal with the small number of repeat offenders who come back time and again. It may, however, criminalise people who protest peacefully. Whatever the Government intended, that is not necessarily how the provision will be interpreted. That is why laws need to be drafted very clearly. As the former Prime Minister has said on several occasions, she might have thought that she would interpret her powers very sensibly when she was Home Secretary, but who knows who will come next? If we do not have sensible people making decisions, we do not necessarily want them to be able to interpret these very broad powers, so the law needs to be precise.
The hon. Member for North East Fife referenced Lord Paddick, who made the point that if the locking on
“were on a different road or at a different time, it would be capable of causing serious disruption. But if it is 3 am on a Sunday, is that still capable of causing serious disruption?”—[Official Report, House of Lords, insert date in form 1 January 2057; Vol. 816, c. 980.]
That is a good and interesting point. We are happy to support the amendments put forward by the hon. Member for North East Fife.
Amendment 46 addresses another of our concerns. All those who gave evidence last week discussed the scale of the disruption caused by protest. We were all horrified by the astronomical costs involved, such as the £126 million that High Speed 2 spent on protester removal, which might rise to £200 million next year. However, under clause 1, the offence is triggered where a lock-on causes disruption to just two people. There is clearly a huge difference between the enormous scale of disruption caused to HS2, or by lock-ons on the motorway, and disruption caused to two people. They are simply not the same thing, and it is problematic that the clause appears to conflate them.
Wendy Chamberlain
The hon. Lady has referred to the astronomical costs. The Minister said that it is for the courts to make some of the decisions around the wideness of the scope. The reality is that if we arrest more people for these offences and they go through the criminal justice system, those costs will increase. By having such a wide scope, we are making the situation more expensive in the longer term.
Sarah Jones
Sadly, the Government are good at wasting taxpayer money. We have seen lots of cases of the profligate use of funds; let us hope this will not be a similar case.
Kit Malthouse
To be clear, all the people who currently lock on are arrested and charged with other offences, including in Scotland. It is not necessarily the case that more people would be arrested. In fact, given the specificity of the offence, and as we hope that the sentence that we attach to it will prove a deterrent, in time fewer people will commit this offence and cause serious disruption; there will therefore be fewer arrests. Is that not the point of the laws we pass in this place?
Sarah Jones
The point is that the offence would not be a deterrent, given that there are plenty of other things that people are charged with, and imprisoned and fined for. It would not be a deterrent to those difficult people who come back time and again, as they can already be arrested, charged and sent to prison for a multitude of existing offences.
Alex Cunningham
My hon. Friend is correct. I was surprised to hear the Minister say, “It’s okay: we can already charge these people. There are plenty of offences that they can be charged with and fined for.” Why the new legislation, then? I do not quite understand the Minister.
Sarah Jones
I absolutely agree. In addition—this is most peculiar—a whole raft of legislation on protest has been passed by this House but not yet implemented. We are layering legislation on top of a whole raft of legislation that has passed but not yet implemented, before we even know whether the previous legislation has worked.
Amendment 46 aims to amend clause 1 so that it actually deals with the scale of the disruption that our witnesses were concerned with. In doing so, it will also address the concerns of the public. I do not think that the public are much interested in protests that cause disruption to just two people. That is not so egregious, and certainly not egregious enough to risk seriously harming the right to protest. The National Police Chiefs’ Council agrees; it states in its written evidence that:
“we believe using the definition of ‘serious disruption to the community’ may be preferable to ‘two or more people, or an organisation’, as the former is more widely understood and will allow more effective application consistent with human rights legislation.”
Amendment 30, tabled by the hon. Member for North East Fife, would
“limit the new offence to ensure that there must be intent to cause serious disruption.”
As I have mentioned, one of our key concerns with this clause is how widely drawn it is. With such broad wording, it is fair to ask the police to determine whether there is genuine intent to cause serious disruption. As has been pointed out by Liberty and other organisations, the Bill already carries the danger of criminalising peaceful protest, and has the potential to sweep up many peaceful protesters. Recklessness is not a good measure in the law. How should the police try to prove that an individual has been particularly reckless? Recklessness is not a good measure in the law. Can the Minister say what “recklessness” is? Is it defined by a lack or an abundance of action? What would his definition be?
Wendy Chamberlain
It is obvious that on this side of the Committee we are keen to ensure that there is definition to what the Government are proposing so that people do not fall inadvertently within the scope of this. I agree with the shadow Minister, and we heard this in evidence last week, that those who see locking on or committing such offences as a badge of honour will not be deterred by what the Government propose. Although I do not intend to press either amendment 29 or 30 to a vote, it has been important for us to understand what the Government propose and the fact that they are continuing to press ahead with a wide scope for the clause. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Jones
I know it is early in the morning to test the will of the Committee, but I wish to move the amendment formally, in part because the NPCC has concerns about the wording, as do many other organisations.
Amendment proposed: 46, in clause 1, page 1, line 10, leave out from “disruption” to the end of line 12.—(Sarah Jones.)
Question put, That the amendment be made.
Wendy Chamberlain
I beg to move amendment 31, clause 1, page 1, line 21, after “fine” insert
“not exceeding level 2 on the standard scale”.
A person convicted of an offence of “locking on” may be subjected to a fine. Under this clause there is no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.
The Bill allows for unlimited fines but the amendment would limit the fine for the offence to level 2, £500. The amendment belongs with my amendments 34 and 37, because as currently drafted the offences of locking on, being equipped to lock on or obstructing major transport works can carry an unlimited fine.
To divert slightly, reference was twice made during last week’s evidence sessions—and this morning— to Scots law, although I appreciate that the Bill relates to England and Wales. Last week, the Minister referred to the crime of malicious mischief in Scotland, which carries an unlimited fine or prison sentence. That took me right back to my basic training days at the Scottish Police College—is it vandalism or malicious mischief? It is a crime at common law, and that is why it carries unlimited fines or imprisonment. The Scots Advocate, Andrew Crosbie, a member of the Faculty of Advocates in Scotland, describes common law offences on his crime.scot blog as follows:
“I tend to summarise common law cases…they’re crimes because they just are.”
You know us Scots, we are blunt and to the point. But common law crimes such as assault, theft, murder, fraud and breach of the peace were not created by Parliament, and as such are not defined in legislation. In fact, David Hume, whose statue stands outside the High Court of Justiciary in Edinburgh, pooled all the High Court decisions to produce the authoritative account of the state of Scots criminal law in the 1840s. All of those offences could result in unlimited fines or prison time, and I have lost count of the number of times that I charged someone with the breach of the peace, because it is a catch-all piece of legislation. The reality is that those offences do not carry those sanctions because sentencing decisions are usually made within a scale and scope, dependent on the seriousness of the offence and previous case law. I would argue therefore that, contrary to the Minister’s argument last week, it is not as straightforward as it first looks that Scots law is more draconian; it is about the scope of previous stated cases and decisions.
Malicious mischief consists of the wilful, wanton and malicious destruction of, or damage to, the property of other persons. There must be malice, either actual or inferred, on the part of the perpetrator, as destruction or damage caused by accident or under a reasonable belief of right, is not criminal. One main difference between that offence and vandalism is that the latter must result in damage to actual property, whereas under malicious mischief financial damage brought about by a criminal act would suffice. I hope Members will note why malicious mischief might be an appropriate offence in Scotland for some of matters that we are considering in the Bill.
From a police officer’s perspective, if property is damaged and the value of the damage is high, it may be more relevant to label the act as a common law crime other than vandalism. That is certainly how I recall it from my police college days—if it was high value, or involved cruelty to animals, it was malicious mischief, otherwise we preferred statutory vandalism.
I wanted to touch on that because in a democracy punishments are made to be proportionate to the crimes. Is it proportionate to fine someone potentially tens of thousands of pounds for a single act of protest? My simple proposal is that the fine should be limited to level 2 on the standard scale at £500. I am happy to hear from the Government should they have other proposals for a limit, but I argue that it cannot and should not be limitless.
Sarah Jones
The intent behind the amendment—to prove whether an unlimited fine is proportionate or not—is sensible. It is difficult to find examples of offences that have resulted in huge fines, and I wonder whether the Minister could provide some examples of the scale of fines for the offence set down in clause 1. I know that the coalition Government introduced an unlimited fine in 2015 under the terms of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The explanatory notes to those regulations state:
“For the most serious offences tried by magistrates that maximum is generally £5,000 although for certain offences where the financial gain from offending is substantial—for example in some environmental offences—the maximum fine can be as high as £50,000.”
How will the offences we are considering compare? I understand that when a similar amendment was considered during the passage of the Police, Crime, Sentencing and Courts Bill, the Minister in the other place said,
“We think that an unlimited fine is appropriate in the case of these new offences; a level 1 or level 2 fine…would not…in our view…reflect the seriousness of the conduct in question. An unlimited maximum fine allows courts to determine the level of any fine on a case-by-case basis, having regard to the gravity of the offence and the ability of the offender to pay.”—[Official Report, House of Lords, 24 November 2021; Vol. 816, c. 994.]
It would be helpful if the Minister could shed some light on an estimated fine that he believes could reflect the seriousness of the conduct in question, which, as we have just debated, is so broad in scope.
Kit Malthouse
I have already spoken about the harm that locking on can cause and we feel strongly that those who commit locking on should face a sentence proportionate to the harm they cause. The maximum fine of £500, which the amendment provides, is simply not proportionate to some of the offences we have seen and the courts should have the discretion to impose an unlimited fine on a case-by-case basis. Judges do this on a regular basis within the framework set for them, dependent on the individual’s circumstances, their relative wealth and the likely deterrent effect the fine will have.
Although I understand and hear what the hon. Member for North East Fife says about what happens north of the border with malicious mischief, it is the case that in theory that offence carries an unlimited fine and, indeed, an unlimited prison sentence, notwithstanding the guidance judges operate under. I am conscious that the fuel protestors recently arrested outside Glasgow have all been charged, as I understand it, with malicious mischief. We will wait to see what the result may be, but I have no doubt that Scottish judges will look to the circumstances of those individuals and the damage and disruption they caused while they decide what the fines should be. Although she might say that that is not more draconian, we are simply seeking to mirror what would be experienced north of the border, and I urge the hon. Lady to withdraw the amendment.
Wendy Chamberlain
We ask the Minister to accept that because malicious mischief is a crime of common law there are unlimited fines and imprisonment attached to it. We have no legislation that does not have a fine scale within it, which is why I think we should ensure that we have something on this. My amendment is very much intended to probe what the Government would consider reasonable, so I have no intention of pressing it to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Jones
Clause 1, as we know, establishes a new criminal offence targeting people who engage in the act of locking on. It criminalises those who attach themselves to another person, an object or land, those who attach a person to another person, object or land and those who attach an object to another object in the same scenario, as long as such activities cause or are capable of causing serious disruption to two or more people or to an organisation in a public place. Those involved must intend the act to cause and be capable of causing serious disruption to two or more individuals or an organisation or be reckless as to whether it will have that consequence. A reasonable excuse is the defence, and breach of this offence means a maximum of 51 weeks imprisonment, a fine or both. That is how the clause is laid out in the Bill.
I should make one thing clear at the start. During the evidence sessions last week we heard examples of really egregious breaches of law—smoking on oil tankers, gluing oneself to motorways and tunnelling under High Speed 2. There should be no doubt that those are examples of criminal behaviour. They are also highly dangerous to the protestors, to the police and to the public. Many of the examples of what is called protest, as several witnesses explained last week, involve people who have gone way across the line and are committing criminal acts. We do not think that those are examples of legitimate protest; they are criminal acts.
We heard about the deportation flight in 2017, scheduled to take off from Stansted. Protestors cut through the safety fencing around the airport perimeter and locked themselves on to a Boeing 767 jet. Flights were disrupted, delayed and cancelled and the runway was closed for an hour. For oil refineries or oil tankers, as Elizabeth de Jong mentioned, people lock themselves on or attach themselves to the top of stationary tankers, often full tankers. They have locked on at height, often with machinery. Once again, that is illegal behaviour. We also heard evidence of protestors blocking motorways. Insulate Britain blocked junction 25 of the M25, which is the Enfield junction to the north-east of London. Four protesters sat on the road, on both sides of the carriageway. There can be no doubt that that is dangerous to road users and the police as well as the protesters.
Mrs Natalie Elphicke (Dover) (Con)
Will the hon. Lady comment on there being an offence for every crime she has described? We heard in evidence, and I commented on it, that the Court of Appeal said of the Stansted incident that there was not an offence that reflected the gravity of the situation there. Does she agree that it is important to ensure that that gap is filled?
Sarah Jones
I thank the hon. Member for her remarks. I hope she will forgive me, as I do not have the evidence in front of me, but as I recall it, clearly the charge made there did not lead to the outcome that those people had intended. Perhaps there were other offences, of aggravated trespass, for example, which is imprisonable and could have led to a charge.
Trespass laws can apply even on public roads, when someone is not using them for a permitted purpose. Other legislation is also available. In the evidence session, the Minister suggested that some existing legislation does not allow prison sentences, but it does. Wilful obstruction of the highway comes with a fine but in the Police, Crime, Sentencing and Courts Act 2022—
Sarah Jones
Well, it does not, because it has not been implemented. When it is, there will be six-month sentences attached to that. Criminal damage can lead to up to 10 years in prison, depending on the value of the damage. Aggravated trespass can lead up to three months in prison, a fine, or both. Breaching an injunction, as we have heard, can lead to two years, a fine, or both. Public nuisance can lead to 12 months on summary conviction, or 10 years on conviction on indictment.
Failure to comply with a condition can lead to a fine, but one year in prison if someone incites someone else to breach a condition. Organising a prohibited trespassory assembly can lead to three months in prison, a fine, or both. Participating in a trespassory assembly can lead to a fine. It is clear there is a broad list of offences of which criminal protesters can be found guilty. On fines, as we discussed, the law changed in 2015, to allow magistrates courts to issue unlimited fines for serious offences. Prior to that, there was only an unlimited fine in the Crown court.
Conditions on protests only need to be applied to public land. That was again an issue that the Minister raised in the evidence session. The de facto position on private land is that permission for protest is not granted, unless an invitation has been extended by the landowner. If people protest on private land, they could be found guilty of either aggravated trespass or trespassory assembly. Even if the threshold for those offences is not met, they would still be committing an offence, merely by their incursion on to private property and, whether they were aware of doing so or not, of the more basic offence of trespass, which is a civil wrong, not a criminal one.
Two things are required to commit aggravated trespass: trespassing and intentionally disrupting, obstructing or intimidating others from carrying out lawful activities. Further, a senior police officer has the power to order any person believed to be involved in aggravated trespass to leave the land. If they refuse to do so, that is an additional offence. The maximum penalty is three months’ imprisonment or a fine of £2,500, or both. First-time offenders would likely get a fine of between £200 and £300. I could go on, but I will not.
There are several examples in recent history of the police responding to lock-on protests. In September 2020, 80 Extinction Rebellion protesters were arrested and charged with obstruction of the highway after blocking printer works at Broxbourne and Knowsley. In October 2021, Kent police arrested 32 people for obstructing a highway and conspiring to commit public nuisance on the A40 and M25. In early 2021, the police used trespass offences to clear anti-High Speed 2 protestors from Euston Square. The police are entirely able to use reasonable force—indeed, they should be encouraged to do so—to, where necessary, unlock people who are locked on.
In the case of Insulate Britain, people have been jailed for defying a court order preventing them from protesting on the M25. Five Insulate Britain campaigners who had held a demonstration on the motorway in September were jailed and all charged with contempt of court. Ben Taylor, Ellie Litten, Theresa Norton, Stephen Pritchard and Diana Warner were given jail terms, each lasting between 24 and 42 days. Eleven others from that group received suspended prison sentences. A number of High Court injunctions were put in place after Insulate Britain’s road blockades last year. Nine other Insulate Britain campaigners were given jail time or suspended sentences. Two protestors were handed prison sentences of two months and 30 days, while seven others received two-month suspended jail terms for breaching injunctions.
As Liberty has pointed out, people have not gone to prison in some cases, but have in others. The courts look at the location and the manner of the protest. They are very unsympathetic to protesters who block the M25, because they have a damaging effect on people who have nothing to do with their cause, but more sympathetic to those who demonstrate against the actual object of their protest, because they do not affect the public in general.
Sometimes the police do not use the powers at their disposal. There is a number of reasons for that, including lack of training. We heard from John Groves from HS2, who said:
“Certainly, there is frustration from my team on the ground that the police are not more direct with some of the protesters”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 23, Q43.]
Part of that is about resources. We do not have the French system, nor do we want it, but in some cases we do not have enough people. As Peter Fahy said:
“There is not a standing army waiting to deal with protest. They come out of normal policing when they are required to do so, and the amount of neighbourhood policing that is affected by just keeping up with that demand is…quite acute.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 63, Q123.]
The other reason why the police do not always act on a raft of existing legislation—as HS2 found, to its frustration—is lack of training. We have debated several times the report by Her Majesty’s inspectorate of constabulary and fire and rescue services. Written by Matt Parr, it looked at protest, the nature of protest and what should be done. Most of its recommendations had nothing to do with changing the law, focusing instead on training for officers. Its findings included that,
“protester removal teams…are trained to remove protesters from lock-on devices. But we found that forces do not have a consistent way of determining the number of trained officers they need. As a result, the number of specialists available varies widely throughout England and Wales.”
Matt Parr also highlighted that
“the police should develop a stronger rationale for determining the number of commanders, specialist officers and staff needed to police protests.”
He looked at whether chief constables were making good use of their legal services teams, and at a raft of different systems for gathering intelligence on protests and for dealing with them when they happen. In the evidence that Matt Parr gave us, he was really clear and enthusiastic that his changes are beginning to be implemented in the way in which he wants them to be. Before seeking to change things again, we need to wait for the implementation of all of those recommendations—which he has said will significantly improve the police response to protests—and of the Bill that has recently been passed.
The police seem to be in possession of some very useful powers to help deal with lock-on protests when they go beyond the scope of a legitimate protest. Even if we look further back into history, we find really good examples of peaceful lock-on protests and of the police making good use of the powers available to them when they need to.
For example, people look back on the Greenham Common women’s peace camp as a protest by a group of women who made good points and achieved some success. It involved a series of protest camps against nuclear weapons at RAF Greenham Common in Berkshire. Women began arriving in 1981 after cruise missiles were stored there, and they employed lock-on tactics by chaining themselves to the base fence. The camps became well known in 1983—I was 11 at the time—when, at the height of the protests, about 70,000 people formed a 14-mile human chain around the base. It is interesting that we are talking about the methods used by Insulate Britain and Just Stop Oil as if they are a new phenomenon. I do not remember it, as I was too young, but it must have been quite something to have 70,000 people form a 14-mile human chain—a lock-on—around the base.
Another encircling of the base occurred in December of that year, with 50,000 women attending. Sections of the fence were cut, but the police acted and arrested hundreds. Protest activity continued to occur at Greenham, and the last missiles left the base in 1991, following the intermediate-range nuclear forces treaty. The Greenham women clearly left their mark on history. They used peaceful lock-on tactics, and when they entered the RAF site, they were arrested by the police. As today, the women were apparently subjected to abuse and hatred. Vigilante groups attacked them with slogans such as “Peace Women: You Disgust Us”.
Lee Anderson (Ashfield) (Con)
The hon. Lady says she was 11 years old at the time. I was about 16 or 17, and I remember the Greenham Common women coming up to Ashfield during the miners’ strike. I can remember the scenes at Greenham Common—they were disgusting scenes—although they made it a legitimate protest. Does the hon. Lady recall the time when they were hanging certain feminine products around the perimeter fence? That was disgusting.
Sarah Jones
Gosh. I do not know what feminine products the hon. Gentleman means, but perhaps I will not ask further. [Interruption.]
Sarah Jones
My point is that where the police needed to intervene at Greenham Common, they intervened. Where they needed to arrest and charge people, they arrested and charged people.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
My hon. Friend is making an excellent speech, and I am not quite sure what the previous intervention had to do with it. Is it not the point that, after the passage of time, people who were criminalised for what they did are now seen as valiant? Not far from here, there is a statute of Viscount Falkland in St Stephen’s Hall. The statue’s foot spur was broken off by suffragettes in, I think, 1912. At the time, that was a locking-on offence, because they attached themselves to the statue and the police took them away. The foot spur has never been replaced because it is part of our history, and we now see the suffragettes, the women at Greenham and the anti-apartheid protesters as valiant people who were on the right side of history. This clumsy offence gets it all wrong by getting heavy-handed at an early stage.
Sarah Jones
My hon. Friend is absolutely right. Not all lockons are a criminal offence and nor should they be, but where people are locking on in a way that is dangerous and disruptive, that should be an offence.
Kit Malthouse
Does the hon. Lady accept that, in the Bill as drafted, the reasonable excuse defence and the serious disruption requirement mean that not all lock-ons will necessarily be a criminal offence? If something similar to the St Stephen’s Hall example given by the hon. Member for Ealing Central and Acton were to occur, that would not necessarily cause serious disruption to the life of the community, and would therefore not necessarily constitute an offence under the Bill.
Sarah Jones
Well, my hon. Friend the Member for Ealing Central and Acton could get a 10-year prison sentence for damaging a statue. Clause 2, which we have not got to, is even more vague, but a person does not have to cause serious disruption; they can intend to have a consequence that will cause serious disruption. I know several very respectable elderly ladies in my constituency—I am sure the Minister has the same—who attend environmental protests. Given that the Bill is so vague, I am absolutely sure that they will be scared of being arrested just for turning up to or taking part in protests. That is the point that we are trying to make.
Wendy Chamberlain
The hon. Lady has given a very good example. We on the Opposition Benches accept that there are forms of protest that are illegal, which we heard evidence about last week from witnesses. However, we also heard that there is a hard core of illegal protesters who will not be deterred by this Bill. The people who will be deterred are those who wish to engage in peaceful and legal protest, as is their democratic right, but will be prevented from doing so.
Sarah Jones
The hon. Lady is absolutely right, and it is also the case that we have seen protests of this scale and nature for many years. The problems we see now are not unique, and they are able to be dealt with through existing legislation.
Our fundamental argument is not that people who are gluing themselves to motorways are not committing an offence or causing a major problem. It is not that the people who were digging tunnels at HS2 sites were doing nothing wrong, and nor is it that the representatives of HS2 and the others who gave evidence to us are wrong to ask that something be done. Our argument is that, first, the Bill will not act as a deterrent to the small number of people we are talking about—those who repeatedly offend and, indeed, want to get arrested. Secondly, it will not speed up the practical business of removing those who lock on. As we heard about the protest at the newspaper, it took several hours for specialist police to arrive. That was the cause of the delay, but once those police arrived and removed those who were locking on, the problem was dealt with. The delay was the problem, and the Bill will not do anything about that.
Thirdly, there are plenty of existing powers that can be, and are, used by the police. Fourthly, lots can be done, and is being done, to improve the way in which the police manage protests, as a result of Matt Parr’s report and other things. Finally, the Bill is drawn so widely that it risks criminalising non-criminal contact, which will have a huge, chilling impact on people who want to peacefully protest. In short, it seems that the Minister wants us to move towards the French, Spanish and Italian systems that we heard about from Peter Fahy. I will read a paragraph from his evidence, because I thought it was incredibly powerful:
“People do not realise that we are pretty unique. When you hear about the sophistication and negotiation the chief superintendent talked about”—
that was the West Midlands chief super—
“that is the British style. In all the protests it is escalation, which looks in the early stages like the police are being weak, but in the background they are talking to people and they are escalating. They are saying, ‘If you keep on coming back, we will use this power and that power. Have you heard about that?’ That is the British style of policing. You do not start with the heaviest. You work up to it, and that then maintains the confidence in your legality and proportionality.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 62, Q122.]
Peter Fahy also said:
“We are not like France, Spain and Italy, which have paramilitary police forces. If this had happened in France, they would have turned out the CRS very rapidly...they would use water cannon, they would probably use rubber bullets, and essentially the French population would accept that level of force. Thankfully, we do not live in a country like that”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 50, Q110.]
The reason why we are here in this House is to make the best law we can, but as it stands I do not think that the breadth and scope of clause 1 is proportionate to what we are trying to deal with. The right to protest is not an unconditional one; nobody says that it is. It will always be about mediation and compromise, and action where there needs to be action. I and other Opposition Members are horrified by some of the disruption that we heard about in the evidence sessions.
Tom Hunt (Ipswich) (Con)
On that topic, I am interested to know whether the hon. Lady would condemn the protest that took place at the weekend in Peckham, where immigration officers and police officers were actually prevented from carrying out their role in upholding the law of the land. I understand that a Labour councillor may have been involved in the organisation of that; and many Labour Members of this House have actually applauded those protesters in the media.
Sarah Jones
I did not see that protest. I am sure the police did the job that they needed to do, but—
Sarah Jones
I have not read about that.
As I said, Opposition Members have been horrified by the disruption that we heard about in the evidence sessions. However, everybody who gave evidence was clear that it is a very small proportion of protests that cause disruption; the vast majority pass by with no problems at all.
The final issue that I want to cover is the chilling effect that Matt Parr writes about in his report. If we look closely at the drafting of clause 1—the hon. Member for North East Fife has referenced this—we see that it is so broadly drawn that it criminalises an innumerable list of activities and not just what we typically consider to be lock-on protests, which would be dangerous and require intervention. The term “attach” is very broad and goes undefined in the Bill. Does it perhaps include the linking of arms? Yes, technically it does. Liberty, in its recent briefing, notes that the wording might interfere with articles 10 and 11 of the ECHR, as laid out in the Human Rights Act 1998. We have already debated what is a reasonable excuse and how that is defined. We note that someone does not even need to actually cause any disruption in order to commit an offence. They have only to be “capable” of causing serious disruption. That provides a practical difficulty and perhaps a headache for the police when determining the crucial context of a protest that might well cause serious disruption if it were to take place at a different time, but actually happens on empty roads in the middle of the night.
I will sum up by saying that clause 1 is unnecessary for the proper policing of protests. Most of the extremely irritating and disruptive events that were described by our witnesses were criminal acts, and they were already covered by a raft of existing legislation that allows the police to deal with protests. The police have the power; they need more support and more training, but this broad and ill-defined clause does not provide that support. Instead, it tips a crucial balance and risks criminalising, at a very low threshold, legitimate and peaceful protest, one of our core human rights.
Kerry McCarthy (Bristol East) (Lab)
I echo what my colleague on the Front Bench, my hon. Friend the Member for Croydon Central, was saying about how we approach the policing of protests in this country. Obviously, Bristol has had quite a reputation for protests, particularly around the time of the events involving the Colston statue. We know that the people involved in that protest were eventually acquitted of criminal damage.
I have been out with the police to see how they approach things. There were a number of weekends in a row when there were protests against the Bill that has become the Police, Crime, Sentencing and Courts Act 2022. People were, quite rightly, very unhappy about what the Government were trying to do. I went out with the police and also went to the operations centre to see their approach; what they wanted to do was to facilitate protest. They wanted to facilitate peaceful protest and were very good at trying to ensure that it did not turn into something that put people at risk. For the most part, they were successful. Can the Minister say where the parameters of the clause come in?
There are historical examples. My hon. Friend the Member for Croydon Central mentioned Greenham Common, but if we look back at the suffragettes, part of their tactics was to tie themselves with belts or chains to Buckingham Palace or Parliament. In January 1908, Edith New and Olivia Smith chained themselves to the railings at No. 10, which would not happen now, while one of their colleagues, Flora Drummond, went inside to disrupt the Cabinet meeting. I dread to think what the response would be now; they would not get anywhere near it. They chained themselves because that they wanted to make their voices heard. If they were immediately arrested, they would not have the chance to make their speeches, so it was a tactic to stay in place and at least get a few sentences out before they were removed.
Kit Malthouse
We might as well address that point straight away. As I said to the hon. Member for Croydon Central earlier, there are two tests that the police or, indeed, the courts will have to apply. The first is that serious disruption is caused. I am not sure necessarily that somebody chaining themselves to the railings outside this place would cause serious disruption. Secondly, there would be a defence of reasonable excuse. In the case of the suffragette who chained herself in St Stephen’s Hall, we would imagine that there may well be other offences but I doubt that this provision would apply. Indeed, if someone were able to chain themselves to the railings serious disruption would not necessarily be caused. We are trying to address some of the events we have seen over the last couple of summers, not least the fuel protests, which have been dangerous and caused massive and serious disruption to the community.
Kerry McCarthy
The Minister has rather pre-empted what I was going to say. The suffragettes knew that they would be arrested but took the decision because they felt their cause warranted it and they knew, roughly speaking, what the response would be and the sort of punishment available. If people are going to engage in this sort of activity and knowingly do things that would break the law, when we have an offence that treats something so seriously, my concern is at what point people can make that calculation on whether they are going to be arrested and taken to court under lesser legislation or whether the clause will be invoked. Its vagueness means that it is not clear where those parameters are.
This silly example is more for the Committee’s amusement: we had the case of an Extinction Rebellion protestor in Bristol who tried to glue himself to the doors of City Hall. However, they were automatic sliding doors, so the moment someone approached them, they opened. I think it was caught on camera, but every time he tried to glue his arms to the door, they opened. He could not manage to do it. I do not suppose the protestor would be dealt with under an offence of this kind and he probably deserves a prize for entertaining everybody.
That was an aside, but to give an idea of the sort of calculations people make, in my constituency I have a good activist on disability issues who has disabilities himself. He has a personal assistant who went on a protest with him, and he insisted that his personal assistant chain handcuff him to the pole by the door of a London bus. There was a big protest of disability activists blocking the streets—I think it was around Piccadilly Circus—to protest about accessibility and public transport. When the police came along, they did arrested not the guy who was chained up but the personal assistant for locking him to the pole. It was the personal assistant’s birthday and he spent the night in the cells, while somebody else managed to get my friend, the activist, home.
There is a clause in the Bill about locking somebody else to something and that raises interesting issues about the situation for a personal assistant. They are there to act at the will of the person they are assisting and to do anything they ask. If somebody were asking a personal assistant to commit a criminal offence, such as assaulting someone or something that is generally regarded as beyond the pale, the assistant would not do that. If disability activists want to exercise their right to protest, are they allowed to exercise their right to break the law as well? Personal assistants are not meant to have their own opinions on such matters; they are meant to do as they are asked.
Andrew Bridgen (North West Leicestershire) (Con)
Will the hon. Lady give way?
Kerry McCarthy
If I may just finish this point. They are entitled to make the decision to break the law and suffer the consequences. That is something that we accept in this country. People can choose to do that, provided they are willing to accept the consequences. To make that decision and exercise their democratic rights in that way, they need some certainty about how they will be treated by the law. It is a basic concept of operating in society that we ought to know how the criminal justice system will treat us.
What is likely to happen if the provision on excuses is invoked? If the clause is invoked when people do not feel it should be, the courts will acquit because it is unfair. I do not get a sense of clarity and I am looking for one from the Minister. We know that the clause will apply to the most serious cases, of people chaining themselves to planes. We know that it will not apply to a guy trying to superglue a hand to a sliding door at Bristol City Hall.
Kerry McCarthy
The Parliamentary Private Secretary asks why not. That is quite worrying. Would that cause serious disruption, if he had one hand attached to the door and was wiggling backwards and forwards as everyone went in and out? That is exactly my point. If that is deemed to cause serious disruption, that is very worrying. I cannot think of many locking-on offences that would not be deemed serious disruption. It proves my point if the PPS thinks that the provision would cover a case as ludicrous and minor as that. That proves my point, so I will sit down and ask the Minister to explain where the middle ground and that clarity is.
Kit Malthouse
Clause 1 is a key part of the Government’s plans to protect the public from the dangerous and disruptive tactic of locking on. Recent protests have seen a minority of selfish individuals seek to cause maximum disruption by locking themselves to roads, buildings, objects and other people. That has seen traffic disrupted, public transport impacted and the transport of fuel from terminals ground to a halt, to name just a few examples.
Such tactics cause misery to the public, with people unable to access their place of work or schools, or to attend vital hospital appointments. It is impacting people’s ability to go about their daily lives and is causing considerable anger. The Committee will remember the frustration and anger expressed by members of the working public at Canning Town station in 2019, when protesters from Extinction Rebellion glued themselves to a Docklands Light Railway train during the morning rush hour, risking their own safety and that of the travelling public.
I welcome the condemnation of some of those protests by the hon. Member for Croydon Central, and her possibly belated support for the increase in sentencing in the Police, Crime, Sentencing and Courts Act 2022, which has just received Royal Assent. As she said, there is now a suite of offences that may or may not be committed. To address the point made by the hon. Member for Bristol East, we want people thinking about using this tactic to make a calculation about whether and how they break the law. It is not a human right to break the law. If people calculate that they want to do that, they must, as she said, face the consequences. In employing dangerous tactics and causing disruption, those who call themselves protesters, but are in many cases trying to effect a mass blackmail on the British public, should make a calculation about whether they are causing an offence, and there should be an air of jeopardy to what they do.
Andrew Bridgen
The hon. Member for Bristol East said that many of these people’s protests might be spontaneous and not pre-planned. Does the Minister agree with me that it would be very unlikely that people would have the equipment to lock on if it was not a pre-planned protest?
Kit Malthouse
My hon. Friend makes a very strong point. Certainly a lot of the most disruptive protests that we have seen will have taken meticulous planning and preparation and the acquisition of materials, not least the adhesive chemicals required, scaffolding poles and vehicles. We have seen all sorts of tactics employed, which, as he rightly says, take serious preparation to put into effect.
Kerry McCarthy
To clarify, when I was talking about protests in general and people breaking the law during a protest, I was not talking about locking on.
Sarah Jones
To be clear, the clause makes it an offence to attach oneself in any way to any person, which means that any form of linking arms is a criminal offence. Does the Minister genuinely believe that a group of women standing outside Parliament locking arms would be committing a criminal offence as soon as they do that?
Kit Malthouse
That is just nonsense. The hon. Lady will not address the issue of disruption or reasonable excuse. I am sure the police are able to determine and the courts will interpret what is designed in this legislation. She has said rightly that the people we are talking about should go to prison. She said they are committing crimes. The only dispute between the two sides of the Committee is what offence they should be charged with, which is what we seek to provide.
Opposition Members have sought clarity and precision. We have seen that those who are arrested and charged in these circumstances are charged with a range of offences—obstruction of the highway, aggravated trespass, which the hon. Lady referred to, and criminal damage and public nuisance, depending on where the offence occurred and the circumstances. Unfortunately, we have seen situations where, on technicalities, a lack of precision in our ability to deal with the offence has meant that people have got off. For example—
Kit Malthouse
As the hon. Gentleman will know, there were protesters who locked on to a printing press in Knowsley in Liverpool. They were charged with aggravated trespass, but avoided conviction because the prosecution was unable to prove where the boundary was between the private and the public land. We are trying to provide precision in that offence area, and that is what this part of the legislation does. Aside from the disruption and anger that they cause, lock ons also waste considerable amounts of police resource and time, with specialist teams often required to attend protest sites to safely remove those who have locked on.
The hon. Member for Croydon Central seems to imply that we should have at-height removal teams on stand-by in all parts of the country 24 hours a day, but it is not realistic for British policing to do that. Some lock ons, particularly those that occur at height, place both the police and protesters at serious risk of injury and even death. For example, protesters at HS2 sites have deployed bamboo structures, necessitating the deployment of specialist teams who are trained to remove them at height at considerable risk to themselves and the protesters they are removing. That is why the Metropolitan Police have asked us to provide them with more powers to tackle that kind of reckless behaviour, and the Government have now responded.
Sarah Jones
I just want to clarify what the Minister says because he misrepresented my point, which was not that we should have thousands of officers ready in a kind of French-style tool. My point related to the points that Matt Parr made about how forces do not have a consistent way of determining the number of trained officers they need. There are not enough specialist roles in the right places at the right time. That was his recommendation, and there is a programme of work to fix that. I am arguing that we should wait for that fix so that the police can do the best job that they can.
Kit Malthouse
As the hon. Lady rightly says, Mr Parr said, I think, that the responses had been exemplary. Work is ongoing. She referred to the printing press incident in Hertfordshire, and she put the problems experienced down to the delay in the police getting there—in the middle of the night, in some numbers—to remove protesters who had managed to erect scaffolding very quickly and glue themselves effectively to the top of it. It is just not realistic for the police to be there in seconds to deal with such an incident. I believe that the hon. Lady said that the main problem was the delay.
Kit Malthouse
No, but the point is that the clause will make such protesters think twice about their actions, because the offence that they are committing when charged is not necessarily vague.
Kit Malthouse
Just a minute.
The clause creates a new offence of locking on that will be committed when an individual causes serious disruption by attaching either themselves or someone else to another individual, an object or to land, or attaching an object to another object or land. Their act must cause or be capable of causing serious disruption to an organisation or two or more individuals, and the person intends or is reckless as to that consequence. The offence carries a maximum penalty of six months’ imprisonment and an unlimited fine.
Referring only to the act of locking on rather than to the equipment used recognises that protesters deploy a wide range of equipment to lock on, from chains and bike locks to bespoke devices, and ensures that the offence will keep pace with evolving lock-on tactics. The offence can be committed on either public or private land, and that ensures that those who use that tactic in, say, an oil refinery do not evade arrest and prosecution for the offence. Furthermore, new stop and search powers that we will consider shortly will allow the police to take proactive action to prevent locking on in the first place, by seizing items that they believe will be used by protesters to lock on.
Alex Cunningham
The Minister has just referred to oil refineries and private space. Chris Noble said in his evidence
“If we moved more into a private space than currently, we would see that as potentially being incredibly significant for money and opportunity lost in terms of policing communities. Those abstractions would probably quite fundamentally change my local model of policing, in terms of being able to maintain that.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 13, Q17.]
Does the Minister accept that he is putting greater pressure on the police, and certainly on their resources?
Kit Malthouse
As I said earlier, I do not accept that because if we get the cocktail of deterrent correct, and get those protesters—
Kit Malthouse
He has to see all the clauses in the round. If we get those protesters to think twice about their actions, we hope that they will desist—
Kit Malthouse
Or at least they will be incarcerated, such that they will not be able to continue with their protests.
The Chair
Order. Minister, just a moment. We are actually dealing with the Public Order Bill, and I would like a little bit of order in here as well. Can we stop shouting across the room and keep some order?
Kit Malthouse
We are trying to provide some precision in the offences that the police are able to charge offenders with in certain protest situations that have evolved in the past couple of years. Lock ons have caused significant distress, alarm and disruption to the community. The police, particularly the Metropolitan police, have asked us to introduce the offence and we are pleased to be able to help them. We heard in evidence to the Committee from the operational police chief that he thought that the legislation would help with the situation. We also heard from Her Majesty’s inspectorate of constabulary and fire and rescue services, notwithstanding the fact that he thought there was an exemplary response to his original report, that what we were doing seemed sensible. The clause will ensure that those who resort to inflicting misery on the public by locking on will face the maximum sentences, proportionate to the serious harm that their actions cause.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Offence of being equipped for locking on
Sarah Jones
I beg to move amendment 47, in clause 2, page 2, line 13, leave out “may” and insert “will”.
The Chair
With this it will be convenient to discuss the following:
Amendment 32, in clause 2, page 2, line 14, leave out “or in connection with”.
This is to probe what actions may also be criminalised "in connection with" an offence.
Amendment 48, in clause 2, page 2, line 14, leave out—
“in connection with the commission by any person of”.
Amendment 33, in clause 2, page 2, line 14, leave out “any person” and insert “them”.
Currently the offence of “being equipped for locking on” does not require the object to be used by the person with the item specifically, but by “any person”. This amendment is intended to limit the offending behaviour to a person who commits the offence of locking on.
Sarah Jones
Amendments 47 and 48 are in my name, and I will speak to amendments 32 and 33 in the name of the hon. Member for North East Fife.
Amendments 47 and 48 are similar and intended to deal with a similar problem. Amendment 47 narrows the clause and puts the onus on the police to be sure that a particular object was absolutely intended to be used in a lock-on, not just that it “may” have been. We should be clear—again, we will talk about this when debating clause stand part—that, if the police are to criminalise someone for being equipped to lock on, which we disagree with, then they must be entirely clear that the object in question is absolutely there for a lock-on.
Liberty, for example, expressed concerns about a vast range of possibilities of things that “may” be used in the course of locking-on. I hope that the Minister will help us with his ideas of what “may” means. Speaking to amendment 48 as well as this amendment, would bottled water or food for other people who are locked on come under that definition? They may be used in a lock-on, although also most likely would not be.
Amendment 48 also contains important wording changes to protect those good people who attend protests with entirely the best intentions, but who risk being criminalised by drafting that is too broad. The amendment removes the possibility that an individual could be criminalised due to the possibility that an object in their possession may—“may” is the important word here—be used by someone else in the course of a lock-on. Let us imagine that my son is on his way to a protest. He cycles there, much as my staffer cycles to work. He is already at risk of criminalisation by having a lock in his bag. As it turns out, however, he is doubly at risk, as that lock could be used by any person for a lock-on and he would be liable for it. It should be noted that the clause also does not contain any reasonable excuse defence.
Such issues, because bad and careless drafting gives clauses such breadth and scope, cut to the core of what we are grappling with in the Bill. As I said earlier, the Opposition do not stand with those who cause serious disruption and break the law, but we absolutely stand with those who protest peacefully, not causing disruption, and who wish to be loud, annoying and proud in a peaceful manner about the issues that they deeply care about.
Wendy Chamberlain
My party and I are happy to support Labour’s amendments 47 and 48. The scope of my amendments 32 and 33 is similar.
The intention of our amendment 32 is to probe what might be criminalised in connection with an offence. The theme this morning has been the broadness of the legislation as drafted, and the Opposition are looking to get some definition of what that might look like. Amendment 33 intends to ensure that the person who is prosecuted for the offence of being equipped also did the locking on themselves.
My concerns are linked to those set out by the shadow Minister, the hon. Member for Croydon Central. As she asked, will the provision of food and drink to someone engaged in protest activity be included? What about medical supplies, if a protester is injured in the course of the protests? What about a parent, simply worried about the safety of a young adult, who makes sure before they go to a protest that they are wearing sturdy clothing? What about the community group that lends its loudspeakers to an event?
The scope is so broad that such people, arguably, could get caught. This morning, we have discussed how the law will be interpreted. Those interpretations, given the Bill’s existing scope, are valid. What about people who happen to be caught passing a protest while carrying material used for locking on? For example, lots of MPs cycle in to Westminster, and demonstrations happen in Westminster all the time. Are MPs to be caught by this legislation simply because they are carrying their bike locks as they make their way into the estate? Under the Bill, that could theoretically happen.
While the police may not prosecute MPs, we know from the evidence we heard last week and from other evidence that sections of the population are overly policed. We will discuss the stop-and-search powers later—I am sure that Members will have much to say then—but if the evidence currently says that black people are eight times more likely to be stopped and searched, it follows that black people will also be disproportionately criminalised for carrying innocent items in the wrong place at the wrong time. As such, I am keen to hear from the Minister what this clause includes, and for amendments to be tabled that will limit its scope appropriately.
Amendment 33 addresses some of those problems. As drafted, the Bill allows for someone to be prosecuted for carrying an item that someone else uses to lock on. This has the potential to criminalise people who are peacefully protesting, or indeed those who are not protesting at all. We need to be clear: it is not a crime to attend a protest, nor is it a crime to carry the sorts of household items that are used for locking on—if that were the case, how would anyone purchase those items? Doing so without then breaking the law, simply put, cannot be a crime.
Kit Malthouse
I will speak to the amendments now, and then speak more substantively on stand part.
The amendments seek to raise the threshold for the offence of going equipped to lock on. Amendment 47 would raise the threshold for that offence, requiring that individuals “will” intend that the equipment be used in the course of locking on, rather than “may” intend. It is important that the police can protect the public from the possibility of someone locking on. Raising the threshold of the offence to “will” rather than “may” would restrict its effectiveness and the ability of the police to take proactive action against lock-ons, which we heard from the operational police chief during our evidence session was critical to minimising disruption.
Amendments 32 and 48 would remove from the scope of the offence of being equipped to lock on, someone who carries equipment intended to be used in connection with the locking-on offence, rather than in the course of that offence. Amendment 33 would also narrow that offence by applying it only to the individual who commits a lock-on. These amendments would mean that during disruptive protests, those who deliberately brought lock-on equipment to hand over to fellow protesters for them to use would not be criminalised for doing so, effectively allowing protesters to continue to legally provide lock-on equipment to others and removing a key deterrent aspect of the offence. Doing so would severely limit the effectiveness of the offence in stopping the use of lock-ons from spreading during a fast-moving protest situation, and I am afraid that we cannot support it. We ask that the amendment be withdrawn.
Sarah Jones
Given the vote that we have had on a similar measure, I see little point in pressing amendment 47 to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Wendy Chamberlain
I beg to move amendment 34, in clause 2, page 2, line 17, after “fine” insert
“not exceeding level 1 on the standard scale”.
A person convicted of an offence of “being equipped for locking on” may be subjected to a fine. In the Bill there is currently no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.
The amendment is very similar to the amendment to clause 1 that I tabled previously. It ensures that any fines levied for the offence of being equipped for locking on are quantified, rather than left as an unlimited fine. I have very little to add beyond the remarks that I made regarding my previous amendment.
Kit Malthouse
As I made clear when speaking to the hon. Lady’s previous amendment, we disagree with lowering the maximum fine available for this offence. We feel strongly that those who commit lock-ons and carry lock-on equipment should face a proportionate sense of the harm they cause. The maximum fine that the hon. Lady proposes, £200, is simply not proportionate; we believe that the courts should have discretion to apply an unlimited fine. As such, I encourage the hon. Lady to withdraw her amendment.
Wendy Chamberlain
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Jones
The clause creates a new criminal offence targeting people who have an object with them in a public place with the intention that it will be used in the course of or in connection with the commission of the new offence of locking on, as we have been debating. The punishment for the offence is an unlimited fine.
Our concerns about the clause should be read and understood in conjunction with our concerns about clause 1. This very short clause is too vague and ambiguous to be useful. Line 12 talks of an “object”, but that object need not be related to protesting at all. All that is required to be criminalised under this offence is that a person might have intended to use the object—potentially, any object—in a certain way. Perhaps more pressingly—I will come back to this later—the object does not have to be used by the person who has it in their possession. It needs to be used only
“in the course of or in connection with”
a lock-on.
It is so important that we consider the limits of the legislation that we create in this place. None of us who works here in Parliament is a stranger to protests. We see them outside our offices almost every day. The example of the bike lock is real and I do not think it has been meaningfully disputed by the Minister. Perhaps it is in someone’s bag or attached to the bike, but that makes no difference.
Someone could wheel their bike through Parliament Square—multiple protests might be going on at once, which is not uncommon—and be in potential breach of this legislation. No proof that the bike lock is to be used in a lock-on is needed, only that it “may” be. Hard-working, law-abiding people simply trying to get in to their place of work are at risk of being found to have committed this offence. The original drafting of the clause is deeply ambiguous.
It was notable that so many of our witnesses last week spoke of the deterrent effect that they hoped the Bill would provide—a desire for something to be done to act as a deterrent. John Groves from High Speed 2 Ltd hoped that
“this legislation is about the deterrent effect”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 18, Q28.]
Nicola Bell noted:
“what is included in the Bill, I hope, offers that deterrent.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 20, Q37.]
We have real doubts, however, as to whether the Bill will provide anything close to a deterrent to hardcore repeat offenders. Instead of providing a deterrent to the hardcore of the protest movement, who are intent on causing disruption, such people might be delighted that their lock-on protests would be criminalised. We were told last week that those protesters
“will not be deterred by this legislation.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 44, Q91.]
For them, going to prison for the cause is a badge of honour.
Sir Peter Fahy said:
“I do not know whether there is actually any evidence that people are deterred...but clearly some people are so determined, and have a certain lifestyle where it does not really have any consequence for them, that—if anything—it makes them martyrs.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 58, Q120.]
However, we must absolutely not ignore the people who will be deterred, those who are not willing to go to prison, but who might not do anything illegal at a protest—those who just want to express their democratic right.
The title of Matt Parr’s report was “Getting the balance right?”, and it seems abundantly clear that the Government have not got the balance right with this legislation. I note that, with regard to lock-on, he was
“impressed by forces for the work they have done to make sure that PRTs”—
protester removal teams—
“are able to deal safely with lock-ons.”
He noted:
“It is vital that PRTs remain up to date with the rapidly evolving problems presented by lock-on devices.”
I agree, and much of the evidence from last week suggests that improved sharing of best practice, more resources and better training would help the police to deal with nuisance protests much better—without the need for this specific legislation.
Lord Rosser noted in the other place:
“The reality is that powers already exist for dealing with lock-ons. What we should be looking at is proper guidance, training and…improving our use of existing resources and specialist officers.”—[Official Report, House of Lords, 17 January 2022; Vol. 817, c. 1433.]
Matt Parr’s report also notes that most interviewees, who were junior police officers, did not wish to criminalise protest actions through the creation of a specific offence concerning locking on. With regard to his fifth proposal, Matt Parr noted explicitly that the purpose was not to create an offence of lock on during a protest. He did not call for that in his report.
The Government have brought back these overreaching clauses without any real evidence that they will work. Our witnesses were unable, quite rightly, to comment on the new clauses with any specificity. Elizabeth de Jong was unable to be specific about how the clauses would help. She noted:
“I can see a direct reference to locking on.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 33, Q59.]
Steve Griffiths stated:
“I am really here to talk about the impact of disruption, and I am probably not qualified to comment intensely on the Bill.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 34, Q60.]
He later noted:
“I cannot really talk about the policy itself”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 39, Q81.]
Those witnesses were right: they were present to define the problem as they saw it, and not to tell us that the legislation will work: that is our job. In the Opposition’s view it will not work. It is fair and understandable that the witnesses instinctively feel hopeful about something being done, but they did not claim that they had the expertise to know that.
The clauses, which make provision for the offences of locking on and going equipped to do so, are ill thought through and represent a knee-jerk reaction to events that have caused real disruption and annoyance—no one disputes that. There were criminal acts that were infinitely more disruptive to people and the police acted. There is no evidence that the clauses will act as a deterrent and it seems likely that they will be welcomed by the hard core of protestors who are willing to go to prison for their cause. The clauses will, however, deter those who come to protest peacefully, and that is our concern.
Kit Malthouse
Clause 2 supports the new offence of locking on created by clause 1, and specifically it creates a new criminal offence of going equipped to lock on and cause, or risk causing, serious disruption. During fast-moving protest situations, the police need the power to proactively prevent individuals from locking on to roads, buildings and objects, as we heard powerfully from the operational police commander during our evidence sessions. Therefore, along with the associated stop-and-search powers, which the Committee will scrutinise later, the new offence will allow the police to prevent lock ons before they occur, taking punitive action against those who attempt to lock on and deterring others from considering doing so.
Much has been made of criminalising people who happen to be carrying everyday items such as bike locks—the hon. Member for Croydon Central raised that—near a protest. To be clear, that will not be the case; the offence will be committed only when someone is carrying an object with the intention that it may be used by themselves or someone else in the course of, or in connection with, committing a lock-on offence as defined in clause 1. The police will need reasonable grounds for suspicion to arrest someone for that offence. There is a clear difference between a person pushing a bicycle past a protest and a person walking purposefully towards a gate with a lock in hand.
As the hon. Member for North East Fife knows from her policing experience, the offence of going equipped is well used by the police in England and Wales, and indeed in Scotland, in the prevention of burglary. I have had individuals arrested in my constituency who were going equipped to commit a burglary, and I am not aware of a plethora of plumbers, carpenters or builders with vans full of tools being arrested in my constituency on the basis of their going equipped, or having the capability to break into my home. The police are well able to adduce intention—and often that is tested in court—in charging someone with going equipped.
As we heard most powerfully from the operational police commander in our evidence session, the ability to stop and search, which we will consider later, and the ability to charge with going equipped would allow the police to operate in a situation where there would be less infringement on people’s right to protest, rather than more. He was strongly supportive.
Dr Huq
I remind the Minister that it is not just the Opposition who think that the locking on offence and the offence of preparing to lock on is a crazy idea. The last time the matter was subject to a vote in the Lords it was defeated massively, in a vote of 163 to 216. Has he got any new arguments for them, because the offence of being equipped to lock will never make it to a vote? Is there not a definition of insanity that is repeating the same action and expecting a different result? That saying is attributed to Einstein. I just wonder what new arguments the Minister will pull out of the bag for the Lords.
Kit Malthouse
As I understand it, one of the main arguments used in the House of Lords to vote against the measures in the Police, Crime, Sentencing and Courts Bill was that they did not feel that the matters had been properly scrutinised by the House of Commons. Those measures were introduced as amendments in the Lords, and therefore would not have gone through Committee here. So here we are, listening to their advice and subjecting the measures to democratic scrutiny by a forensic Committee of which she is a part, in the hope that the House can now the support them. We can then signal to the Lords that the intention of the democratic House is to strengthen the police’s ability to deal with this difficult and dangerous tactic.
Anyone found guilty of the offences will face a maximum penalty of an unlimited fine. I commend the clause to the Committee.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Ordered, That further consideration of the Bill be now adjourned.—(Scott Mann.)
Online Safety Bill (Ninth sitting)
Tuesday 14th June 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 June 2022 - (14 Jun 2022)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Chair
We are now sitting in public and the proceedings are being broadcast. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings.
Clause 40
Secretary of State’s powers of direction
John Nicolson (Ochil and South Perthshire) (SNP)
I beg to move amendment 84, in clause 40, page 38, line 5, leave out subsection (a).
This amendment would remove the ability of the Secretary of State to modify Ofcom codes of practice ‘for reasons of public policy’.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 41 stand part.
New clause 12—Secretary of State’s powers to suggest modifications to a code of practice—
“(1) The Secretary of State may on receipt of a code write within one month of that day to OFCOM with reasoned, evidence-based suggestions for modifying the code.
(2) OFCOM shall have due regard to the Secretary of State’s letter and must reply to the Secretary of State within one month of receipt.
(3) The Secretary of State may only write to OFCOM twice under this section for each code.
(4) The Secretary of State and OFCOM shall publish their letters as soon as reasonably possible after transmission, having made any reasonable redactions for public safety and national security.
(5) If the draft of a code of practice contains modifications made following changes arising from correspondence under this section, the affirmative procedure applies.”
This new clause gives the Secretary of State powers to suggest modifications to a code of practice, as opposed to the powers of direction proposed in clause 40.
John Nicolson
Amendment 84 is very simple: it removes one sentence—
“for reasons of public policy”.
Of all the correspondence that I have had on the Bill—there has been quite a lot—this is the clause that has most aggrieved the experts. A coalition of groups with a broad range of interests, including child safety, human rights, women and girls, sport and democracy, all agree that the Secretary of State is granted excessive powers in the Bill, and that it threatens the independence of the independent regulator. Businesses are also wary of this power, in part due to the uncertainty that it causes.
The reduction of Ministers’ powers under the Bill was advised by the Joint Committee on the draft Bill and by the Digital, Culture, Media and Sport Committee. I am sure that the two hon. Members on the Government Benches who sat on those Committees and added their names to their reports—the hon. Members for Watford and for Wolverhampton North East—will vote for the amendment. How could they possibly have put their names to the Select Committee report and the Joint Committee report and then just a few weeks later decide that they no longer support the very proposals that they had advanced?
Could the Minister inform us which special interest groups specifically have backed the Secretary of State’s public policy powers under the Bill? I am fascinated to know. Surely, all of us believe in public policy that is informed by expert evidence. If the Secretary of State cannot produce any experts at all who believe that the powers that she enjoys are appropriate or an advantage, or improve legislation, then we should not be proceeding in the way that we are. Now that I know that our proceedings are being broadcast live, I also renew my call to anyone watching who is in favour of these powers as they are to say so, because so far we have found no one who holds that position.
We should be clear about exactly what these powers do. Under clause 40, the Secretary of State can modify the draft codes of practice, thus allowing the Government a huge amount of power over the independent communications regulator. The Government have attempted to play down these powers by stating that they would be used only in exceptional circumstances. However, the legislation does not define what “exceptional circumstances” means, and it is far too nebulous a term for us to proceed under the current circumstances. Rather, a direction can reflect public policy. Will the Minister also clarify the difference between “public policy” and “government policy”, which was the wording in the draft Bill?
The regulator must not be politicised in this way. Regardless of the political complexion of the Government, when they have too much influence over what people can say online, the implications for freedom of speech are grave, especially when the content that they are regulating is not illegal. I ask the Minister to consider how he would feel if, rather than being a Conservative, the Culture Secretary came from among my friends on the Labour Benches. I would argue that that would be a significant improvement, but I imagine that the Minister would not. I see from his facial expression that that is the case.
There are ways to future-proof and enhance the transparency of Ofcom in the Bill that do not require the overreach of these powers. When we are allowing the Executive powers over the communications regulator, the protections must be absolute and iron-clad. As it stands, the Bill leaves leeway for abuse of these powers. No matter how slim a chance the Minister feels that there is of that, as parliamentarians we must not allow it. That is why I urge the Government to consider amendment 84.
As somebody who is new to these proceedings, I think it would be nice if, just for once, the Government listened to arguments and were prepared to accept them, rather than us going through this Gilbert and Sullivan pantomime where we advance arguments, we vote and we always lose. The Minister often says he agrees with us, but he still rejects whatever we say.
Alex Davies-Jones (Pontypridd) (Lab)
Good morning, Ms Rees; it is, as always, a pleasure to serve under your chairship.
Amendment 84 would remove the Secretary of State’s ability to modify Ofcom codes of practice
“for reasons of public policy”.
Labour agrees with the Carnegie UK Trust assessment of this: the codes are the fulcrum of the regulatory regime and it is a significant interference in Ofcom’s independence. Ofcom itself has noted that the “reasons of public policy” power to direct might weaken the regime. If Ofcom has undertaken a logical process, rooted in evidence, to arrive at a draft code, it is hard to see how a direction based on “reasons of public policy” is not irrational. That then creates a vulnerability to legal challenge.
On clause 40 more widely, the Secretary of State should not be able to give Ofcom specific direction on non-strategic matters. Ofcom’s independence in day-to-day decision making is paramount to preserving freedom of expression. Independence of media regulators is the norm in developed democracies. The UK has signed up to many international statements in that vein, including as recently as April 2022 at the Council of Europe. That statement says that
“media and communication governance should be independent and impartial to avoid undue influence on policy making, discriminatory treatment and preferential treatment of powerful groups, including those with significant political or economic power.”
The Bill introduces powers for the Secretary of State to direct Ofcom on internet safety codes. These provisions should immediately be removed. After all, in broadcasting regulation, Ofcom is trusted to make powerful programme codes with no interference from the Secretary of State. Labour further notes that although the draft Bill permitted this
“to ensure that the code of practice reflects government policy”,
clause 40 now specifies that any code may be required to be modified
“for reasons of public policy”.
Although that is more normal language, it is not clear what in practice the difference in meaning is between the two sets of wording. I would be grateful if the Minister could confirm what that is.
The same clause gives the Secretary of State powers to direct Ofcom, on national security or public safety grounds, in the case of terrorism or CSEA—child sexual exploitation and abuse—codes of practice. The Secretary of State might have some special knowledge of those, but the Government have not demonstrated why they need a power to direct. In the broadcasting regime, there are no equivalent powers, and the Secretary of State was able to resolve the case of Russia Today, on national security grounds, with public correspondence between the Secretary of State and Ofcom.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
Good morning, Ms Rees; it is a pleasure to serve under your chairmanship again. The SNP spokesman and the shadow Minister have already explained what these provisions do, which is to provide a power for the Secretary of State to make directions to Ofcom in relation to modifying a code of conduct. I think it is important to make it clear that the measures being raised by the two Opposition parties are, as they said, envisaged to be used only in exceptional circumstances. Of course the Government accept that Ofcom, in common with other regulators, is rightly independent and there should be no interference in its day-to-day regulatory decisions. This clause does not seek to violate that principle.
However, we also recognise that although Ofcom has great expertise as a regulator, there may be situations in which a topic outside its area of expertise needs to be reflected in a code of practice, and in those situations, it may be appropriate for a direction to be given to modify a code of conduct. A recent and very real example would be in order to reflect the latest medical advice during a public health emergency. Obviously, we saw in the last couple of years, during covid, some quite dangerous medical disinformation being spread—concerning, for example, the safety of vaccines or the “prudence” of ingesting bleach as a remedy to covid. There was also the purported and entirely false connection between 5G phone masts and covid. There were issues on public policy grounds—in this case, medical grounds—and it might have been appropriate to make sure that a code of conduct was appropriately modified.
Dean Russell (Watford) (Con)
It was mentioned earlier that some of us were on previous Committees that made recommendations more broadly that would perhaps be in line with the amendment. Since that time, there has been lots of discussion around this topic, and I have raised it with the Minister and colleagues. I feel reassured that there is a great need to keep the clause as is because of the fact that exceptional circumstances do arise. However, I would like reassurances that directions would be made only in exceptional circumstances and would not override the Ofcom policy or remit, as has just been discussed.
Chris Philp
I can provide my hon. Friend with that reassurance on the exceptional circumstances point. The Joint Committee report was delivered in December, approximately six months ago. It was a very long report—I think it had more than 100 recommendations. Of course, members of the Committee are perfectly entitled, in relation to one or two of those recommendations, to have further discussions, listen further and adjust their views if they individually see fit.
Chris Philp
Let me just finish this point and then I will give way. The shadow SNP spokesman, the hon. Member for Ochil and South Perthshire, asked about the Government listening and responding, and we accepted 66 of the Joint Committee’s recommendations —a Committee that he served on. We made very important changes to do with commercial pornography, for example, and fraudulent advertising. We accepted 66 recommendations, so it is fair to say we have listened a lot during the passage of this Bill. On the amendments that have been moved in Committee, often we have agreed with the amendments but the Bill has already dealt with the matter. I wanted to respond to those two points before giving way.
John Nicolson
I am intrigued, as I am sure viewers will be. What is the new information that has come forward since December that has resulted in the Minister believing that he must stick with this? He has cited new information and new evidence, and I am dying to know what it is.
Chris Philp
I am afraid it was not me that cited new information. It was my hon. Friend the Member for Watford who said he had had further discussions with Ministers. I am delighted to hear that he found those discussions enlightening, as I am sure they—I want to say they always are, but let us say they often are.
Dame Maria Miller (Basingstoke) (Con)
Before my hon. Friend moves on, can I ask a point of clarification? The hon. Member for Ochil and South Perthshire is right that this is an important point, so we need to understand it thoroughly. I think he makes a compelling argument about the exceptional circumstances. If Ofcom did not agree that a change that was being requested was in line with what my hon. Friend the Minister has said, how would it be able to discuss or, indeed, challenge that?
Chris Philp
My right hon. Friend raises a good question. In fact, I was about to come on to the safeguards that exist to address some of the concerns that have been raised this morning. Let me jump to the fourth of the safeguards, which in many ways is the most powerful and directly addresses my right hon. Friend’s question.
In fact, a change has been made. The hon. Member for Ochil and South Perthshire asked what changes had been made, and one important change—perhaps the change that my hon. Friend the Member for Watford found convincing—was the insertion of a requirement for the codes, following a direction, to go before Parliament and be voted on using the affirmative procedure. That is a change. The Bill previously did not have that in it. We inserted the use of the affirmative procedure to vote on a modified code in order to introduce extra protections that did not exist in the draft of the Bill that the Joint Committee commented on.
I hope my right hon. Friend the Member for Basingstoke will agree that if Ofcom had a concern and made it publicly known, Parliament would be aware of that concern before voting on the revised code using the affirmative procedure. The change to the affirmative procedures gives Parliament extra control. It gives parliamentarians the opportunity to respond if they have concerns, if third parties raise concerns, or if Ofcom itself raises concerns.
Kirsty Blackman (Aberdeen North) (SNP)
Before the Minister moves off the point about exceptional circumstances, it was the case previously that an amendment of the law resolution was always considered with Finance Bills. In recent years, that has stopped on the basis of it being exceptional circumstances because a general election was coming up. Then the Government changed that, and now they never table an amendment of the law resolution because they have decided that that is a minor change. Something has gone from being exceptional to being minor, in the view of this Government.
The Minister said that he envisions that this measure will be used only in exceptional circumstances. Can he commit himself to it being used only in exceptional circumstances? Can he give the commitment that he expects that it will be used only in exceptional circumstances, rather than simply envisioning that it will be used in such circumstances?
Chris Philp
I have made clear how we expect the clause to be used. I am slightly hesitant to be more categorical simply because I do not want to make comments that might unduly bind a future Secretary of State—or, indeed, a future Parliament, because the measure is subject to the affirmative procedure—even were that Secretary of State, heaven forbid, to come from a party other than mine. Circumstances might arise, such as the pandemic, in which a power such as this needs to be exercised for good public policy reasons—in that example, public health. I would not want to be too categorical, which the hon. Lady is inviting me to be, lest I inadvertently circumscribe the ability of a future Parliament or a future Secretary of State to act.
The power is also limited in the sense that, in relation to matters that are not to do with national security or terrorism or CSEA, the power to direct can be exercised only at the point at which the code is submitted to be laid before Parliament. That cannot be done at any point. The power cannot be exercised at a time of the Secretary of State’s choosing. There is one moment, and one moment only, when that power can be exercised.
I also want to make it clear that the power will not allow the Secretary of State to direct Ofcom to require a particular regulated service to take a particular measure. The power relates to the codes of practice; it does not give the power to intrude any further, beyond the code of practice, in the arena of regulated activity.
I understand the points that have been made. We have listened to the Joint Committee, and we have made an important change, which is that to the affirmative procedure. I hope my explanation leaves the Committee feeling that, following that change, this is a reasonable place for clauses 40 and 41 to rest. I respectfully resist amendment 84 and new clause 12, and urge the Committee to allow clauses 40 and 41 to stand part of the Bill.
Question put, That the amendment be made.
Chris Philp
Given that the clause is clearly uncontentious, I will be extremely brief.
Chris Philp
I can see that that is the most popular thing I have said during the entire session—when you say, “And finally,” in a speech and the crowd cheers, you know you are in trouble.
Regulated user-to-user and search services will have duties to keep records of their risk assessments and the measures they take to comply with their safety duties, whether or not those are the ones recommended in the codes of practice. They must also undertake a children’s access assessment to determine whether children are likely to access their service.
Clause 48 places a duty on Ofcom to produce guidance to assist service providers in complying with those duties. It will help to ensure a consistent approach from service providers, which is essential in maintaining a level playing field. Ofcom will have a duty to consult the Information Commissioner prior to preparing this guidance, as set out in clause 48(2), in order to draw on the expertise of the Information Commissioner’s Office and ensure that the guidance is aligned with wider data protection and privacy regulation.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clause 49
“Regulated user-generated content”, “user-generated content”, “news
publisher content”
Kirsty Blackman
I beg to move amendment 89, in clause 49, page 45, line 16, leave out subsection (e).
This amendment would remove the exemption for comments below news articles posted online.
The Chair
With this it will be convenient to discuss amendment 43, in clause 49, page 45, line 19, at end insert—
“(2A) Subsection (2)(e) does not apply in respect of a user-to-user service which is operated by an organisation which—
(a) is a relevant publisher (as defined in section 41 of the Crime and Courts Act 2013); and
(b) has an annual UK turnover in excess of £100 million.”
This amendment removes comments sections operated by news websites where the publisher has a UK turnover of more than £100 million from the exemption for regulated user-generated content.
Kirsty Blackman
Thank you, Ms Rees, for your hard work in chairing the Committee this morning; we really appreciate it. Amendment 89 relates to below-the-line comments on newspaper articles. For the avoidance of doubt, if we do not get amendment 89, I am more than happy to support the Labour party’s amendment 43, which has a similar effect but covers slightly fewer—or many fewer—organisations and places.
Below-the-line comments in newspaper articles are infamous. They are places that everybody fears to go. They are worse than Twitter. In a significant number of ways, below-the-line comments are an absolute sewer. I cannot see any reasonable excuse for them to be excluded from the Bill. We are including Twitter in the Bill; why are we not including below-the-line comments for newspapers? It does not make any sense to me; I do not see any logic.
We heard a lot of evidence relating to freedom of speech and a free press, and I absolutely, wholeheartedly agree with that. However, the amendment would not stop anyone writing a letter to the editor. It would not stop anyone engaging with newspapers in the way that they would have in the print medium. It would still allow that to happen; it would just ensure that below-the-line comments were subject to the same constraints as posts on Twitter. That is the entire point of amendment 89.
I do not think that I need to say much more, other than to add one more thing about the direction by comments to other, more radical and extreme pieces, or bits of information. It is sometimes the case that the comments on a newspaper article will direct people to even more extreme views. The newspaper article itself may be just slightly derogatory, while some of the comments may have links or references to other pieces, and other places on the internet where people can find a more radical point of view. That is exactly what happens on Twitter, and is exactly some of the stuff that we are trying to avoid—sending people down an extremist rabbit hole. I do not understand how the Minister thinks that the clause, which excludes below the line newspaper comments, is justifiable or acceptable.
Having been contacted by a number of newspapers, I understand and accept that some newspapers have moderation policies for their comments sections, but that is not strong enough. Twitter has a moderation policy, but that does not mean that there is actually any moderation, so I do not think that subjecting below-the-line comments to the provisions of the Bill is asking too much. It is completely reasonable for us to ask for this to happen, and I am honestly baffled as to why the Minister and the Government have chosen to make this exemption.
Alex Davies-Jones
Before I address the amendments, I will speak to clause 49 more broadly.
Labour has concerns about a number of subsections of the clause, including subsections (2), and (8) to (10)— commonly known as the news publisher content exemption, which I have spoken about previously. We understand that the intention of the exemption is to shield broadcasters and traditional newspaper publishers from the Bill’s regulatory effects, clause 50(2) defines a “recognised news publisher” as a regulated broadcaster or any other publisher that publishes news, has an office, and has a standards code and complaints process. There is no detail about the latter two requirements, thus enabling almost any news publishing enterprise to design its own code and complaints process, however irrational, and so benefit from the exemption. “News” is also defined broadly, and may include gossip. There remains a glaring omission, which amendment 43 addresses and which I will come to.
During an earlier sitting of the Committee, in response to comments made by my hon. Friend the Member for Liverpool, Walton as we discussed clause 2, the Minister claimed that
“The metaverse is a good example, because even though it did not exist when the structure of the Bill was conceived, anything happening in the metaverse is none the less covered by the Bill. Anything that happens in the metaverse that is illegal or harmful to children, falls into the category of legal but harmful to adults, or indeed constitutes pornography will be covered because the Bill is tech agnostic.”––[Official Report, Online Safety Public Bill Committee, 7 June 2022; c. 204.]
Clause 49 exempts one-to-one live aural communications from the scope of regulation. Given that much interaction in virtual reality is live aural communication, including between two users, it is hard to understand how that would be covered by the Bill.
There is also an issue about what counts as content. Most standard understandings would define “content” as text, video, images and audio, but one of the worries about interactions in VR is that behaviour such as physical violence will be able to be replicated virtually, with psychologically harmful effects. It is very unclear how that would be within the scope of the current Bill, as it does not clearly involve content, so could the Minister please address that point? As he knows, Labour advocates for a systems-based approach, and for risk assessments and systems to take place in a more upstream and tech-agnostic way than under the current approach. At present, the Bill would struggle to be expanded effectively enough to cover those risks.
Amendment 43 removes comments sections operated by news websites where the publisher has a UK turnover of more than £100 million from the exemption for regulated user-generated comment. If the Bill is to be effective in protecting the public from harm, the least it must accomplish is a system of accountability that covers all the largest platforms used by British citizens. Yet as drafted, the Bill would exempt some of the most popular social media platforms online: those hosted on news publisher websites, which are otherwise known as comments sections. The amendment would close that loophole and ensure that the comments sections of the largest newspaper websites are subject to the regime of regulation set out in the Bill.
Newspaper comments sections are no different from the likes of Facebook and Twitter, in that they are social media platforms that allow users to interact with one another. This is done through comments under stories, comments in response to other comments, and other interactions—for example, likes and dislikes on posts. In some ways, their capacity to cause harm to the public is even greater: for example, their reach is in many cases larger than even the biggest of social media platforms. Whereas there are estimated to be around 18 million users of Twitter in the UK, more than twice that number of British citizens access newspaper websites every month, and the harm perpetuated on those platforms is severe.
In July 2020, the rapper Wiley posted a series of antisemitic tweets, which Twitter eventually removed after an unacceptable delay of 48 hours, but under coverage of the incident in The Sun newspaper, several explicitly antisemitic comments were posted. Those comments contained holocaust denial and alleged a global Jewish conspiracy to control the world. They remained up and accessible to The Sun’s 7 million daily readers for the best part of a week. If we exempt comments sections from the Bill’s proposed regime and the duties that the Bill sets for platforms, we will send the message that that kind of vicious, damaging and harmful racism is acceptable.
Similarly, after an antisemitic attack in the German city of Halle, racists comments followed in the comments section under the coverage in The Sun. There are more examples: Chinese people being described as locusts and attacked with other racial slurs; 5G and Bill Gates conspiracy theories under articles on the Telegraph website; and of course, the most popular targets for online abuse, women in public life. Comments that described the Vice-President of the United States as a “rat” and “ho” appeared on the MailOnline. A female union leader has faced dozens of aggressive and abusive comments about her appearance, and many of such comments remain accessible on newspaper comments sections to this day. Some of them have been up for months, others for years.
Last week, the Committee was sent a letter from a woman who was the victim of comments section abuse, Dr Corinne Fowler. Dr Fowler said of the comments that she received:
“These comments contained scores of suggestions about how to kill or injure me. Some were general ideas, such as hanging, but many were gender specific, saying that I should be burnt at the stake like a witch. Comments focused on physical violence, one man advising that I should slapped hard enough to make my teeth chatter”.
She added:
“I am a mother: without me knowing, my son (then 12 years old) read these reader comments. He became afraid for my safety.”
Without the amendment, the Bill cannot do anything to protect women such as Dr Fowler and their families from this vile online abuse, because comments sections will be entirely out of scope of the Bill’s new regime and the duties designed to protect users.
As I understand it, two arguments have been made to support the exemption. First, it is argued that the complaints handlers for the press already deal with such content, but the handler for most national newspapers, the Independent Press Standards Organisation, will not act until a complaint is made. It then takes an average of six months for a complaint to be processed, and it cannot do anything if the comments have not been moderated. The Opposition do not feel that that is a satisfactory response to the seriousness of harms that we know to occur, and which I have described. IPSO does not even have a code to deal with cases of antisemitic abuse that appeared on the comments section of The Sun. IPSO’s record speaks for itself from the examples that I have given, and the many more, and it has proven to be no solution to the severity of harms that appear in newspaper comments sections.
The second argument for an exemption is that publishers are legally responsible for what appears on comments sections, but that is only relevant for illegal harms. For everything else, from disinformation to racial prejudice and abuse, regulation is needed. That is why it is so important that the Bill does the job that we were promised. To keep the public safe from harm online, comments sections must be covered under the Bill.
The amendment is a proportionate solution to the problem of comments section abuse. It would protect user’s freedom of expression and, given that it is subject to a turnover threshold, ensure that duties and other requirements do not place a disproportionate burden on smaller publishers such as locals, independents and blogs.
I have reams and reams and reams of examples from comments sections that all fall under incredibly harmful abuse and should be covered by the Bill. I could be here for hours reading them all out, and while I do not think that anybody in Committee would like me to, I urge Committee members to take a look for themselves at the types of comments under newspaper articles and ask themselves whether those comments should be covered by the terms of the Bill. I think they know the answer.
Kirsty Blackman
On a point of order, Ms Rees. Are we considering clause 49 now? I know that it is supposed to considered under the next set of amendments, but I just wondered, because I have separate comments to make on that clause that I did not make earlier because I spoke purely to the amendment.
The Chair
I did not want to stop Alex Davies-Jones in full flow. When we come to consideration of clause 49, I was going to ask for additional comments, but it is for the Committee to decide whether it is content with that, or would like the opportunity to elaborate on that clause now.
Kirsty Blackman
I am happy to speak on clause 49 now—I can see the Minister is nodding. I really appreciate it, Ms Rees, because I did not want to lose the opportunity to raise concerns about this matter. I have not tabled an amendment but I would appreciate it if the Minister gave consideration to my following comments.
My concern relates to subsection (5) of clause 49, which exempts one-to-one live aural communications in relation to user-to-user services. My concern relates to child sexual abuse and grooming. I am worried that exempting those one-to-one live aural communications allows bad actors, people who are out to attack children, a loophole to do that. We know that on games such as Fortnite, one-to-one aural communication happens.
I am not entirely sure how communication happens on Roblox and whether there is an opportunity for that there. However, we also know that a number of people who play online games have communication on Discord at the same time. Discord is incredibly popular, and we know that there is an opportunity for, and a prevalence of, grooming on there. I am concerned that exempting this creates a loophole for people to attack children in a way that the Minister is trying to prevent with the Bill. I understand why the clause is there but am concerned that the loophole is created.
Chris Philp
Let me start by addressing the substance of the two amendments and then I will answer one or two of the questions that arose in the course of the debate.
As Opposition Members have suggested, the amendments would bring the comments that appear below the line on news websites such as The Guardian, MailOnline or the BBC into the scope of the Bill’s safety duties. They are right to point out that there are occasions when the comments posted on those sites are extremely offensive.
There are two reasons why comments below BBC, Guardian or Mail articles are excluded from the scope of the Bill. First, the news media publishers—newspapers, broadcasters and their representative industry bodies—have made the case to the Government, which we are persuaded by, that the comments section below news articles is an integral part of the process of publishing news and of what it means to have a free press. The news publishers—both newspapers and broadcasters that have websites—have made that case and have suggested, and the Government have accepted, that intruding into that space through legislation and regulation would represent an intrusion into the operation of the free press.
Alex Davies-Jones
I am sorry, but I am having real trouble buying that argument. If the Minister is saying that newspaper comments sections are exempt in order to protect the free press because they are an integral part of it, why do we need the Bill in the first place? Social media platforms could argue in the same way that they are protecting free speech. They could ask, “Why should we regulate any comments on our social media platform if we are protecting free speech?” I am sorry; that argument does not wash.
Chris Philp
There is a difference between random individuals posting stuff on Facebook, as opposed to content generated by what we have defined as a “recognised news publisher”. We will debate that in a moment. We recognise that is different in the Bill. Although the Opposition are looking to make amendments to clause 50, they appear to accept that the press deserve special protection. Article 10 case law deriving from the European convention on human rights also recognises that the press have a special status. In our political discourse we often refer generally to the importance of the freedom of the press. We recognise that the press are different, and the press have made the case—both newspapers and broadcasters, all of which now have websites—that their reader engagement is an integral part of that free speech. There is a difference between that and individuals chucking stuff on Facebook outside of the context of a news article.
There is then a question about whether, despite that, those comments are still sufficiently dangerous that they merit regulation by the Bill—a point that the shadow Minister, the hon. Member for Pontypridd, raised. There is a functional difference between comments made on platforms such as Facebook, Twitter, TikTok, Snapchat or Instagram, and comments made below the line on a news website, whether it is The Guardian, the Daily Mail, the BBC—even The National. The difference is that on social media platforms, which are the principal topic of the Bill, there is an in-built concept of virality—things going viral by sharing and propagating content widely. The whole thing can spiral rapidly out of control.
Virality is an inherent design feature in social media sites. It is not an inherent design feature of the comments we get under the news website of the BBC, The Guardian or the Daily Mail. There is no way of generating virality in the same way as there is on Facebook and Twitter. Facebook and Twitter are designed to generate massive virality in a way that comments below a news website are not. The reach, and the ability for them to grow exponentially, is orders of magnitude lower on a news website comment section than on Facebook. That is an important difference, from a risk point of view.
Kim Leadbeater (Batley and Spen) (Lab)
This issue comes down to a fundamental point—are we looking at volume or risk? There is no difference between an individual—a young person in this instance—seeing something about suicide or self-harm on a Facebook post or in the comments section of a newspaper article. The volume—whether it goes viral or not—does not matter if that individual has seen that content and it has directed them to somewhere that will create serious harm and lead them towards dangerous behaviour. The volume is not the point.
Chris Philp
The hon. Lady raises an important philosophical question that underpins much of the Bill’s architecture. All the measures are intended to strike a balance. Where there are things that are at risk of leading to illegal activity, and things that are harmful to children, we are clamping down hard, but in other areas we are being more proportionate. For example, the legal but harmful to adult duties only apply to category 1 companies, and we are looking at whether that can be extended to other high-risk companies, as we debated earlier. In the earlier provisions that we debated, about “have regard to free speech”, there is a balancing exercise between the safety duties and free speech. A lot of the provisions in the Bill have a sense of balance and proportionality. In some areas, such as child sexual exploitation and abuse, there is no balance. We just want to stop that—end of story. In other areas, such as matters that are legal but harmful and touch on free speech, there is more of a balancing exercise.
In this area of news publisher content, we are again striking a balance. We are saying that the inherent harmfulness of those sites, owing to their functionality—they do not go viral in the same way—is much lower. There is also an interaction with freedom of the press, as I said earlier. Thus, we draw the balance in a slightly different way. To take the example of suicide promotion or self-harm content, there is a big difference between stumbling across something in comment No. 74 below a BBC article, versus the tragic case of Molly Russell—the 14-year-old girl whose Instagram account was actively flooded, many times a day, with awful content promoting suicide. That led her to take her own life.
I think the hon. Member for Batley and Spen would probably accept that there is a functional difference between a comment that someone has to scroll down a long way to find and probably sees only once, and being actively flooded with awful content. In having regard to those different arguments—the risk and the freedom of the press—we try to strike a balance. I accept that they are not easy balances to strike, and that there is a legitimate debate to be had on them. However, that is the reason that we have adopted this approach.
Kirsty Blackman
I have a question on anonymity. On social media there will be a requirement to verify users’ identities, so if somebody posts on Twitter that they want to lynch me, it is possible to find out who that is, provided they do not have an anonymous account. There is no such provision for newspaper comment sections, so I assume it would be much more difficult for the police to find them, or for me not to see anonymous comments that threaten my safety below the line of newspaper articles—comments that are just as harmful, which threaten my safety on social media. Can the Minister can convince me otherwise?
Chris Philp
The hon. Lady is correct in her analysis, I can confirm. Rather similar to the previous point, because of the interaction with freedom of the press—the argument that the newspapers and broadcasters have advanced—and because this is an inherently less viral environment, we have drawn the balance where we have. She is right to highlight a reasonable risk, but we have struck the balance in the way we have for that reason.
The shadow Minister, the hon. Member for Pontypridd, asked whether very harmful or illegal interactions in the metaverse would be covered or whether they have a metaphorical “get out of jail free” card owing to the exemption in clause 49(2)(d) for “one-to-one live aural communications”. In essence, she is asking whether, in the metaverse, if two users went off somewhere and interacted only with each other, that exemption would apply and they would therefore be outwith the scope of the Bill. I am pleased to tell her they would not, because the definition of live one-to-one aural communications goes from clause 49(2)(d) to clause 49(5), which defines “live aural communications”. Clause 49(5)(c) states that the exemption applies only if it
“is not accompanied by user-generated content of any other description”.
The actions of a physical avatar in the metaverse do constitute user-generated content of any other description. Owing to that fact, the exemption in clause 49(2)(d) would not apply to the metaverse.
I am happy to provide clarification on that. It is a good question and I hope I have provided an example of how, even though the metaverse was not conceived when the Bill was conceived, it does have an effect.
Kirsty Blackman
On that point, when it comes to definition of content, we have tabled an amendment about “any other content”. I am not convinced that the definition of content adequately covers what the Minister stated, because it is limited, does not include every possible scenario where it is user-generated and is not future-proofed enough. When we get to that point, I would appreciate it if the Minister would look at the amendment and ensure that what he intends is what happens.
Chris Philp
I am grateful to the hon. Lady for thinking about that so carefully. I look forward to her amendment. For my information, which clause does her amendment seek to amend?
Dean Russell
During the Joint Committee we were concerned about future-proofing. Although I appreciate it is not specifically included in the Bill because it is a House matter, I urge the setting up of a separate Online Safety Act committee that runs over time, so that it can continue to be improved upon and expanded, which would add value. We do not know what the next metaverse will be in 10 years’ time. However, I feel confident that the metaverse was included and I am glad that the Minister has confirmed that.
Chris Philp
I thank my hon. Friend for his service on the Joint Committee. I heard the representations of my right hon. Friend the Member for Basingstoke about a Joint Committee, and I have conveyed them to the higher authorities.
Kirsty Blackman
The amendment that the Minister is asking about is to clause 189, which states:
“‘content’ means anything communicated by means of an internet service, whether publicly or privately, including written material or messages, oral communications, photographs, videos, visual images, music and data of any description”.
It is amendment 76 that, after “including”, would insert “but not limited to”, in order that the Bill is as future-proofed as it can be.
Chris Philp
I thank the hon. Lady for her rapid description of that amendment. We will come to clause 189 in due course. The definition of “content” in that clause is,
“anything communicated by means of an internet service”,
which sounds like it is quite widely drafted. However, we will obviously debate this issue properly when we consider clause 189.
The remaining question—
Dame Maria Miller
I intervene rather than making a subsequent substantive contribution because I am making a very simple point. My hon. Friend the Minister is making a really compelling case about the need for freedom of speech and the need to protect it within the context of newspapers online. However, could he help those who might be listening to this debate today to understand who is responsible if illegal comments are made on newspaper websites? I know that my constituents would be concerned about that, not particularly if illegal comments were made about a Member of Parliament or somebody else in the public eye, but about another individual not in the public eye.
What redress would that individual have? Would it be to ask the newspaper to take down that comment, or would it be that they could find out the identity of the individual who made the comment, or would it be that they could take legal action? If he could provide some clarity on that, it might help Committee members to understand even further why he is taking the position that he is taking.
Chris Philp
I thank my right hon. Friend for that intervention. First, clearly if something illegal is said online about someone, they would have the normal redress to go to the police and the police could seek to exercise their powers to investigate the offence, including requesting the company that hosts the comments—in this case, it would be a newspaper’s or broadcaster’s website—to provide any relevant information that might help to identify the person involved; they might have an account, and if they do not they might have a log-on or IP address. So, the normal criminal investigatory procedures would obviously apply.
Secondly, if the content was defamatory, then—I realise that only people like Arron Banks can sue for libel, but there is obviously civil recourse for libel. And I think there are powers in the civil procedure rules that allow for court orders to be made that require organisations, such as news media websites, to disclose information that would help to identify somebody who is a respondent in a civil case.
Thirdly, there are obviously the voluntary steps that the news publisher might take to remove content. News publishers say that they do that; obviously, their implementation, as we know, is patchy. Nevertheless, there is that voluntary route.
Regarding any legal obligation that may fall on the shoulders of the news publisher itself, I am not sure that I have sufficient legal expertise to comment on that. However, I hope that those first three areas of redress that I have set out give my right hon. Friend some assurance on this point.
Finally, I turn to a question asked by the hon. Member for Aberdeen North. She asked whether the exemption for “one-to-one live aural communications”, as set out in clause 49(2)(d), could inadvertently allow grooming or child sexual exploitation to occur via voice messages that accompany games, for example. The exemption is designed to cover what are essentially phone calls such as Skype conversations—one-to-one conversations that are essentially low-risk.
We believe that the Bill contains other duties to ensure that services are designed to reduce the risk of grooming and to address risks to children, if those risks exist, such as on gaming sites. I would be happy to come back to the hon. Lady with a better analysis and explanation of where those duties sit in the Bill, but there are very strong duties elsewhere in the Bill that impose those obligations to conduct risk assessments and to keep children safe in general. Indeed, the very strongest provisions in the Bill are around stopping child sexual exploitation and abuse, as set out in schedule 6.
Finally, there is a power in clause 174(1) that allows us, as parliamentarians and the Government, to repeal this exemption using secondary legislation. So, if we found in the future that this exemption caused a problem, we could remove it by passing secondary legislation.
Kirsty Blackman
That is helpful for understanding the rationale, but in the light of how people communicate online these days, although exempting telephone conversations makes sense, exempting what I am talking about does not. I would appreciate it if the Minister came back to me on that, and he does not have to give me an answer now. It would also help if he explained the difference between “aural” and “oral”, which are mentioned at different points in the Bill.
Chris Philp
I will certainly come back with a more complete analysis of the point about protecting children—as parents, that clearly concerns us both. The literal definitions are that “aural” means “heard” and “oral” means “spoken”. They occur in different places in the Bill.
This is a difficult issue and legitimate questions have been raised, but as I said in response to the hon. Member for Batley and Spen, in this area as in others, there are balances to strike and different considerations at play—freedom of the press on the one hand, and the level of risk on the other. I think that the clause strikes that balance in an appropriate way.
Question put, That the amendment be made.
Kim Leadbeater
I beg to move amendment 107, in clause 50, page 46, line 46, leave out from end to end of clause and insert
“is a member of an approved regulator (as defined in section 42 of the Crime and Courts Act 2013).”
This amendment expands the definition of a recognised news publisher to incorporate any entity that is a member of an approved regulator.
The primary purpose of the Bill is to protect social media users from harm, and it will have failed if it does not achieve that. Alongside that objective, the Bill must protect freedom of expression and, in particular, the freedom of the press, which I know we are all committed to upholding and defending. However, in evaluating the balance between freedom of the press and the freedom to enjoy the digital world without encountering harm, the Bill as drafted has far too many loopholes and risks granting legal protection to those who wish to spread harmful content and disinformation in the name of journalism.
Amendment 107 will address that imbalance and protect the press and us all from harm. The media exemption in the Bill is a complete exemption, which would take content posted by news publishers entirely out of the scope of platforms’ legal duties to protect their users. Such a powerful exemption must be drafted with care to ensure it is not open to abuse. However, the criteria that organisations must meet to qualify for the exemption, which are set out in clause 50, are loose and, in some cases, almost meaningless. They are open to abuse, they are ambiguous and they confer responsibility on the platforms themselves to decide which publishers meet the Bill’s criteria and which do not.
In evidence that we heard recently, it was clear that the major platforms do not believe it is a responsibility they should be expected to bear, nor do they have the confidence or feel qualified to do so. Furthermore, David Wolfe, chairman of the Press Recognition Panel, has advised that the measure represents a threat to press freedom. I agree.
Opening the gates for any organisation to declare themselves a news publisher by obtaining a UK address, jotting down a standards code on the back of an envelope and inviting readers to send an email if they have any complaints is not defending the press; it is opening the profession up to abuse and, in the long term, risks weakening its rights and protections.
Let us discuss those who may wish to exploit that loophole and receive legal protection to publish harmful content. A number of far-right websites have made white supremacist claims and praised Holocaust deniers. Those websites already meet several of the criteria for exemption and could meet the remaining criteria overnight. The internet is full of groups that describes themselves as news publishers but distribute profoundly damaging and dangerous material designed to promote extremist ideologies and stir up hatred.
We can all think of high-profile individuals who use the internet to propagate disinformation, dangerous conspiracy theories and antisemitic, Islamophobic, homophobic or other forms of abuse. They might consider themselves journalists, but the genuine professionals whose rights we want to protect beg to differ. None of those individuals should be free to publish harmful material as a result of exemptions that are designed for quite a different purpose. Is it really the Government’s intention that any organisation that meets their loose criteria, as defined in the Bill, should be afforded the sacrosanct rights and freedoms of the press that we all seek to defend?
I turn to disinformation, and to hostile state actors who wish to sow the seeds of doubt and division in our politics and our civic life. The Committee has already heard that Russia Today is among those expected to benefit from the exemption. I have a legal opinion from Tamsin Allen, a senior media lawyer at Bindmans LLP, which notes that,
“were the bill to become law in its present form, Russia Today would benefit from the media exemption. The exemption for print and online news publications is so wide that it would encompass virtually all publishers with multiple contributors, an editor and some form of complaints procedure and standards code, no matter how inadequate. I understand that RT is subject to a standards code in Russia and operates a complaints procedure. Moreover, this exemption could also apply to a publisher promoting hate or violence, providing it met the (minimal) standards set out in the bill and constituted itself as a ‘news’ or ‘gossip’ publication. The only such publications which would not be exempt are those published by organisations proscribed under the Terrorism Act.”
If hostile foreign states can exploit this loophole in the Bill to spread disinformation to social media users in the UK, that is a matter of national security and a threat to our freedom and open democracy. The requirement to have a UK address offers little by way of protection. International publishers spreading hate, disinformation or other forms of online harm could easily set up offices in the UK to qualify for this exemption and instantly make the UK the harm capital of the world. For those reasons, the criteria must change.
We heard from several individuals in evidence that the exemption should be removed entirely from the Bill, but we are committed to freedom of the press as well as providing proper protections from harm. Instead of removing the exemption, I propose a change to the qualifying criteria to ensure that credible publishers can access it while extremist and harmful publishers cannot.
My amendment would replace the convoluted list of requirements with a single and simple requirement for the platforms to follow and adhere to: that all print and online media that seeks to benefit from the exemption should be independently regulated under the royal charter provisions that this House has already legislated for. If, as the Bill already says, broadcast media should be defined in this way, why not print media too? Unlike the Government’s criteria, the likes of Russia Today, white supremacist blogs and other deeply disturbing extremist publications simply could not satisfy this requirement. If they were ever to succeed in signing up to such a regulator, they would swiftly be expelled for repeated standards breaches.
Chris Philp
I thank the hon. Member for Batley and Spen for her speech. There is agreement across the House, in this Committee and in the Joint Committee that the commitment to having a free press in this country is extremely important. That is why recognised news publishers are exempted from the provisions of the Bill, as the hon. Lady said.
The clause, as drafted, has been looked at in some detail over a number of years and debated with news publishers and others. It is the best attempt that we have so far collectively been able to come up with to provide a definition of a news publisher that does not infringe on press freedom. The Government are concerned that if the amendment were adopted, it would effectively require news publishers to register with a regulator in order to benefit from the exemption. That would constitute the imposition of a mandatory press regulator by the back door. I put on record that this Government do not support any kind of mandatory or statutory press regulation, in any form, for reasons of freedom of the press. Despite what has been said in previous debates, we think to do that would unreasonably restrict the freedom of the press in this country.
While I understand its intention, the amendment would drive news media organisations, both print and broadcast, into the arms of a regulator, because they would have to join one in order to get the exemption. We do not think it is right to create that obligation. We have reached the philosophical position that statutory or mandatory regulation of the press is incompatible with press freedom. We have been clear about that general principle and cannot accept the amendment, which would violate that principle.
In relation to hostile states, such as Russia, I do not think anyone in the UK press would have the slightest objection to us finding ways to tighten up on such matters. As I have flagged previously, thought is being given to that issue, but in terms of the freedom of the domestic press, we feel very strongly that pushing people towards a regulator is inappropriate in the context of a free press.
The characterisation of these provisions is a little unfair, because some of the requirements are not trivial. The requirement in 50(2)(f) is that there must be a person—I think it includes a legal person as well as an actual person—who has legal responsibility for the material published, which means that, unlike with pretty much everything that appears on the internet, there is an identified person who has legal responsibility. That is a very important requirement. Some of the other requirements, such as having a registered address and a standards code, are relatively easy to meet, but the point about legal responsibility is very important. For that reason, I respectfully resist the amendment.
Kim Leadbeater
I will not push the amendment to a vote, but it is important to continue this conversation, and I encourage the Minister to consider the matter as the Bill proceeds. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
John Nicolson
I beg to move amendment 86, in clause 50, page 47, line 3, after “material” insert—
“or special interest news material”.
The Chair
With this it will be convenient to discuss the following:
Amendment 87, in clause 50, page 47, line 28, leave out the first “is” and insert—
“and special interest news material are”.
Amendment 88, in clause 50, page 47, line 42, at end insert—
““special interest news material” means material consisting of news or information about a particular pastime, hobby, trade, business, industry or profession.”
John Nicolson
In its current form, the Online Safety Bill states that platforms do not have any duties relating to content from recognised media outlets and new publishers, and the outlets’ websites are also exempt from the scope of the Bill. However, the way the Bill is drafted means that hundreds of independently regulated specialist publishers’ titles will be excluded from the protections afforded to recognised media outlets and news publishers. This will have a long-lasting and damaging effect on an indispensable element of the UK’s media ecosystem.
Specialist publishers provide unparalleled insights into areas that broader news management organisations will likely not analyse, and it would surely be foolish to dismiss and damage specialist publications in a world where disinformation is becoming ever more prevalent. The former Secretary of State, the right hon. Member for Maldon (Mr Whittingdale), also raised this issue on Second Reading, where he stated that specialist publishers
“deserve the same level of protection.”—[Official Report, 19 April 2022; Vol. 712, c. 109.]
Part of the rationale for having the news publishers exemption in the Bill is that it means that the press will not be double-regulated. Special interest material is already regulated, so it should benefit from the same exemptions.
Chris Philp
For the sake of clarity, and for the benefit of the Committee and those who are watching, could the hon. Gentleman say a bit more about what he means by specialist publications and perhaps give one or two examples to better illustrate his point?
John Nicolson
I would be delighted to do so. I am talking about specific and occasionally niche publications. Let us take an example. Gardeners’ World is not exactly a hotbed of online harm, and nor is it a purveyor of disinformation. It explains freely which weeds to pull up and which not to, without seeking to confuse people in any way. Under the Bill, however, such publications will be needlessly subjected to rules, creating a regulatory headache for the sector. This is a minor amendment that will help many businesses, and I would be interested to hear from the Minister why the Government will not listen to the industry on this issue.
Chris Philp
I thank the hon. Member for Ochil and South Perthshire for his amendment and his speech. I have a couple of points to make in reply. The first is that the exemption is about freedom of the press and freedom of speech. Clearly, that is most pertinent and relevant in the context of news, information and current affairs, which is the principal topic of the exemption. Were we to expand it to cover specialist magazines—he mentioned Gardeners’ World—I do not think that free speech would have the same currency when it comes to gardening as it would when people are discussing news, current affairs or public figures. The free speech argument that applies to newspapers, and to other people commenting on current affairs or public figures, does not apply in the same way to gardening and the like.
That brings me on to a second point. Only a few minutes ago, the hon. Member for Batley and Spen drew the Committee’s attention to the risks inherent in the clause that a bad actor could seek to exploit. It was reasonable of her to do so. Clearly, however, the more widely we draft the clause—if we include specialist publications such as Gardeners’ World, whose circulation will no doubt soar on the back of this debate—the greater the risk of bad actors exploiting the exemption.
My third point is about undue burdens being placed on publications. To the extent that such entities count as social media platforms—in-scope services—the most onerous duties under the Bill apply only to category 1 companies, or the very biggest firms such as Facebook and so on. The “legal but harmful” duties and many of the risk assessment duties would not apply to many organisations. In fact, I think I am right to say that if the only functionality on their websites is user comments, they would in any case be outside the scope of the Bill. I have to confess that I am not intimately familiar with the functionality of the Gardeners’ World website, but there is a good chance that if all it does is to provide the opportunity to post comments and similar things, it would be outside the scope of the Bill anyway, because it does not have the requisite functionality.
I understand the point made by the hon. Member for Ochil and South Perthshire, we will, respectfully, resist the amendment for the many reasons I have given.
John Nicolson
No, I will let that particular weed die in the bed. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
Briefly, as with earlier clauses, the Labour party recognises the challenge in finding the balance between freedom of expression and keeping people safe online. Our debate on the amendment has illustrated powerfully that the exemptions as they stand in the Bill are hugely flawed.
First, the exemption is open to abuse. Almost any organisation could develop a standards code and complaints process to define itself as a news publisher and benefit from the exemption. Under those rules, as outlined eloquently by my hon. Friend the Member for Batley and Spen, Russia Today already qualifies, and various extremist publishers could easily join it. Organisations will be able to spread seriously harmful content with impunity—I referred to many in my earlier contributions, and I have paid for that online.
Secondly, the exemption is unjustified, as we heard loud and clear during the oral evidence sessions. I recall that Kyle from FairVote made that point particularly clearly. There are already rigorous safeguards in the Bill to protect freedom of expression. The fact that content is posted by a news provider should not itself be sufficient reason to treat such content differently from that which is posted by private citizens.
Furthermore, quality publications with high standards stand to miss out on the exemption. The Minister must also see the lack of parity in the broadcast media space. In order for broadcast media to benefit from the exemption, they must be regulated by Ofcom, and yet there is no parallel stipulation for non-broadcast media to be regulated in order to benefit. How is that fair? For broadcast media, the requirement to be regulated by Ofcom is simple, but for non-broadcast media, the series of requirements are not rational, exclude many independent publishers and leave room for ambiguity.
Kirsty Blackman
I have a couple of questions that were probably too long for interventions. The Minister said that if comments on a site are the only user-generated content, they are not in scope. It would be really helpful if he explained what exactly he meant by that. We were talking about services that do not fall within the definition of “recognised news publishers”, because we were trying to add them to that definition. I am not suggesting that the Minister is wrong in any way, but I do not understand where the Bill states that those comments are excluded, and how this all fits together.
Chris Philp
I made general comments about clause 50 during the debate on amendment 107; I will not try the Committee’s patience by repeating them, but I believe that in them, I addressed some of the issues that the shadow Minister, the hon. Member for Pontypridd, has raised.
On the hon. Member for Aberdeen North’s question about where the Bill states that sites with limited functionality—for example, functionality limited to comments alone—are out of scope, paragraph 4(1) of schedule 1 states that
“A user-to-user service is exempt if the functionalities of the service are limited, such that users are able to communicate by means of the service only in the following ways—
(a) posting comments or reviews relating to provider content;
(b) sharing such comments or reviews on a different internet service”.
Clearly, services where a user can share freely are in scope, but if they cannot share directly—if they can only share via another service, such as Facebook—that service is out of scope. This speaks to the point that I made to the hon. Member for Batley and Spen in a previous debate about the level of virality, because the ability of content to spread, proliferate, and be forced down people’s throats is one of the main risks that we are seeking to address through the Bill. I hope that paragraph 4(1) of schedule 1 is of assistance, but I am happy to discuss the matter further if that would be helpful.
Question put and agreed to.
Clause 50 accordingly ordered to stand part of the Bill.
Clause 51
“Search content”, “search results” etc
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
Labour does not oppose the intention of the clause. It is important to define “search content” in order to understand the responsibilities that fall within search services’ remits.
However, we have issues with the way that the Bill treats user-to-user services and search services differently when it comes to risk-assessing and addressing legal harm—an issue that we will come on to when we debate schedule 10. Although search services rightly highlight that the content returned by a search is not created or published by them, the algorithmic indexing, promotion and search prompts provided in search bars are fundamentally their responsibility. We do, however, accept that over the past 20 years, Google, for example, has developed mechanisms to provide a safer search experience for users while not curtailing access to lawful information. We also agree that search engines are critical to the proper functioning of the world wide web; they play a uniquely important role in facilitating access to the internet, and enable people to access, impart, and disseminate information.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clause 52
“Illegal content” etc
Alex Davies-Jones
I beg to move amendment 61, in clause 52, page 49, line 5, at end insert—
“(4A) An offence referred to in subsection (4) is deemed to have occurred if it would be an offence under the law of the United Kingdom regardless of whether or not it did take place in the United Kingdom.”
This amendment brings offences committed overseas within the scope of relevant offences for the purposes of defining illegal content.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
That schedules 5 and 6 be the Fifth and Sixth schedules to the Bill.
Alex Davies-Jones
With your permission, Ms Rees, I will speak to clause 52 before coming to amendment 61. Illegal content is defined in clause 52(2) as
“content that amounts to a relevant offence.”
However, as the Minister will know from representations from Carnegie UK to his Department—we share its concerns—the illegal and priority illegal regimes may not be able to operate as intended. The Bill requires companies to decide whether content “amounts to” an offence, with limited room for movement. We share concerns that that points towards decisions on an item-by-item basis; it means detecting intent for each piece of content. However, such an approach does not work at the scale on which platforms operate; it is bad regulation and poor risk management.
There seem to be two different problems relating to the definition of “illegal content” in clause 52. The first is that it is unclear whether we are talking about individual items of content or categories of content—the word “content” is ambiguous because it can be singular or plural—which is a problem for an obligation to design and run a system. Secondly, determining when an offence has taken place will be complex, especially bearing in mind mens rea and defences, so the providers are not in a position to get it right.
The use of the phrase “amounts to” in clause 52(2) seems to suggest that platforms will be required to identify accurately, in individual cases, where an offence has been committed, without any wriggle room drafted in, unlike in the draft Bill. As the definition now contains no space for error either side of the line, it could be argued that there are more incentives to avoid false negatives than false positives—providers can set higher standards than the criminal law—and that leads to a greater risk of content removal. That becomes problematic, because it seems that the obligation under clause 9(3) is then to have a system that is accurate in all cases, whereas it would be more natural to deal with categories of content. This approach seems not to be intended; support for that perspective can be drawn from clause 9(6), which recognises that there is a distinction between categories of content and individual items, and that the application of terms of service might specifically have to deal with individual instances of content. Critically, the “amounts to” approach cannot work in conjunction with a systems-based approach to harm reduction. That leaves victims highly vulnerable.
This problem is easily fixed by a combination of reverting to the draft Bill’s language, which required reasonableness, and using concepts found elsewhere in the Bill that enable a harm mitigation system to operate for illegal content. We also remind the Minister that Ofcom raised this issue in the evidence sessions. I would be grateful if the Minister confirmed whether we can expect a Government amendment to rectify this issue shortly.
More broadly, as we know, priority illegal content, which falls within illegal content, includes,
“(a) terrorism content,
(b) CSEA content, and
(c) content that amounts to an offence specified in Schedule 7”,
as set out in clause 52(7). Such content attracts a greater level of scrutiny and regulation. Situations in which user-generated content will amount to “a relevant offence” are set out in clause 52(3). Labour supports the inclusion of a definition of illegal content as outlined in the grouping; it is vital that service providers and platforms have a clear indication of the types of content that they will have a statutory duty to consider when building, or making changes to the back end of, their business models.
We have also spoken about the importance of parity between the online and offline spaces—what is illegal offline must be illegal online—so the Minister knows we have more work to do here. He also knows that we have broad concerns around the omissions in the Bill. While we welcome the inclusion of terrorism and child sexual exploitation content as priority illegal content, there remain gaps in addressing violence against women and girls content, which we all know is hugely detrimental to many online.
The UK Government stated that their intention for the Online Safety Bill was to make the UK the safest place to be online in the world, yet the Bill does not mention online gender-based violence once. More than 60,000 people have signed the Glitch and End Violence Against Women Coalition’s petition calling for women and girls to be included in the Bill, so the time to act is now. We all have a right to not just survive but thrive, engage and play online, and not have our freedom of expression curtailed or our voices silenced by perpetrators of abuse. The online space is just as real as the offline space. The Online Safety Bill is our opportunity to create safe digital spaces.
The Bill must name the problem. Violence against women and girls, particularly those who have one or multiple protected characteristics, is creating harm and inequality online. We must actively and meaningfully name this issue and take an intersectional approach to ending online abuse to ensure that the Bill brings meaningful change for all women. We also must ensure that the Bill truly covers all illegal content, whether it originated in the UK or not.
Amendment 61 brings offences committed overseas within the scope of relevant offences for the purposes of defining illegal content. The aim of the amendment is to clarify whether the Bill covers content created overseas that would be illegal if what was shown in the content took place in the UK. For example, animal abuse and cruelty content is often filmed abroad. The same can be said for dreadful human trafficking content and child sexual exploitation. The optimal protection would be if the Bill’s definition of illegal content covered matter that would be illegal in either the UK or the country it took place in, regardless of whether it originated in the UK.
Kirsty Blackman
I do not intend to make a speech, but I want to let the hon. Lady know that we wholeheartedly support everything that she has said on the clause and amendment 61.
Alex Davies-Jones
I am grateful for the hon. Member’s contribution, and for her support for the amendment and our comments on the clause.
The Bill should be made clearer, and I would appreciate an update on the Minister’s assessment of the provisions in the Bill. Platforms and service providers need clarity if they are to take effective action against illegal content. Gaps in the Bill give rise to serious questions about the overwhelming practical challenges of the Bill. None of us wants a two-tier internet, in which user experience and platforms’ responsibilities in the UK differ significantly from those in the rest of the world. Clarifying the definition of illegal content and acknowledging the complexity of the situation when content originates abroad are vital if this legislation is to tackle wide-ranging, damaging content online. That is a concern I raised on Second Reading, and a number of witnesses reiterated it during the oral evidence sessions. I remind the Committee of the comments of Kevin Bakhurst from Ofcom, who said:
“We feel it is really important—hopefully this is something the Committee can contribute to—that the definition of ‘illegal content’ is really clear for platforms, and particularly the area of intent of illegality, which at the moment might be quite tricky for the platforms to pick up on.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 8, Q7.]
That has been reiterated by myriad other stakeholders, so I would be grateful for the Minister’s comments.
Dame Maria Miller
I rise to speak on clause 52 stand part, particularly —the Minister will not be surprised—the element in subsection (4)(c) around the offences specified in schedule 7. The debate has been very wide ranging throughout our sittings. It is extraordinary that we need a clause defining what is illegal. Presumably, most people who provide goods and services in this country would soon go out of business if they were not knowledgeable about what is illegal. The Minister is helping the debate very much by setting out clearly what is illegal, so that people who participate in the social media world are under no illusion as to what the Government are trying to achieve through this legislation.
The truth is that the online world has unfolded without a regulatory framework. New offences have emerged, and some of them are tackled in the Bill, particularly cyber-flashing. Existing offences have taken on a new level of harm for their victims, particularly when it comes to taking, making and sharing intimate images without consent. As the Government have already widely acknowledged, because the laws on that are such a patchwork, it is difficult for the enforcement agencies in this country to adequately protect the victims of that heinous crime, who are, as the Minister knows, predominately women.
Chris Philp
I thank right hon. and hon. Members who have participated in the debate on this extremely important clause. It is extremely important because the Bill’s strongest provisions relate to illegal content, and the definition of illegal content set out in the clause is the starting point for those duties.
A number of important questions have been asked, and I would like to reply to them in turn. First, I want to speak directly about amendment 61, which was moved by the shadow Minister and which very reasonably and quite rightly asked the question about physically where in the world a criminal offence takes place. She rightly said that in the case of violence against some children, for example, that may happen somewhere else in the world but be transmitted on the internet here in the United Kingdom. On that, I can point to an existing provision in the Bill that does exactly what she wants. Clause 52(9), which appears about two thirds of the way down page 49 of the Bill, states:
“For the purposes of determining whether content amounts to an offence, no account is to be taken of whether or not anything done in relation to the content takes place in any part of the United Kingdom.”
What that is saying is that it does not matter whether the act of concern takes place physically in the United Kingdom or somewhere else, on the other side of the world. That does not matter in looking at whether something amounts to an offence. If it is criminal under UK law but it happens on the other side of the world, it is still in scope. Clause 52(9) makes that very clear, so I think that that provision is already doing what the shadow Minister’s amendment 61 seeks to do.
The shadow Minister asked a second question about the definition of illegal content, whether it involves a specific act and how it interacts with the “systems and processes” approach that the Bill takes. She is right to say that the definition of illegal content applies item by item. However, the legally binding duties in the Bill, which we have already debated in relation to previous clauses, apply to categories of content and to putting in place “proportionate systems and processes”—I think that that is the phrase used. Therefore, although the definition is particular, the duty is more general, and has to be met by putting in place systems and processes. I hope that my explanation provides clarification on that point.
The shadow Minister asked another question about the precise definitions of how the platforms are supposed to decide whether content meets the definition set out. She asked, in particular, questions about how to determine intent—the mens rea element of the offence. She mentioned that Ofcom had had some comments in that regard. Of course, the Government are discussing all this closely with Ofcom, as people would expect. I will say to the Committee that we are listening very carefully to the points that are being made. I hope that that gives the shadow Minister some assurance that the Government’s ears are open on this point.
The next and final point that I would like to come to was raised by all speakers in the debate, but particularly by my right hon. Friend the Member for Basingstoke, and is about violence against women and girls—an important point that we have quite rightly debated previously and come to again now. The first general point to make is that clause 52(4)(d) makes it clear that relevant offences include offences where the intended victim is an individual, so any violence towards and abuse of women and girls is obviously included in that.
As my right hon. Friend the Member for Basingstoke and others have pointed out, women suffer disproportionate abuse and are disproportionately the victims of criminal offences online. The hon. Member for Aberdeen North pointed out how a combination of protected characteristics can make the abuse particularly impactful—for example, if someone is a woman and a member of a minority. Those are important and valid points. I can reconfirm, as I did in our previous debate, that when Ofcom drafts the codes of practice on how platforms can meet their duties, it is at liberty to include such considerations. I echo the words spoken a few minutes ago by my right hon. Friend the Member for Basingstoke: the strong expectation across the House—among all parties here—is that those issues will be addressed in the codes of practice to ensure that those particular vulnerabilities and those compounded vulnerabilities are properly looked at by social media firms in discharging those duties.
My right hon. Friend also made points about intimate image abuse when the intimate images are made without the consent of the subject—the victim, I should say. I would make two points about that. The first relates to the Bill and the second looks to the future and the work of the Law Commission. On the Bill, we will come in due course to clause 150, which relates to the new harmful communications offence, and which will criminalise a communication—the sending of a message—when there is a real and substantial risk of it causing harm to the likely audience and there is intention to cause harm. The definition of “harm” in this case is psychological harm amounting to at least serious distress.
Clearly, if somebody is sending an intimate image without the consent of the subject, it is likely that that will cause harm to the likely audience. Obviously, if someone sends a naked image of somebody without their consent, that is very likely to cause serious distress, and I can think of few reasons why somebody would do that unless it was their intention, meaning that the offence would be made out under clause 150.
My right hon. Friend has strong feelings, which I entirely understand, that to make the measure even stronger the test should not involve intent at all, but should simply be a question of consent. Was there consent or not? If there was no consent, an offence would have been committed, without needing to go on to establish intention as clause 150 provides. As my right hon. Friend has said, Law Commission proposals are being developed. My understanding is that the Ministry of Justice, which is the Department responsible for this offence, is expecting to receive a final report, I am told, over the summer. It would then clearly be open to Parliament to legislate to put the offence into law, I hope as quickly as possible.
Once that happens, through whichever legislative vehicle, it will have two implications. First, the offence will automatically and immediately be picked up by clause 52(4)(d) and brought within the scope of the Bill because it is an offence where the intended victim is an individual. Secondly, there will be a power for the Secretary of State and for Parliament, through clause 176, I think—I am speaking from memory; yes, it is clause 176, not that I have memorised every clause in the Bill—via statutory instrument not only to bring the offence into the regular illegal safety duties, but to add it to schedule 7, which contains the priority offences.
Once that intimate image abuse offence is in law, via whichever legislative vehicle, that will have that immediate effect with respect to the Bill, and by statutory instrument it could be made a priority offence. I hope that gives my right hon. Friend a clear sense of the process by which this is moving forward.
Dame Maria Miller
I thank the Minister for such a clear explanation of his plan. Can he confirm that the Bill is a suitable legislative vehicle? I cannot see why it would not be. I welcome his agreement about the need for additional legislation over and above the communications offence. In the light of the way that nudification software and deepfake are advancing, and the challenges that our law enforcement agencies have in interpreting those quite complex notions, a straightforward law making it clear that publishing such images is a criminal offence would not only help law enforcement agencies, but would help the perpetrators to understand that what they are doing is a crime and they should stop.
Chris Philp
As always, the right hon. Lady makes an incredibly powerful point. She asked specifically about whether the Bill is a suitable legislative vehicle in which to implement any Law Commission recommendations—we do not yet have the final version of that report—and I believe that that would be in scope. A decision about legislative vehicles depends on the final form of the Law Commission report and the Ministry of Justice response to it, and on cross-Government agreement about which vehicle to use.
I hope that addresses all the questions that have been raised by the Committee. Although the shadow Minister is right to raise the question, I respectfully ask her to withdraw amendment 61 on the basis that those matters are clearly covered in clause 52(9). I commend the clause to the Committee.
Alex Davies-Jones
I am grateful to the Minister for his comments. The Labour party has concerns that clause 52(9) does not adequately get rid of the ambiguity around potential illegal online content. We feel that amendment 61 sets that out very clearly, which is why we will press it to a vote.
Chris Philp
Just to help the Committee, what is it in clause 52(9) that is unclear or ambiguous?
Alex Davies-Jones
We just feel that amendment 61 outlines matters much more explicitly and leaves no ambiguity by clearly defining any
“offences committed overseas within the scope of relevant offences for the purposes of defining illegal content.”
Chris Philp
I think they say the same thing, but we obviously disagree.
Question put, That the amendment be made.
Barbara Keeley
No, it hasn’t. We did not get a chance to speak to either schedule 5 or schedule 6.
The Chair
Sorry; they were in the group, so we have to carry on.
Schedules 5 and 6 agreed to.
Ordered, That further consideration be now adjourned.—(Steve Double.)
Public Order Bill (Fourth sitting)
Tuesday 14th June 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate Public Order Act 2023 View all Public Order Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 June 2022 - (14 Jun 2022)
Sarah Jones (Croydon Central) (Lab)
I beg to move amendment 35, in clause 3, page 2, line 26, leave out sub-paragraph (iii).
This amendment seeks to limit the range of acts potentially criminalised by this provision.
The Chair
With this it will be convenient to discuss amendment 36, in clause 3, page 2, line 29, leave out paragraph (b).
This amendment seeks to limit the range of acts potentially criminalised by this provision.
Sarah Jones
I am speaking to the amendments, which we have some sympathy with, on behalf of the hon. Member for North East Fife, who is not in her place at the moment. We are moving on from the lock-on offences we debated this morning to a new offence of obstruction of major transport works. Amendments 35 and 36 would remove some of the language that perhaps makes the scope of the clause too broad. We have already covered the principle behind the objections to the present clauses, which are similar to those on locking on and being equipped to lock on. These clauses are broad, and indeed potentially infinite, but as was said this morning, restrictions on people’s fundamental rights must be limited to what is absolutely necessary.
I repeat that no one is denying that people who commit criminal acts should be arrested and charged—in many cases, we know that that is why protesters do what they do—but there are already laws to deal with these behaviours. The Public Order Act 1986 contains offences of organising or taking part in a prohibited trespassory assembly. Where a chief of police reasonably believes there will be a trespassory assembly that may result in serious disruption to the life of the community, they can place a pre-emptive ban on it, and breaching that ban is a crime.
The key point we seek to make in thew amendment is that there must be a balance. The Government should not go too far down the road of criminalising protest; that is not what happens in our democracy, and that is why the hon. Member for North East Fife tabled amendments 35 and 36.
Amendment 35 would limit the offence of obstruction to blocking the core activities of major transport works, removing clause 3(1)(a)(iii), which appears to be a catch-all for any protest near or relating to major works. Would that provision also catch construction workers who are on strike at their own places of work or a protest at the entrance to the land where works are being done?
Amendment 36 would remove reference to interfering with or moving apparatus, because the provision in the clause is broad and goes too far. The disruption from apparatus being moved is not such that the Government should seek to introduce legislation to stop peaceful protest.
The Minister for Crime and Policing (Kit Malthouse)
Amendments 35 and 36 take issue with the scope of the offence of obstructing major transport works. I understand that the hon. Lady is concerned about the wide scope of the offence, but it is clear from the evidence that the Government need to protect vital transport construction sites across the country. I think the whole Committee was shocked to hear evidence from HS2 that the cost of protest to the scheme was £122 million and likely to rise to £200 million.
Amendments 35 and 36 attempt to limit the potential acts that fall within the offence by removing references to any acts that obstruct steps “in connection with”, or “reasonably necessary” to facilitate, construction or maintenance of a particular project. They would also remove references to acts that interfere with, move or remove any apparatus that relates to the construction or maintenance of major transport projects.
As I said, I understand that there are concerns about the wide scope of this offence, but a balance needs to be struck. Protest against transport sites comes in many different forms and is constantly evolving, as a small minority seeks new ways to inflict further disruption. It is entirely proportionate for this offence to capture behaviour that obstructs any stage of these projects. Furthermore, it is right that this offence should protect from interference key machinery, materials and other necessary apparatus, without which construction or maintenance of projects cannot occur.
It is worth remembering that we are talking about projects that have been decided through a democratic process. In many ways, individuals seeking to impede such projects are latter-day King Canutes. seeking to stop something that has been decided by the House of Commons or other democratic process and should therefore be allowed to take its course.
Mrs Natalie Elphicke (Dover) (Con)
Does the Minister agree that the health and safety measures that are so vital to protect everyone, as well as equipment, on construction project sites are simply not respected by those seeking to disrupt, and that that puts everyone at risk?
Kit Malthouse
My hon. Friend makes a powerful point, which we have seen throughout some of the protest tactics that we aim to deal by means of the Bill. They include a complete disregard for the safety not just of the protesters but of the workers on the sites affected and indeed the police, who have to go and remove the individuals.
Sarah Jones
What is the Minister’s view on the Prime Minister’s intention to lie in front of bulldozers at the start of the construction of the third runway at Heathrow?
Kit Malthouse
The Prime Minister was then Mayor of London and made his views known in a light-hearted way to indicate his opposition. If he had lain down in front of the bulldozers on a project democratically decided by the House, he would have committed an offence. Having said that, it is fair to say that the leaders of all major parties at the time went and planted trees at Sipson in the hope that a forest would flourish there. We will see whether those trees last. In any event, for the reasons I have outlined, I urge the hon. Lady to withdraw the amendment, with which the Government cannot agree.
Sarah Jones
Given that the amendment is not mine and I have only supported it in principle, I will not press it to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Jones
I beg to move amendment 37, in clause 3, page 3, line 3, after “fine” insert
“not exceeding level 2 on the standard scale”.
A person convicted of an offence of obstructing major transport works may be subjected to a fine. Under this clause there is currently no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.
I think that if the hon. Member for North East Fife were here, she would say that this amendment makes the same point that she has made in previous amendments and that she has nothing to add.
Kit Malthouse
We oppose this amendment for the same reason I have given in consideration of previous amendments in a similar vein. Lowering the maximum fine for the offence to £500 is simply not proportionate. The penalties available under the Bill must be proportionate, otherwise they will not be a sufficient deterrent. I urge the hon. Lady to withdraw the amendment.
Sarah Jones
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Jones
Clause 3 introduces a new offence of obstructing the construction or maintenance of any major transport works. That would include if a person obstructs a construction worker
“in setting out the lines of any major transport works”,
or
“taking any steps that are reasonably necessary for…facilitating, or in connection with, the construction or maintenance of any major transport works”.
It will also be an offence to interfere with, move or remove
“any apparatus which…relates to the construction…of any major transport works”.
There is a reasonable excuse defence, and the maximum penalty is 51 weeks imprisonment, or a fine, or both.
There is an interesting two-part definition of what constitutes major transport works for this offence. First it is transport infrastructure covered by Acts of Parliament which provide legislative authority, HS2 being the obvious example. The second is nationally significant infrastructure projects that have been granted development consent orders under section 114 of the Planning Act 2008. For example, that could be new airports or airport extensions, major road projects, or railway works.
Like other clauses, the clause is drawn far too broadly and risks having a chilling effect on protest. This clause seems particularly targeted at climate protesters. Megan Randles, Greenpeace UK’s political campaigner, said:
“Time and again, it’s activism that has dragged a reluctant UK government into confronting vital issues, whether it’s the climate crisis or women’s rights. Ministers who…talk about freedoms at every turn should rethink this attack on one of the most fundamental freedoms we have.”
Furthermore, this Bill arrives before the protest clauses in the Police, Crime, Sentencing and Courts Act 2022 have come into effect, and that seems illogical. Would it not make more sense to introduce into law the statutory instruments for those clauses before bringing in a new raft of proposals?
People across the country want to be able to protest against major transport projects or changes in their local area, such as a library closure, or changing woodland into a car park. That fundamental right must be protected, but so must our vital infrastructure and major transport works. There is a balance to be struck. When the measure was debated in the House of Lords, many Members of that House said that the offence of obstructing transport works in clause 3 was “overreaching” and “unnecessary”. Liberty has pointed out that such a low threshold risks disproportionately interfering with people’s rights under articles 10 and 11 of the European convention on human rights and the Human Rights Act.
The Joint Committee on Human Rights felt that there could be issues with the proportionality and necessity of the measures, and that their potential to stifle peaceful and legitimate protest could mean that they were in breach of articles 10 and 11. The Home Office says that the clause is proportionate because the court would take into account the specific facts, but Liberty points out that the Home Office’s human rights analysis says nothing about whether the offence is necessary or how, and the extent to which, it adequately weighs individuals’ fundamental rights to freedom of expression and assembly in the balance of rights.
In evidence, Sir Peter Fahy, who was the chief constable of Greater Manchester police, and before that the chief constable of Cheshire constabulary, said:
“I would still doubt whether the appetite would be there—the judicial appetite. Police officers are very wary…when cases get to court, the judiciary or the magistrates often give out very minor sentences—whatever might be allowed in the legislation. They find, as happened with the Sarah Everard case, that higher courts then disagree and bring in human rights legislation, or bring in a different interpretation that is in the legislation, which then completely takes the legs of the police from underneath them.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 53-54, Q116.]
Will the Minister respond to the idea that if the courts take into account human rights legislation, they may not see as proportionate the punishments introduced by these new provisions? Surely, he does not want to give the police the difficult job of interpreting and applying to peaceful protesters such complex and broadly drawn powers, only to have the courts disagree with them.
During the Lords Report stage of the Police, Crime, Sentencing and Courts Bill, when these offences were first proposed, the JCHR raised a concern about their excessive breadth. For example, the proposed new offence of obstructing major transport works would potentially cover a wide range of minor acts, including moving any apparatus that relates to the construction or maintenance of major transport works, and even moving any apparatus that belongs to a person acting under the authority of the person in charge of the works. The Bill contains no requirement that these acts are committed with any disruption or disruptive intention. Will the Minister explain how he understands the term “apparatus”? I think it would be helpful to the Committee to understand how far this goes. The terms “interfere”, “move” and “remove” are also very broad. Perhaps he can shed some light on the kinds of actions that would be covered by those terms.
Amnesty says:
“This provision fails the three-part test of legality, necessity and proportionality. The language is again vague and so broad that even coincidental obstruction of construction work by a big march that just happens to pass through a street where such works are ongoing could be covered in its scope.”
The problem, as articulated by those who gave evidence, is that our vital public infrastructure, such as HS2, should not be seriously disrupted to the detriment of the community and our national life, but we must also protect the rights to free speech and public protest. We believe that the Bill does not manage to deliver either of those objectives. During the evidence sessions, Steve Griffiths, managing director of London Stansted airport, said a couple of times that he was not the expert on legislation. He said:
“I am probably not qualified to comment intensely on the Bill”.–– [Official Report, Public Order Public Bill Committee, 9 June 2022; c. 34, Q60.]
Another thing we do not understand about the legislation—we covered this briefly this morning—is that using the term “serious disruption to two or more people” is not a sensible way to draft legislation. We need a better definition of serious disruption to start with and to make sure that any legislation we pass is targeted only on the kinds of cases we heard about in the evidence session.
Alex Cunningham (Stockton North) (Lab)
It is a pleasure to serve under your chairmanship, Mr Dowd. I am extremely concerned about the unintended consequences that will result from the introduction not just of this clause but of the other provisions as more and more people are criminalised, as my hon. Friend the Member for Croydon Central said. We have already heard from police chief Chris Noble about the additional stresses the Bill’s contents will have on the police service and the difficulty the police may well have in interpreting which action they can take in which circumstances.
As the Government strive to build up the number of officers, and to replace at least some of those whom consecutive Governments have got rid of, we can expect more arrests, more charges, and perhaps even more convictions, and there will be a knock-on effect on our prisons. I have another interest, alongside that of improving public protection: my nephew Lewis Cunningham, who lives in Beverley, starts his police training in September. I am sure that colleagues across the House will join me in wishing him well. [Hon. Members: “Hear, hear!”] I thank them for that.
My hon. Friend the Member for Croydon Central has outlined in great detail the flaws in the clause and in the rest of the Bill. There will be another major knock-on effect of the Government’s measures, which will potentially criminalise thousands of people: the measures will affect our courts, which still have dire backlogs. The most recent statistics from Her Majesty’s inspectorate of constabulary and fire and rescue services reveal that the Crown court backlog remains great, and despite various measures having been put in place—they range from extra sitting days to Nightingale courts—it will take years to get the backlog down to a reasonable and manageable level. In the autumn Budget statement, the Treasury claimed that the backlog was caused by the coronavirus pandemic. That is completely false.
The Chair
Order. I appreciate that this is an important matter, but I must ask the Member to stick to the clause, which is on the obstruction of major transport works.
Alex Cunningham
I accept the reprimand, Mr Dowd, but I wanted to emphasise that the Bill has unintended consequences. It will have a knock-on effect on the number of arrests made, the number of police available, the number of court days required, and the number of officers called to court. Those are all consequences of this legislation, which I submit is totally unnecessary, and will criminalise many people. The crisis in the justice system could have been avoided, but this legislation may add to the problem. I am skipping over some of the stuff in my notes that relates directly to courts.
The Chancellor talked about providing more police officers; the same 20,000 were promised years ago, many of whom remain to be recruited. If that promise is fulfilled and more people are brought to justice—I keep saying this—it will mean more officers in court, more arrests, and more stress on the system. The Government need to account for that. We have seen some changes. There have been supportive comments from some people in the justice system, but the bottom line is that the impact on the courts will be tremendous. A National Audit Office report says,
“The Ministry has removed the limit on the number of Crown Court sitting days, but their use relies on courts having enough physical and judicial capacity.”
That capacity does not exist.
The Chair
Order. I appreciate the wider ramifications of the issue, but I must exhort the Member to focus his attention on the clause.
Alex Cunningham
I recognise that, Mr Dowd, but the whole system is in crisis, and the point that I am trying to get across is that the Government have not properly addressed the Bill’s impact on the entire justice system. We cannot look at these measures in isolation; we have to look at their effect across the whole system. The measures could needlessly criminalise hundreds, if not thousands, of people, so we have to consider their knock-on effects.
The crisis in the system means that justice can often be denied, even to those impacted by protesters or those locking on. Those affected deserve justice; unfortunately, it will have to come in the longer term, given the breakdown in the system.
I was going to quote former Member Anna Soubry on the problems that she had in court, but I will not. The Government must look at these measures in the round, rather than in isolation. Resources will need to be available across the piece, and there is no provision in this clause, or any other clause, to ensure that the entire system operates effectively. The time for action is well past. I submit to the Minister that instead of messing around with clauses as simple as this one, the Government should start tackling the crisis in policing, the rise in violent crime, the epidemic in antisocial behaviour and the massive courts backlog.
Alex Cunningham
With that third reprimand, Chair, I shall wind up my remarks.
Kit Malthouse
I think we can take from that that the hon. Gentleman is voting against the clause. As the hon. Member for Croydon Central says, the clause creates a new offence of obstructing major transport works. We heard in strong evidence from the police, High Speed 2 and others why the offence is needed, and why the offence should ensure that all stages of construction and maintenance are protected from disruptive action, including necessary steps prior to construction, such as ecological surveys, and why the offence should also cover the removal of, or interference with, apparatus needed for construction.
I reassure the hon. Lady that “apparatus” is a usual term in legal circles; any strict definition in the Bill might result in the Bill not being future-proof, or in its being too definitive in a way that protesters could find a way around. I am sure that it will not be beyond the wit of courts to interpret what “apparatus” means. When they do, anyone found guilty of the offence will face a maximum penalty of six months’ imprisonment, an unlimited fine or both.
As with other offences in the Bill, we have provided a reasonable excuse defence. In reference to something the hon. Lady said earlier, there is a defence for trade disputes, so those on strike will have a defence against this kind of offence. As she pointed out, “major transport works” are defined as works that have either been authorised by an Act of Parliament, such as HS2, or by a development consent order under section 114 of the Planning Act 2008, such as the Silvertown tunnel. The definition ensures that transport works of strategic importance in England and Wales are protected.
The hon. Lady raised the issue of human rights. That is a common issue that courts have to address when looking at offences committed by all sorts of people in all sorts of circumstances, and it is something we are used to. I confess that I am confused by the hon. Lady’s position. She is encouraging and supportive of national injunctions, which carry unlimited fines and prison terms that depend on the views of the judge at the time. They also provide less protection for the accused, as judges generally require a lower burden of proof in deciding whether the case is proven. Of course, we heard strong evidence last week that injunctions are cumbersome, long-winded, expensive for people to put in place and unpredictable in their efficacy.
Sarah Jones
We will talk properly about injunctions under the new clauses, because we have a new clause on that. To clarify, we are not calling for big thing called a national injunction; we are calling for a national approach to dealing with all the complications that arise when there is a large infrastructure issue, and when we might need local authorities and the private sector, working with Government, to do what is needed as quickly as possible. We did not suggest a national injunction that is one chunk of a thing.
Kit Malthouse
Maybe I misheard the Leader of the Opposition on the television when he called for exactly that: a national injunction. The hon. Lady has neatly pointed out the complexity—for example, in HS2, there are different landowners, geographies, areas and phases of development—of obtaining an injunction that covers the whole of the works. The point still stands that, as far as I can see, she is content for people to be punished and to go to prison under an injunction, but strangely not under a criminal charge. I do not understand that asymmetry. As far as I can see, a criminal court has greater protections for our fellow citizens who are accused of such crimes—not least a higher burden of proof—than the civil courts, where injunctions are heard.
Sarah Jones
The Minister made that point to several of the people who gave evidence to us, but they did not accept it. Our point is that the Bill automatically criminalises things that are not criminal offences. An injunction is time-limited, specific, and pertains to an area where serious disruption is being caused; that is not the same as a lock-on offence, which might just be some women locking arms and therefore automatically committing a criminal offence. Those are very different things.
Kit Malthouse
Part of the hon. Lady’s repeated case is that there are already plenty of criminal offences with which we could charge all these people. There is no one yet who she thinks should not have been charged with an offence. Some of them, I am afraid, seem to get off on technicalities and through loopholes; I outlined a couple of examples. High Speed 2 in particular expressed frustration at the police’s inability to get some charges to stick. We are trying to satisfy the hon. Lady’s requirement for more specificity in charging decisions, as well as creating a sentencing regime that we hope will act as a deterrent. It is unacceptable that a handful of individuals repeatedly delay and add costs to important works that have been through the democratic process. They are vital to the levelling-up agenda, and the measures in the clause will support them.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Interference with use or operation of key national infrastructure
Sarah Jones
I beg to move amendment 49, in clause 4, page 4, line 30, leave out “interferes with” and insert “prevents”.
The Chair
With this it will be convenient to discuss the following:
Amendment 50, in clause 4, page 4, line 32, leave out “interfere with” and insert “prevent”.
Amendment 51, in clause 4, page 5, line 3, leave out subsection (4).
Kit Malthouse
I have a speech. The amendments are concerned with the scope of the new offence of interfering with the use of key national infrastructure. Amendments 49 and 50 replace the words “interferes with” with “prevents”. We assume that the intention is to raise the threshold of this offence to actions that completely stop a piece of key national infrastructure from being used for its intended purposes, although in fact subsection (4) already defines “interferes with” as preventing use or operation. Amendment 51 supports the change by removing that definition.
I understand what I presume are the hon. Lady’s concerns about the scope of the offence, but I do not see a need for the amendments. Subsection (4) already defines interference with key infrastructure as an act that
“prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Removing that subsection and replacing “interferes with” with “prevents” would leave the threshold of the offence undefined, leading to ambiguity over what sort of acts it would apply to.
Furthermore, I reiterate that it is vital that this offence applies to a range of disruptive actions against infra-structure, rather than ones that halt operations completely. As we have seen during protests by groups such as Insulate Britain and Just Stop Oil, even acts that delay the use of infrastructure—for example, acts that stop roads being used by the public—can cause severe disruption. Ambulances cannot get through, key deliveries are delayed, contracts cannot be fulfilled—the list goes on.
Fundamentally, the Government consider acts by a small number of determined, disruptive protesters who significantly delay the use of key infrastructure to be just as damaging as those that prevent its use entirely. I therefore encourage the hon. Member for Croydon Central to withdraw the amendment.
Sarah Jones
I think I might have handed my speaking notes to Hansard in my previous handover of information. We have tabled three simple amendments to clause 4, which is on interference with use or operation of key national infrastructure. It is similar in some ways to the previous clause, which looked at major transport works.
A person commits an offence if
“they do an act which interferes with the use or operation of any key national infrastructure in England and Wales”
and
“they intend that act to interfere with the use or operation of such infrastructure or are reckless as to whether it will do so.”
In amendments 49 and 50, we seek to replace “interferes with” with “prevents”. We believe that it is a stronger word and has the clarity that the law requires. The term “interferes with” is broad and difficult to interpret; “prevents” is much stronger.
In amendment 51, we seek to remove a passage that says:
“For the purposes of subsection (1)”,
which is the offence itself,
“a person’s act interferes with the use or operation of key national infrastructure if it prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Andrew Bridgen (North West Leicestershire) (Con)
Will the hon. Lady concede that if the wording is changed from “interferes with” to “prevents”, it will leave a loophole for the protesters? They will say that they did not prevent; they merely delayed.
Sarah Jones
I think that the psyche of the protesters we are talking about, as we have said many times, means that they will not be deterred by legislation generally. The argument we keep making is that we do not want to over-criminalise people who are going about their business, making a protest that nobody would have a problem with. Our amendments are designed to tighten the clause and improve its scope.
Lee Anderson (Ashfield) (Con)
Is there a timescale on preventing something? It strikes me that “prevents” could be more destructive than “interferes with”.
Sarah Jones
We are talking about key national infrastructure and whether the use or operation of any key national infrastructure is interfered with or prevented. If an oil refinery is being blocked—we would argue that there is already plenty of legislation in place to deal with those protesters—that would clearly prevent the operation of key national infrastructure. That is the point of our three amendments. On this occasion, I will not test the will of the Committee. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Jones
I beg to move amendment 52, in clause 4, page 5, line 18, after “newspaper printing infrastructure.” insert—
“(j) emergency services.”
The amendment adds emergency services to the list of key national infrastructure in clause 4(6), on page 5. This is really a probing amendment. As we have already discussed, we have issues with the entire clause. However, there is something interesting in how one defines national infrastructure.
Labour is the traditional party of work and workers, and over the last several years, we have spent much time clapping, thanking and cheering key workers in the emergency services, particularly through the covid pandemic. As shadow Minister for police and the fire service, I spend much time in and around the blue-light services, as I am sure the Minister does in his role. We see at first hand the incredibly important work that they do, night or day, come rain or shine. I therefore find it strange that the Government have not added emergency services to the list of key infrastructure. I actually think that the fire service, the ambulance service and police forces are just as important, in terms of infrastructure, to the continued smooth running of our country as all the other things on the list. They keep people safe and secure and save lives in a multitude of ways.
Let me explain our amendment a little further. We do not think that protests should be able to stop the emergency services from doing their jobs. An ambulance should not be stopped when rushing a patient to hospital. A fire engine should not be halted when people are trapped in burning buildings, and the police must be able to reach the scene of a crime as quickly as possible. We know that time is often of the essence in those things. However, I should also make it clear that we do believe that there is scope for protest, in some instances, around such sites, for instance with protests against the closure of a GP surgery, a police station—the Minister may well remember several of those from his time at City Hall—or an accident and emergency facility.
In April of this year, for instance, protesters staged a protest in Shropshire, in a little town called St Martin’s, at the closure of a GP surgery. The surgery in St Martin’s, Shropshire, has been closed since March 2020 and made an application to the health board to close permanently. Hundreds of people have signed a petition calling for the practice to remain in the village. In recent years, there have also been protests in Lincolnshire at the closure of A&E services in Grantham.
Those are very legitimate protests; they are examples of local people taking a stand at closures that will really affect their local area and the health of their families and neighbours. The key point is that they were done in proportionate ways. It is important that we make that distinction; they did not and do not stop the emergency services. Our amendment to this clause provides protection for emergency services but does allow for legitimate protests around sites that may come under the aegis of the emergency services, such as a police station or an A&E site.
I think that we can all agree that the emergency services do an exceptionally important job, and the Minister might therefore like to comment on their inclusion on this list of key national infrastructure. Would he not agree that blocking a police car as it races towards a crime, such as domestic violence, ought to be considered interfering with key national infrastructure?
I hope that I have given Members on both sides some food for thought about what should come under the definition in the clause. Emergency services are an essential service, and if an oil refinery is going to have such offences applied to it, the logic stands that emergency services infrastructure should too.
Kit Malthouse
I must say that I have some sympathy with what the hon. Lady is trying to achieve. However, her Government, she will be please to know, got there before us by creating the Emergency Workers (Obstruction) Act 2006, which has already created an offence of intentionally obstructing an emergency worker from exercising their functions, punishable on summary conviction by an unlimited fine.
Sarah Jones
There are lots of other bits of legislation that can stop protests and stop people from interfering in all kinds of different ways. The key point that we were trying to make is that if we define national infrastructure, it is peculiar not to include emergency services in that definition.
Kit Malthouse
I understand the hon. Lady’s point, although it was only a breath ago that she was telling me that the clause was broad, and, now, she is attempting to broaden it. As I said, we already have significant legislation that will assist us. We should not forget that some of the offences that we have already considered will assist. The police use the roads and therefore our ability to deal with people glued on to the roads will be critical. The police need fuel and ambulances need fuel, so locking on to fuel depots will similarly be covered.
Sarah Jones
I am glad the Minister accepts that this is an issue that deserves to be thought about. As this was a probing amendment, we will leave it at that. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Jones
Clause 4, as we have been talking about in the debate on the amendments, introduces a new offence of interference with the use or operation of key national infrastructure. Subsection (1) makes it an offence for a person to
“do an act which interferes with the use or operation of any key national infrastructure”
where the person intends the act to have that effect or is
“reckless as to whether it will do so.”
Subsection (2) provides a defence of “reasonable excuse” and a defence applying to industrial action, which the Minister referred to. The clause sets out the maximum penalty for the offence—namely,
“on summary conviction, to imprisonment for term not exceeding the general limit in a magistrates’ court”,
rising to 12 months, or an unlimited fine, or both—imprisonment, a fine or both.
Subsections (4) and (5) define interference as an act that “prevents” or “significantly delays” the infrastructure from being used or operated to any extent of its intended purpose. The clause then lists the key national infrastructure, which we have been debating, and that includes, apart from emergency workers, transport sectors including air transport and harbours; oil, gas and electricity infrastructure; and newspaper printing infrastructure, which we will talk about later.
We think clause 4 defines interference incredibly broadly, as any act that
“prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Liberty has pointed out that the low threshold appears to contradict the Supreme Court’s finding that deliberately obstructive protest can come under the protection of articles 10 and 11, and risks criminalising an extremely wide range of activities, including where the use or operation of infrastructure is “significantly delayed”. That term is not defined in the offence.
We have tried to remove clause 4. We hear the concerns that some protests can tip the balance of rights in the wrong direction. I repeat that protest is not an unqualified right—campaigners who block people from reaching relatives in hospital and oil protests that prevent people from crucial travel are breaking the law—but there are a raft of measures already in place. This is a fundamental point that the Minister has not acknowledged: a panoply of existing powers on public order is available to the police.
In the debates we have had over the past year on the Police, Crime, Sentencing and Courts Act, the way some Members have talked about the policing of protest has sometimes implied that the police are not doing anything and that there are currently no powers they can use. We are not starting from a position of nothing; we are starting from multiple pieces of legislation. There is wilfully obstructing the highway, the offence of criminal damage or conspiracy to cause criminal damage, the offence of aggravated trespass, the offence of public nuisance and the offence of breach of the peace, which we have not yet talked about much.
More than 20 people were arrested for criminal damage and aggravated trespass at Just Stop Oil protests in Surrey. Injunctions were granted at Kingsbury oil terminal following more than 100 arrests, and there were further arrests for breaching those injunctions, which are punishable by up to two years in prison: nine people were charged. When Extinction Rebellion dumped tons of fertiliser outside newspaper offices, five people were arrested. Earlier this year, six Extinction Rebellion activists were charged with criminal damage in Cambridge. In February this year, five Insulate Britain campaigners were jailed for breaching their injunctions, and in November, nine Insulate Britain activists were jailed for breaching injunctions to prevent road blockades. It is important to point out that for the kinds of protesters we are talking about, breaking the law and being arrested is often the aim.
During our evidence sessions, we heard from police officers about how well the police can use the existing laws. Chief Superintendent Phil Dolby from West Midlands police spoke to us about a large, disruptive protest in Birmingham, where he negotiated conditions using the Public Order Act 1986:
“I just gave a warning about the police’s power to who I was evidentially satisfied was the organiser. I negotiated and said, ‘Look, I’ve got this power. It’s ready, and here it is. Do you want to carry on, or can I encourage you to stop? You have had your opportunity, and you need to move on.’ There was a negotiated approach that I thought tried to keep the balance for everyone.
Similarly, Extinction Rebellion recently blocked a fairly minor road…They had a tactic whereby instead of staying in the middle of the road all the time, they would use the pelican crossing but let the traffic stop by the traffic furniture. They would then occupy the road for about five minutes and when the traffic built up, they would move away…
We have our protest liaison teams, and there is a five-step appeal that officers go through, which we document and fill, giving every opportunity for the protesters to reach the decision themselves. Eventually, I said, ‘Okay. There is a power here to stop you. This is an unlawful assembly because it is now causing serious disruption. There’s a children’s hospital that is starting to be affected, so now that’s enough.’
I brought forward the van that is a mobile prison cell—kind of a show of strength, really—and said, ‘That is what I am prepared to use’. They said, ‘Okay’, and that was enough. Again, both the powers were available to us. They were being prepared to be used. We were not just tolerating it; there was a negotiated approach, and both of those are examples of where that has been successful. On the serious disruption element in the Bill, I would encourage as much precision for that definition as possible.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 57-58, Q119.]
As Peter Fahy aptly said,
“In all the protests it is escalation, which looks in the early stages like the police are being weak, but in the background they are talking to people and they are escalating…You work up to it”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 62, Q122.]
The concern about the definition of serious disruption is shared by many people across policing. In the written evidence submitted by the National Police Chiefs’ Council, Chief Constable BJ Harrington—the national lead for public order—wrote that,
“the term ‘serious disruption’ has been subject to much discussion and debate. Within any new legislation we would welcome clarity or guidance about the threshold and interpretation of this to allow operational commanders to best apply their operational responses.”
I urge the Minister to bear in mind the consequences of these provisions for the police officers trying to put them into practice.
Wendy Chamberlain (North East Fife) (LD)
For me, that is the issue: one of the impacts of this legislation will be that we give the police nowhere to go, other than straight to arrest. In my policing experience and that of Lord Paddick, once the police start arresting people, they very quickly run out of cops before they run out of protesters. Does the hon. Lady agree?
Sarah Jones
I absolutely agree; the struggle within policing to have enough people to do the day job is already bad enough. I have been to Berwick, and very often in the summer months, when there are vast numbers of holidaymakers at the caravan parks, the police will only have one or two officers on. If there is a fight and they choose to arrest somebody, they then have to take that person into custody, which means there is no one left, so they have to make very difficult decisions. In the case of a protest, the police can have a negotiation and allow people to make their point, which is what protesters want to do and what we all want to facilitate. Then, the police can get to the stage where they say, “You are now causing serious disruption, so now we need to begin to use some of our powers.” That is a much preferable way of policing.
The police did not ask for most of these powers, and there has not been a proper consultation process with them on this piece of legislation. The big piece of work that was done by Matt Parr took place before the then Police, Crime, Sentencing and Courts Bill and, as we heard in evidence, some aspects of this Bill were considered by him, but some were not, including the infrastructure and transport sections. There has been no proper consultation with the police on these clauses.
The police should not have to make decisions about definitions of vague terms in legislation. They will look like political decisions and put even more pressure on the police. During progress of the Police, Crime, Sentencing and Courts Bill, many Members from different sides of the Chamber made that point in the House.
The National Police Chiefs’ Council wrote:
“It is essential that any powers or legislation are straightforward and capable of use by officers and staff at all levels. Experience has shown that unless legislation is clear and simple for use in complex and fast-moving public order situations that it can fail to have the positive impact intended and sometimes create an expectation that cannot be met or lead to unintended issues.”
I also note the points in the NPCC’s excellent evidence about police responsibilities on private land. It wrote:
“We want to ensure that any new legislation does not inadvertently transfer or encourage reliance on policing for security or reduce the ability or necessity of organisations to obtain injunctions. This would not only be a fundamental change in the role of policing but would create a significant capacity issue that would detract from force’s wider duties to prevent and detect crime.”
The NPCC argues that,
“police powers that are practical for use on the front line…Police responsibilities on private land—The funding and resourcing of Home Office police forces is applied primarily to ensure effective policing of public spaces.”
There is an interesting section on this issue that I will not read out, but I am sure the Minister has seen it and will be thinking it through.
The NPCC goes on to say,
“we believe that the question of the responsibility for policing of private land is key. There is a question about the definition of ‘key national infrastructure’, and we would have concern about an explicit duty being placed on policing to deal with activity on private land.
We would be concerned about the impact to our operational response were the responsibility, risks, and costs for securing these sites to be moved from private sector organisations to the police. The impact on police resources, especially for the forces where much of this key infrastructure resides, could be substantial. We believe there is potential for other agencies and organisations to have the powers which would go some way to prevent this.
We believe that there needs to be a strong rationale behind what is considered key national infrastructure, taking into consideration the potential impact of any disruption taking place, so that there is no risk to confidence in policing in being seen to protect private business interests or placing an unreasonable burden on policing that will detract from our core mission.”
We argue that it is not fair to keep piling on new offences. In his evidence, Sir Peter Fahy talked very well about expecting the police to make sense of the new offences, then interpret them and then do all the work.
The Government could do more to work with the police, those who run public and private infrastructure and local authorities to support the right to peaceful protest, to work together to safeguard essential infrastructure, to review the measures that they have just introduced before coming back for more, to work on training, guidance and the resources that public order teams need, and to work on streamlined plans for injunctions that could protect the smooth running of essential infrastructure, if needed.
I again make it clear that we do not support those hardline protesters who keep returning to make people’s lives a misery. We do not believe that clause 4 will fix the problems that our evidence sessions highlighted. It will not speed up the removal of protesters who are causing serious disruption or be a deterrent for those who want to break the law. It risks creating more flashpoints for the police.
Our national infrastructure needs protecting. We hear the anger, irritation and upset when critical appointments are missed, when children cannot get to school and when laws are broken. Of course, the police must act but, unamended, the legislation is too broad to be workable.
Kit Malthouse
As the hon. Lady said, clause 4 introduces a new criminal offence of interfering with the operation of “key national infrastructure”. As we heard in our evidence, recent actions by protestors, including activity blocking or obstructing our printing presses, roads and fuel supply, have inflicted misery on the hard-working public.
As my right hon. Friend the Home Secretary said on Second Reading, the Government cannot stand idly by and let small groups of disruptive individuals prevent people from getting to their places of work by blocking trains and roads, or stop vital supplies of fuel reaching the public by preventing oil tankers from leaving terminals across the country. Such actions cause enormous damage and have a serious economic cost. For example, policing Insulate Britain’s sit-down protests on our major highways cost £4 million, while the policing cost alone of responding to Just Stop Oil’s campaign against terminals and fuel stations is over £6 million in total so far. It is clear that we have to act.
Individuals commit this offence if they intentionally or recklessly engage in an act that prevents the use or operation of key national infrastructure to any extent, including through acts that significantly delay the operation or use of such infrastructure. The range of infrastructure covered by this offence will ensure that our major transport networks, and our energy and fuel supplies, are protected. I will say more on this issue when the Committee scrutinises clause 5.
Sarah Jones
We have seen some new tactics, but the tactics are mainly old. I understand that Swampy, who we will remember from decades ago, is in a tunnel somewhere under HS2¸ so these things do come around again.
As for the Minister’s point about the police, it is important to note that there has not been a proper consultation on the clauses on infrastructure and transport. I have spoken to lots of police officers about the Bill, and there is not as much knowledge about it as there might be, because there has not been a proper consultation process, whereas there was with the previous piece of legislation. The police quite rightly do not take a political position, but there are plenty of people who have concerns about the breadth of this legislation, not necessarily because they do not want new powers—some of them are saying, “We need new powers”—but because they worry that interpretation of the Bill, which is so broad, will put them in a very difficult position.
Kit Malthouse
I am glad that the hon. Lady accepts that the police are asking for more powers; indeed they are.
Kit Malthouse
And they have specifically requested a number of the powers in the Bill. The person who, as I hope she will agree, was the most credible witness was the National Police Chiefs’ Council’s lead for public order and protest, who said positive things about the legislation.
The hon. Lady is perhaps struggling with the notion that while we can define offences and human behaviour in this place, there is an entire industry of lawyers out there who then go on to interpret what we say. There are common terms that might appear that have particular meaning in colloquial English that have developed meaning over time in the courts. “Serious disruption” is the one that the hon. Lady is speaking to, and I will give some thought as to whether we need to think more about that, but “serious disruption” to the life of the community has been an established part of public order policing and indeed general policing for some time—at least, I think, since 1986 and the Public Order Act of that year. That Act has been interpreted through the courts in a number of ways, which means that it is well understood by police, lawyers and indeed protesters.
Jackie Doyle-Price (Thurrock) (Con)
As the Minister will be aware, in my constituency, we have significant amounts of fuel infrastructure. Indeed, in the recent Just Stop Oil protests, more than half of the arrests made nationally were made in my constituency. The proposals in this legislation absolutely reflect the conversations that I have had with the local police and with local authorities. I pay tribute, through the Minister, to the great efforts of the local police and local authorities to ensure that the disruption caused did not spill out into the wider community, because the role of Thurrock in the dispersal of fuel across the country is significant, so things could have been much worse. These proposals will make it much easier for the police to act and will make them more fleet of foot.
Kit Malthouse
I am grateful to my hon. Friend; she makes a very strong point and she is quite right; that is my experience of talking to the police officers dealing with those protests. She points to the importance of particular locations in our fuel supply network. A number of key, large, strategic fuel depots take the bulk of the load, and even a small interference with their ability to get fuel out could have a significant ripple effect that would be felt by the public.
The hon. Member for Croydon Central seems to be under the impression, or possibly trying to create the impression, that the police will change their practice and thousands of protesters will be locked up. I am confused; she seems to imply that those who are disrupting High Speed 2, for example, deserve to be arrested. She said that the cost was “horrifying”—I think that is the word she used. She accepts that HS2 has been approved by a democratically elected Parliament, and was voted for unanimously across the House. It was supported by all parties, and those protesters are seeking to frustrate that democratic decision.
All we are talking about is what offence those individuals should be charged with. We are seeking to give the police more of the options that they have asked for, and more tools to use. That reflects the fact that a number of individuals have avoided charges on technicalities, because of the complexity of the operations and the landownerships involved.
Sarah Jones
At the risk of more repetition, the point is if there is a new offence of locking on, the police might see people linking arms at a protest and think, understandably, “That is an offence! I need to arrest them.” I did not make the point earlier, but there is also an issue around resources. I wanted to ensure that I mentioned to the Minister the issue around resources for protests. For example, the number of police horses has been cut significantly in recent years. They are a very useful tool in managing protests. I am sure that the Minister understands that, and has seen how successfully police horses can manage a crowd. In this cost of living crisis, the cost of horses has gone up by £2,000 or £3,000, so the police are finding it difficult to replace horses. That is slightly niche, but it is a very important part of our ability to protest. I ask the Minister to support our police horses as much as he can.
Kit Malthouse
I am always keen to support all forms of non-human participants in crime fighting, from dogs to horses. I am not sure what relevance that has to the legislation. The hon. Member is right that in certain crowd-control situations, police horses can prove enormously calming to a crowd, which is important. However, that is a crowd situation. Horses are often used in the control of football crowds, as she will know. In a protest situation, particularly a violent protest situation, they are often used more as a dispersal tool. That is where I have seen them used. We have to be careful about straying into police tactics, rather than the legislation, which is our responsibility.
The hon. Lady seems conflicted: she is happy for protesters to be arrested and charged under current offences, or for them to go to prison under an injunction that may have been obtained by HS2, News International or any other site owner, but she seems strangely reluctant to achieve the same effect through the criminal charge that we are putting in place through this legislation. I find that asymmetry difficult to explain.
I explained earlier how seriously the Government take the offence in clause 4, and the maximum penalties available reflect that. Individuals can face a maximum penalty of 12 months’ imprisonment, an unlimited fine, or both. It is completely unacceptable that small numbers of protestors can attack the vital infrastructure that keeps this country running. This Government stand on the side of the public, who want to go about their lives free from the disruption and misery that these protesters can cause.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Key national infrastructure
Question proposed, That the clause stand part of the Bill.
Sarah Jones
The clause defines the different types of key national infrastructure for the purposes of clause 4. I was critical of the breadth of clause 4 earlier. It defines “interference” incredibly broadly as any act that
“prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Given that low threshold, we should be wary of the risk to the protections afforded to protest under articles 10 and 11 of the Human Rights Act 1998.
As we heard from legal experts in the evidence sessions last week, the courts have a tendency to look more kindly on disruptive protests when they are directed towards the perceived social, environmental, political or ethical ill identified by the protesters and take place at the site of that perceived ill. It is worth exploring that in a little more detail, as it is important to keep that in mind when looking at the raft of infrastructure that the Government have deemed worthy of the title “key national”.
Let us start with the Greenham Common protests, which were motivated by a desire for nuclear disarmament and carried out in opposition to the Government’s placing of missiles on its Berkshire base, RAF Greenham Common. Crucially, the protests were carried out on that site. Hands were held, arms interlocked and songs sung around the base. There were shows of solidarity, kindness and compassion at Greenham Common, as well as criminal behaviour, which was dealt with. Whatever our views, those protests hold a special place in our national history and consciousness.
Kit Malthouse
Greenham is on the edge of my constituency, as I am sure the hon. Lady knows. I hope that she will accept that defence installations are not defined as key national infrastructure in this legislation.
Sarah Jones
Why not, when nuclear energy is? My point is broader: it is not about the definition but the way that courts define whether a protest is significant. The kind of punishment they give often depends on whether the protest is near the thing being protested about. I will explain what I mean. If we look at more recent protests, such as the Insulate Britain protests on motorways, there is no clear relation between the issue being protested about and the site of the protest. In other words, there is no direct link between insulation and the M25. The M25 has nothing to do with poorly insulated homes. It is not the Government Department responsible for insulating homes. I can see why Insulate Britain might choose to protest outside a Government Department.
I am sure that Insulate Britain would argue that there is a link between the M25 and insulation, but when the courts passed their judgment on Insulate Britain, they came down much more harshly because there was no connection between the place and the people whom the protesters were interfering with and the issue that they were arguing about. Members of Insulate Britain have gone to prison for the M25 protests because the courts take such a dim view of that lack of connection.
The point about clause 5 is that often these key national infrastructure sites are key to the point of the protest. As Liberty notes,
“one of the key ways that people seek to make their protests effective is to draw attention to sites of power”.
The manner and location of protests are key to their power. Had the suffragettes not protested in Downing Street or Parliament, but outside a building a few hundred metres away, their protest would not have had the same impact. Had the Greenham Common women not been allowed to protest around the site of the missiles, and had they instead protested in Basingstoke, they would not have had the same impact.
Kit Malthouse
I understand the parallel that the hon. Lady is trying to draw with the Greenham Common women. I do not think that they were necessarily responsible for winning the cold war, although I do believe a woman—the then leader of our country—was. Does the hon. Lady understand that although the Greenham Common protest has passed into lore, it did not actually interfere with the operation of the base? Missiles came and went, the Americans flew in and out, and the base was supplied; there was no interference. Strictly in terms of the offence that we are talking about, the protesters did not commit an offence.
Sarah Jones
I think there was interference, in that they broke through the perimeter on several occasions.
Sarah Jones
Subsection (2) concerns road transport infrastructure. As I have mentioned, we already have laws to protect roads. Wilful obstruction of a highway comes with a fine, and the Government’s recent Police, Crime, Sentencing and Courts Act 2022 increased the maximum penalty for that offence from £1,000 to an unlimited fine and/or six months’ imprisonment. Earlier, the Minister made a remark about the Labour party’s position. To clarify, we tried to limit the scope of that piece of legislation so that it applied only to motorways and A roads, and not to very small roads, and we would have supported the provisions had the Government accepted our amendment. Given the changes made by the 2022 Act, we do not understand why clause 5 on transport infrastructure is necessary. As the Labour party has said all along, there are already laws to protect roads.
I turn to rail. Let us imagine that there is a Starbucks on a train station platform, and a group of children have chosen that platform on which to protest about the lack of corporation tax that Starbucks pays in the UK. It could be platform 4 in Taunton, which I imagine would be delightful today. It could be at London Marylebone—perhaps after the protest—or at platform 1 at Coventry; there are Starbucks franchises on all those platforms. Such protests would be legitimate, I believe. This speaks to the importance of the place and manner of protests.
It is busy at Taunton, and the protestors delay the driver in getting to his train by half an hour. Does that count as infrastructure being significantly delayed? They do not mean to block the driver; that was not their intention. Under the Bill, would the Minister consider those children, or the adult who is with them, to have committed a criminal offence? Such broad-brush legislation opens up all kinds of possibilities.
Kit Malthouse
I am sure that the hon. Lady will accept that protesting on a crowded railway platform, particularly if fast trains pass through it—she mentioned Tiverton Parkway—is quite dangerous, for other passengers and for the protesters. Does she not agree that there should be some way for us to control that kind of behaviour? Byelaws on the railway need to be obeyed.
Sarah Jones
There are byelaws, and there are others laws that could be used in that situation. My point is that two children protesting outside Starbucks might be considered to have committed an offence under clause 5.
On airports, we know from evidence that all the people who cut through the fencing surrounding Stansted airport and made their way to the Boeing jet were arrested. The police had the powers to deal with them and did. Once again, the right to protest is not absolute, but the Bill will prevent potentially peaceful protests.
There was an interesting debate about newspapers in one of the evidence sessions. The hon. Member for North West Leicestershire challenged David Dinsmore on whether his newspapers counted as national infra-structure. David Dinsmore argued that they did because of the importance of providing facts to a wide audience, especially during the pandemic. When challenged about the importance of social media—I get much of my news online, as I am sure many people do—David Dinsmore pointed to the elderly section of the population, who are less likely to get their news online or via Twitter. Their daily newspapers—whether tabloid or broadsheet, printed on pink or white paper, and ranging from the Daily Mail to The Guardian—are still important. That might well be the case, but let me quote from the clause:
“‘Newspaper printing infrastructure’ means infrastructure the primary purpose of which is the printing of one or more national or local newspapers.”
The definition of a “local newspaper”, however, is relatively broad: it must be
“published at least fortnightly and…in circulation in a part of England and Wales”.
A newspaper may include “a periodical or magazine”.
Let us explore that a little more. My purpose, again, is to test the limit cases of legislation. It is important to tease out the consequences and show up the broader inferences. To take the newspaper with the widest circulation in the country, just under 1 million people read the Daily Mail, and it is sold across the country. It is a national newspaper—of that there is no doubt. David Dinsmore said:
“Between The Sun and The Times, we would normally expect to sell about 2 million papers”
on a Saturday. He went on:
“We also print for The Daily Telegraph. We print some of the Daily Mail and some of the Financial Times, and we also deliver a direct-to-consumer service, although we do not print them, for The Guardian out of the Broxbourne site”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 46, Q96.]
He makes a fair argument for that printing press providing a national service of sorts.
What other publications are included, however? There are all manner of small newspapers, including the Leicester Mercury, the Bristol Post, the Oldham Advertiser and The Rochdale Observer. Does the Minister think that those fall under the definition of “key national infrastructure”?
What about slightly more esoteric publications? I have a staffer who reads the London Review of Books, which is published every two weeks; its printing is therefore protected under the clause. I do not believe that even my staffer would argue that its printing was of key national importance, however much they enjoy it. Does the printing of the Angling Times—circulation 25,878—come under the legislation, or the Horse & Hound or Cycling Weekly? The Minister is keen on shooting. Is he among the 21,303 subscribers to the Shooting Times, and would he defend its printing as being of key national importance? I produce those examples only to highlight what we see as the flaws in the clause.
The clause is an extension of clause 4, in that it provides the definitions of key infrastructure. As I said, we have issues with clause 4, and have already debated it. We believe that infrastructure needs protecting, and we hear the anger, irritation and upset when critical appointments are missed and delays felt, but we have problems with the scope of the clause, especially given that, as we have debated, it does not include other definitions, such as one for emergency workers. Much of the infrastructure listed in the clause is already protected in law under existing police powers, and there are loopholes and inconsistencies.
Kit Malthouse
The clause supports the new offence of interfering with the operation of key national infrastructure created by clause 4 by defining the categories of infrastructure in scope of the offence.
The offence will cover major roads, railways, airports, harbours, and downstream oil and gas infrastructure in England and Wales. It will also cover newspaper printing presses, onshore oil and gas exploration and production, and larger-scale onshore electricity infrastructure. Minor infrastructure such as undesignated roads and small-scale power stations will be out of scope, as will offshore infrastructure, because much of it lies outside our territorial waters.
We recognise, however, that protest tactics evolve, and that it is entirely possible that infrastructure currently out of scope will be targeted. We have therefore included a delegated power to allow the Home Secretary to amend the list of infrastructure in scope of the offence. That will ensure that the clause keeps pace with evolving protest tactics.
I do not know about you, Mr Dowd, but I am extremely pleased to know that, once the clause passes into law, the production and distribution of the Andover Advertiser in my constituency will be protected, because it is a weekly local newspaper. The hon. Member for Croydon Central is right that local newspapers have a valuable role to play. As she knows, that industry has evolved, such that lots of newspapers are printed in the same place—rare now is the newspaper that has its own presses—and protection of the promulgation of the views in printed matter is critical.
The Ottomans banned the printing press, because they felt that it would impact on their ability to rule their empire. Those who seek to smash the presses, or to delay them, or stop the views coming out of them, should be dealt with most severely. That is what we are attempting to ensure through clause 4, as added to by clause 5, which I commend to the Committee.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Online Safety Bill (Tenth sitting)
Tuesday 14th June 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 14 June 2022 - (14 Jun 2022)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 7 - Question accordingly negatived.
John Nicolson (Ochil and South Perthshire) (SNP)
I beg to move amendment 142, in schedule 7, page 183, line 11, leave out from “under” to the end of line and insert
“any of the following provisions of the Suicide Act 1961—
(a) section 2;
(b) section 3A (inserted by section Communication offence for encouraging or assisting self-harm of this Act).”
The Chair
With this it will be convenient to discuss new clause 36—Communication offence for encouraging or assisting self-harm—
‘(1) In the Suicide Act 1961, after section 3 insert—
“3A Communication offence for encouraging or assisting self-harm
(1) A person (“A”) commits an offence if—
(a) A sends a message,
(b) the message encourages or could be used to assist another person (“B”) to inflict serious physical harm upon themselves, and
(c) A’s act was intended to encourage or assist the infliction of serious physical harm.
(2) The person referred to in subsection (1)(b) need not be a specific person (or class of persons) known to, or identified by, A.
(3) A may commit an offence under this section whether or not any person causes serious physical harm to themselves, or attempts to do so.
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both;
(b) on indictment, to imprisonment for a term not exceeding 5 years, or a fine, or both.
(5) “Serious physical harm” means serious injury amounting to grievous bodily harm within the meaning of the Offences Against the Person Act 1861.
(6) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.
(7) If A arranges for a person (“A2”) to do an Act and A2 does that Act, A is also to be treated as having done that Act for the purposes of subsection (1).
(8) In proceedings for an offence to which this section applies, it shall be a defence for A to prove that—
(a) B had expressed intention to inflict serious physical harm upon themselves prior to them receiving the message from A;
(b) B’s intention to inflict serious physical harm upon themselves was not initiated by A; and
(c) the message was wholly motivated by compassion towards B or to promote the interests of B’s health or wellbeing.”’
John Nicolson
New clause 36 seeks to criminalise the encouragement or assistance of a suicide. Before I move on to the details of the new clause, I would like to share the experience of a Samaritans supporter, who said:
“I know that every attempt my brother considered at ending his life, from his early 20s to when he died in April, aged 40, was based on extensive online research. It was all too easy for him to find step-by-step instructions so he could evaluate the effectiveness and potential impact of various approaches and, most recently, given that he had no medical background, it was purely his ability to work out the quantities of various drugs and likely impact of taking them in combination that equipped him to end his life.”
It is so easy when discussing the minutiae of the Bill to forget its real-world impact. I have worked with Samaritans on the new clause, and I use that quote with permission. It is the leading charity in trying to create a suicide-safer internet. It is axiomatic to say that suicide and self-harm have a devastating impact on people’s lives. The Bill must ensure that the online space does not aid the spreading of content that would promote this behaviour in any way.
There has rightly been much talk about how children are affected by self-harm content online. However, it should be stressed they do not exclusively suffer because of that content. Between 2011 and 2015, 151 patients who died by suicide were known to have visited websites that encouraged suicide or shared information about methods of harm, and 82% of those patients were aged over 25. It is likely that, as the Bill stands, suicide-promoting content will be covered in category 1 services, as it will be designated as harmful. Unless this amendment is passed, that content will not be covered on smaller sites, which is crucial. As Samaritans has identified, it is precisely in these smaller fora and websites that harm proliferates. The 151 patients who took their own life after visiting harmful websites may have been part of a handful of people using those sites, which would not fall under the definition of category 1, as I am sure the Minister will confirm.
Kim Leadbeater (Batley and Spen) (Lab)
The hon. Gentleman makes a very important point, which comes to the nub of a lot of the issues we face with the Bill: the issue of volume versus risk. Does he agree that one life lost to suicide is one life too many? We must do everything that we can in the Bill to prevent every single life being lost through suicide, which is the aim of his amendment.
John Nicolson
I do, of course, agree. As anyone who has suffered with someone in their family committing suicide knows, it has a lifelong family effect. It is yet another amendment where I feel we should depart from the pantomime of so much parliamentary procedure, where both sides fundamentally agree on things but Ministers go through the torturous process of trying to tell us that every single amendment that any outside body or any Opposition Member, whether from the SNP or the Labour party, comes up with has been considered by the ministerial team and is already incorporated or covered by the Bill. They would not be human if that were the case. Would it not be refreshing if there were a slight change in tactic, and just occasionally the Minister said, “Do you know what? That is a very good point. I think I will incorporate it into the Bill”?
None of us on the Opposition Benches seeks to make political capital out of any of the things we propose. All of us, on both sides of the House, are here with the best of intentions, to try to ensure that we get the best possible Bill. We all want to be able to vote for the Bill at the end of the day. Indeed, as I said, I have worked with two friends on the Conservative Benches—with the hon. Member for Watford on the Joint Committee on the draft Bill and with the hon. Member for Wolverhampton North East on the Select Committee on Digital, Culture, Media and Sport—and, as we know, they have both voted for various proposals. It is perhaps part of the frustration of the party system here that people are forced to go through the hoops and pretend that they do not really agree with things that they actually do agree with.
Let us try to move on with this, in a way that we have not done hitherto, and see if we can agree on amendments. We will withdraw amendments if we are genuinely convinced that they have already been considered by the Government. On the Government side, let them try to accept some of our amendments—just begin to accept some—if, as with this one, they think they have some merit.
I was talking about Samaritans, and exactly what it wants to do with the Bill. It is concerned about harmful content after the Bill is passed. This feeds into potentially the most important aspect of the Bill: it does not mandate risk assessments based exclusively on risk. By adding in the qualifications of size and scope, the Bill wilfully lets some of the most harmful content slip through its fingers—wilfully, but I am sure not deliberately. Categorisation will be covered by a later amendment, tabled by my hon. Friend the Member for Aberdeen North, so I shall not dwell on it now.
In July 2021, the Law Commission for England and Wales recommended the creation of a new narrow offence of the “encouragement or assistance” of serious self-harm with “malicious intent”. The commission identified that there is
“currently no offence that adequately addresses the encouragement of serious self-harm.”
The recommendation followed acknowledgement that
“self-harm content online is a worrying phenomenon”
and should have a
“robust fault element that targets deliberate encouragement of serious self-harm”.
Currently, there are no provisions of the Bill to create a new offence of assisting or encouraging self- harm.
In conclusion, I urge the Minister to listen not just to us but to the expert charities, including Samaritans, to help people who have lived experience of self-harm and suicide who are calling for regulation of these dangerous sites.
Alex Davies-Jones (Pontypridd) (Lab)
Good afternoon, Sir Roger; it is a pleasure, as ever, to serve under your chairship. I rise to speak to new clause 36, which has been grouped with amendment 142 and is tabled in the names of the hon. Members for Ochil and South Perthshire and for Aberdeen North.
I, too, pay tribute to Samaritans for all the work it has done in supporting the Bill and these amendments to it. As colleagues will be aware, new clause 36 follows a recommendation from the Law Commission dating back to July 2021. The commission recommended the creation of a new, narrow offence of the “encouragement or assistance” of serious self-harm with “malicious intent”. It identified that there is
“currently no offence that adequately addresses the encouragement of serious self-harm.”
The recommendation followed acknowledgement that
“self-harm content online is a worrying phenomenon”
and should have a
“robust fault element that targets deliberate encouragement of serious self-harm”.
Currently, there are no provisions in the Bill to create a new offence of assisting or encouraging self-harm, despite the fact that other recommendations from the Law Commission report have been brought into the Bill, such as creating a new offence of cyber-flashing and prioritising tackling illegal suicide content.
We all know that harmful suicide and self-harm content is material that has the potential to cause or exacerbate self-harm and suicidal behaviours. Content relating to suicide and self-harm falls into both categories in the Bill—illegal content and legal but harmful content. Encouraging or assisting suicide is also currently a criminal offence in England and Wales under the Suicide Act 1961, as amended by the Coroners and Justice Act 2009.
Content encouraging or assisting someone to take their own life is illegal and has been included as priority illegal content in the Bill, meaning that platforms will be required to proactively and reactively prevent individuals from encountering it, and search engines will need to structure their services to minimise the risk to individuals encountering the content. Other content, including content that positions suicide as a suitable way of overcoming adversity or describes suicidal methods, is legal but harmful.
The Labour party’s Front-Bench team recognises that not all content falls neatly into the legal but harmful category. What can be helpful for one user can be extremely distressing to others. Someone may find it extremely helpful to share their personal experience of suicide, for example, and that may also be helpful to other users. However, the same material could heighten suicidal feelings and levels of distress in someone else. We recognise the complexities of the Bill and the difficulties in developing a way around this, but we should delineate harmful and helpful content relating to suicide and self-harm, and that should not detract from tackling legal but clearly harmful content.
In its current form, the Bill will continue to allow legal but clearly harmful suicide and self-harm content to be accessed by over-18s. Category 1 platforms, which have the highest reach and functionality, will be required to carry out risk assessments of, and set out in their terms and conditions their approach to, legal but harmful content in relation to over-18s. As the hon. Member for Ochil and South Perthshire outlined, however, the Bill’s impact assessment states that “less than 0.001%” of in-scope platforms
“are estimated to meet the Category 1 and 2A thresholds”,
and estimates that only 20 platforms will be required to fulfil category 1 obligations. There is no requirement on the smaller platforms, including those that actively encourage suicide, to do anything at all to protect over-18s. That simply is not good enough. That is why the Labour party supports new clause 36, and we urge the Minister to do the right thing by joining us.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
It is, as always, a great pleasure to serve under your chairmanship, Sir Roger. The hon. Member for Ochil and South Perthshire made an observation in passing about the Government’s willingness to listen and respond to parliamentarians about the Bill. We listened carefully to the extensive prelegislative scrutiny that the Bill received, including from the Joint Committee on which he served. As a result, we have adopted 66 of the changes that that Committee recommended, including on significant things such as commercial pornography and fraudulent advertising.
If Members have been listening to me carefully, they will know that the Government are doing further work or are carefully listening in a few areas. We may have more to say on those topics as the Bill progresses; it is always important to get the drafting of the provisions exactly right. I hope that that has indicated to the hon. Gentleman our willingness to listen, which I think we have already demonstrated well.
On new clause 36, it is important to mention that there is already a criminal offence of inciting suicide. It is a schedule 7 priority offence, so the Bill already requires companies to tackle content that amounts to the existing offence of inciting suicide. That is important. We would expect the promotion of material that encourages children to self-harm to be listed as a primary priority harm relating to children, where, again, there is a proactive duty to protect them. We have not yet published that primary priority harm list, but it would be reasonable to expect that material promoting children to self-harm would be on it. Again, although we have not yet published the list of content that will be on the adult priority harm list—obviously, I cannot pre-empt the publication of that list—one might certainly wish for content that promotes adults to self-harm to appear on it too.
The hon. Gentleman made the point that duties relating to adults would apply only to category 1 companies. Of course, the ones that apply to children would apply to all companies where there was significant risk, but he is right that were that priority harm added to the adult legal but harmful list, it would apply only to category 1 companies.
Chris Philp
In a second, but I may be about to answer the hon. Lady’s question.
Those category 1 companies are likely to be small in number, as I think the shadow Minister said, but I would imagine—I do not have the exact number—that they cover well over 90% of all traffic. However, as I hinted on the Floor of the House on Second Reading—we may well discuss this later—we are thinking about including platforms that may not meet the category 1 size threshold but none the less pose high-level risks of harm. If that is done—I stress “if”—it will address the point raised by the hon. Member for Ochil and South Perthshire. That may answer the point that the hon. Member for Batley and Spen was going to raise, but if not, I happily give way.
Kim Leadbeater
It kind of does, but the Minister has raised some interesting points about children and adults and the risk of harm. To go back to the work of Samaritans, it is really important to talk about the fact that suicide is the biggest killer of young people aged 16 to 24, so it transcends the barrier between children and adults. With the right hon. Member for Basingstoke, the hon. Member for Aberdeen North, and the shadow Minister, my hon. Friend the Member for Pontypridd, we have rightly talked a lot about women, but it is really important to talk about the fact that men account for three quarters of all suicide. Men aged between 45 and 49 are most at risk of suicide—the rate among that group has been persistently high for years. It is important that we bring men into the discussion about suicide.
Chris Philp
I am grateful for the element of gender balance that the hon. Member has introduced, and she is right to highlight the suicide risk. Inciting suicide is already a criminal offence under section 2 of the Suicide Act 1961 and we have named it a priority offence. Indeed, it is the first priority offence listed under schedule 7—it appears a third of the way down page 183—for exactly the reason she cited, and a proactive duty is imposed on companies by paragraph 1 of schedule 7.
On amendment 142 and the attendant new clause 36, the Government agree with the sentiment behind them—namely, the creation of a new offence of encouraging or assisting serious self-harm. We agree with the substance of the proposal from the hon. Member for Ochil and South Perthshire. As he acknowledged, the matter is under final consideration by the Law Commission and our colleagues in the Ministry of Justice. The offence initially proposed by the Law Commission was wider in scope than that proposed under new clause 36. The commission’s proposed offence covered the offline world, as well as the online one. For example, the new clause as drafted would not cover assisting a person to self-harm by providing them with a bladed article because that is not an online communication. The offence that the Law Commission is looking at is broader in scope.
The Government have agreed in principle to create an offence based on the Law Commission recommendation in separate legislation, and once that is done the scope of the new offence will be wider than that proposed in the new clause. Rather than adding the new clause and the proposed limited new offence to this Bill, I ask that we implement the offence recommended by the Law Commission, the wider scope of which covers the offline world as well as the online world, in separate legislation. I would be happy to make representations to my colleagues in Government, particularly in the MOJ, to seek clarification about the relevant timing, because it is reasonable to expect it to be implemented sooner rather than later. Rather than rushing to introduce that offence with limited scope under the Bill, I ask that we do it properly as per the Law Commission recommendation.
Once the Law Commission recommendation is enacted in separate legislation, to which the Government have already agreed in principle, it will immediately flow through automatically to be incorporated into clause 52(4)(d), which relates to illegal content, and under clause 176, the Secretary of State may, subject to parliamentary approval, designate the new offence as a priority offence under schedule 7 via a statutory instrument. The purpose of amendment 142 can therefore be achieved through a SI.
The Government publicly entirely agree with the intention behind the proposed new clause 36, but I think the way to do this is to implement the full Law Commission offence as soon as we can and then, if appropriate, add it to schedule 7 by SI. The Government agree with the spirit of the hon. Gentleman’s proposal, but I believe that the Government already have a plan to do a more complete job to create the new offence.
John Nicolson
I have nothing to add and, having consulted my hon. Friend the Member for Aberdeen North, on the basis of the Minister’s assurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Chris Philp
I beg to move amendment 116, in schedule 7, page 183, line 11, at end insert—
“1A An offence under section 13 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20 (N.I.)) (assisting suicide etc).”
This amendment adds the specified offence to Schedule 7, with the effect that content amounting to that offence counts as priority illegal content.
Chris Philp
These amendments pick up a question asked by the hon. Member for Aberdeen North much earlier in our proceedings. In schedule 7 we set out the priority offences that exist in English and Welsh law. We have consulted the devolved Administrations in Scotland and Northern Ireland extensively, and I believe we have agreed with them a number of offences in Scottish and Northern Irish law that are broadly equivalent to the English and Welsh offences already in schedule 7. Basically, Government amendments 116 to 126 add those devolved offences to the schedule.
In future, if new Scottish or Northern Irish offences are created, the Secretary of State will be able to consult Scottish or Northern Irish Ministers and, by regulations, amend schedule 7 to add the new offences that may be appropriate if conceived by the devolved Parliament or Assembly in due course. That, I think, answers the question asked by the hon. Lady earlier in our proceedings. As I say, we consulted the devolved Administrations extensively and I hope that the Committee will assent readily to the amendments.
Alex Davies-Jones
The amendments aim to capture all the criminal offences in other parts of the UK to be covered by the provisions of the Bill, as the Minister outlined. An offence in one part of the UK will be considered an offence elsewhere, for the purposes of the Bill.
With reference to some of the later paragraphs, I am keen for the Minister to explain briefly how this will work in the case of Scotland. We believe that the revenge porn offence in Scotland is more broadly drawn than the English version, so the level of protection for women in England and Wales will be increased. Can the Minister confirm that?
The Bill will not apply the Scottish offence to English offenders, but it means that content that falls foul of the law in Scotland, but not in England or Wales, will still be relevant regulated content for service providers, irrespective of the part of the UK in which the service users are located. That makes sense from the perspective of service providers, but I will be grateful for clarity from the Minister on this point.
Kirsty Blackman (Aberdeen North) (SNP)
I thank the Minister for tabling the amendments. In the evidence sessions, we heard about omissions in schedule 7 from not having Northern Irish and Scottish offences included. Such offences were included in schedule 6 but, at that point, not in schedule 7.
I appreciate that the Minister has worked with the devolved Administrations to table the amendments. I also appreciate the way in which amendment 126 is written, such that the Secretary of State “must consult” Scottish Ministers and the Department of Justice in Northern Ireland before making regulations that relate to legislation in either of the devolved countries. I am glad that the amendments have been drafted in this way and that the concern that we heard about in evidence no longer seems to exist, and I am pleased with the Minister’s decision about the way in which to make any future changes to legislation.
I agree with the position put forward by the hon. Member for Pontypridd. My understanding, from what we heard in evidence a few weeks ago, is that, legally, all will have to agree with the higher bar of the offences, and therefore anyone anywhere across the UK will be provided with the additional level of protection. She is right that the offence might not apply to everyone, but the service providers will be subject to the requirements elsewhere. Similarly, that is my view. Once again, I thank the Minister.
Chris Philp
Briefly, I hope that the amendments provide further evidence to the Committee of the Government’s willingness to listen and to respond. I can provide the confirmation that the hon. Members for Aberdeen North and for Pontypridd requested: the effect of the clauses is a levelling up—if I may put it that way. Any of the offences listed effectively get applied to the UK internet, so if there is a stronger offence in any one part of the United Kingdom, that will become applicable more generally via the Bill. As such, the answer to the question is in the affirmative.
Amendment 116 agreed to.
The Chair
My custom with amendments to be moved formally is to call them by number. If Members wish to vote on them, they should shout; otherwise, I will rattle through them. It is quicker that way.
Amendments made: 117, in schedule 7, page 183, line 29, at end insert—
“4A An offence under section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 (racially-aggravated harassment).”
This amendment adds the specified offence to Schedule 7, with the effect that content amounting to that offence counts as priority illegal content.
Amendment 118, in schedule 7, page 183, line 36, at end insert—
“5A An offence under any of the following provisions of the Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9))—
(a) Article 4 (harassment);
(b) Article 6 (putting people in fear of violence).”
This amendment adds the specified offences to Schedule 7, with the effect that content amounting to those offences counts as priority illegal content.
Amendment 119, in schedule 7, page 184, line 2, at end insert—
“6A An offence under any of the following provisions of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13)—
(a) section 38 (threatening or abusive behaviour);
(b) section 39 (stalking).”
This amendment adds the specified offences to Schedule 7, with the effect that content amounting to those offences counts as priority illegal content.
Amendment 120, in schedule 7, page 184, line 38, at end insert—
“12A An offence under any of the following provisions of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24))—
(a) Article 53 (sale etc of knives);
(b) Article 54 (sale etc of knives etc to minors).”
This amendment adds the specified offences to Schedule 7, with the effect that content amounting to those offences counts as priority illegal content.
Amendment 121, in schedule 7, page 184, line 42, at end insert—
“13A An offence under any of the following provisions of the Firearms (Northern Ireland) Order 2004 (S.I. 2004/702 (N.I. 3))—
(a) Article 24 (sale etc of firearms or ammunition without certificate);
(b) Article 37(1) (sale etc of firearms or ammunition to person without certificate etc);
(c) Article 45(1) and (2) (purchase, sale etc of prohibited weapons);
(d) Article 63(8) (sale etc of firearms or ammunition to people who have been in prison etc);
(e) Article 66A (supplying imitation firearms to minors).”
This amendment adds the specified offences to Schedule 7, with the effect that content amounting to those offences counts as priority illegal content.
Amendment 122, in schedule 7, page 184, line 44, at end insert—
“14A An offence under any of the following provisions of the Air Weapons and Licensing (Scotland) Act 2015 (asp 10)—
(a) section 2 (requirement for air weapon certificate);
(b) section 24 (restrictions on sale etc of air weapons).”
This amendment adds the specified offences to Schedule 7, with the effect that content amounting to those offences counts as priority illegal content.
Amendment 123, in schedule 7, page 185, line 8, at end insert—
“16A An offence under any of the following provisions of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2))—
(a) Article 62 (causing or inciting prostitution for gain);
(b) Article 63 (controlling prostitution for gain).”—(Chris Philp.)
This amendment adds the specified offences to Schedule 7, with the effect that content amounting to those offences counts as priority illegal content.
The Chair
Amendment 148 remains unmoved, and it has been tabled by a Member who is not a member of the Committee, so unless anybody wishes to adopt it, it will not be called.
Amendments made: 124, in schedule 7, page 185, line 14, at end insert—
“18A An offence under section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22) (disclosing, or threatening to disclose, an intimate photograph or film).”
This amendment adds the specified offence to Schedule 7, with the effect that content amounting to that offence counts as priority illegal content.
Amendment 125, in schedule 7, page 185, line 28, at end insert—
“20A An offence under section 49(3) of the Criminal Justice and Licensing (Scotland) Act 2010 (articles for use in fraud).”—(Chris Philp.)
This amendment adds the specified offence to Schedule 7, with the effect that content amounting to that offence counts as priority illegal content.
Amendment proposed: 59, in schedule 7, page 185, line 39, at end insert—
“Animal Welfare
22A An offence under any of the following provisions of the Animal Welfare Act 2006—
(a) section 4 (unnecessary suffering);
(b) section 5 (mutilation);
(c) section 7 (administration of poisons);
(d) section 8 (fighting);
(e) section 9 (duty of person responsible for animal to ensure welfare).
22B An offence under any of the following provisions of the Animal Health and Welfare (Scotland) Act 2006—
(a) section 19 (unnecessary suffering);
(b) section 20 (mutilation);
(c) section 21 (cruel operations);
(d) section 22 (administration of poisons);
(e) section 23 (fighting);
(f) section 24 (ensuring welfare of animals).
22C An offence under any of the following provisions of the Welfare of Animals Act (Northern Ireland) 2011—
(a) section 4 (unnecessary suffering);
(b) section 5 (prohibited procedures);
(c) section 7 (administration of poisons);
(d) section 8 (fighting);
(e) section 9 (ensuring welfare of animals).
22D For the purpose of paragraphs 22A, 22B or 22C of this Schedule, the above offences are deemed to have taken place regardless of whether the offending conduct took place within the United Kingdom, if the offending conduct would have constituted an offence under the provisions contained within those paragraphs.”—(Alex Davies-Jones.)
This amendment adds certain animal welfare offences to the list of priority offences in Schedule 7.
Question put, That the amendment be made.
John Nicolson
I beg to move amendment 90, in schedule 7, page 185, line 39, at end insert—
“Human trafficking
22A An offence under section 2 of the Modern Slavery Act 2015.”
This amendment would designate human trafficking as a priority offence.
Our amendment seeks to deal explicitly with what Meta and other companies refer to as “domestic servitude”, which we know better as human trafficking. This abhorrent practice has sadly been part of our society for hundreds if not thousands of years, and today, human traffickers are aided by various apps and platforms. The same platforms that connect us with old friends and family across the globe have been hijacked by the very worst people in our world, who are using them to create networks of criminal enterprise, none more cruel than human trafficking.
Investigations by the BBC and The Wall Street Journal have uncovered how traffickers use Instagram, Facebook and WhatsApp to advertise, sell, and co-ordinate the trafficking of young women. One would think that this issue would be of the utmost importance to Meta—Facebook, as it was at the time—yet, as the BBC reported,
“the social media giant only took ‘limited action’ until ‘Apple Inc. threatened to remove Facebook’s products from the App Store, unless it cracked down on the practice’.”
Those of us who have sat on the DCMS Committee and the Joint Committee on the draft Bill—I and my friends across the aisle, the hon. Members for Wolverhampton North East and for Watford—know exactly what it is like to have Facebook’s high heid yins before you. They will do absolutely nothing to respond to legitimate pressure. They understand only one thing: the force of law and of financial penalty. Only when its profits were in danger did Meta take the issue seriously.
The omission of human trafficking from schedule 7 is especially worrying because if it is not directly addressed as priority illegal content, we can be certain that it will not be prioritised by the platforms. We know that from their previous behaviour.
Kirsty Blackman
Can my hon. Friend see any reason—I am baffled by this—why the Government would leave out human trafficking? Can he imagine any justification that the Minister could possibly have for suggesting that it is not a priority offence, given the Conservative party’s stated aims and, to be fair, previous action in respect of, for example, the Modern Slavery Act 2015?
John Nicolson
It is an interesting question. Alas, I long ago stopped trying to put myself into the minds of Conservative Ministers—a scary place for any of us to be.
We understand that it is difficult to try to regulate in respect of human trafficking on platforms. It requires work across borders and platforms, with moderators speaking different languages. We established that Facebook does not have moderators who speak different languages. On the Joint Committee on the draft Bill, we discovered that Facebook does not moderate content in English to any adequate degree. Just look at the other languages around the world—do we think Facebook has moderators who work in Turkish, Finnish, Swedish, Icelandic or a plethora of other languages? It certainly does not. The only language that Facebook tries to moderate—deeply inadequately, as we know—is English. We know how bad the moderation is in English, so can the Committee imagine what it is like in some of the world’s other languages? The most terrifying things are allowed to happen without moderation.
Regulating in respect of human trafficking on platforms is not cheap or easy, but it is utterly essential. The social media companies make enormous amounts of money, so let us shed no tears for them and the costs that will be entailed. If human trafficking is not designated a priority harm, I fear it will fall by the wayside, so I must ask the Minister: is human trafficking covered by another provision on priority illegal content? Like my hon. Friend the Member for Aberdeen North, I cannot see where in the Bill that lies. If the answer is yes, why are the human rights groups not satisfied with the explanation? What reassurance can the Minister give to the experts in the field? Why not add a direct reference to the Modern Slavery Act, as in the amendment?
If the answer to my question is no, I imagine the Minister will inform us that the Bill requires platforms to consider all illegal content. In what world is human trafficking that is facilitated online not a priority? Platforms must be forced to be proactive on this issue; if not, I fear that human trafficking, like so much that is non-priority illegal content, will not receive the attention it deserves.
Alex Davies-Jones
Schedule 7 sets out the list of criminal content that in-scope firms will be required to remove as a priority. Labour was pleased to see new additions to the most recent iteration, including criminal content relating to online drug and weapons dealing, people smuggling, revenge porn, fraud, promoting suicide and inciting or controlling prostitution for gain. The Government’s consultation response suggests that the systems and processes that services may use to minimise illegal or harmful content could include user tools, content moderation and recommendation procedures.
More widely, although we appreciate that the establishment of priority offences online is the route the Government have chosen to go down with the Bill, we believe the Bill remains weak in relation to addressing harms to adults and wider societal harms. Sadly, the Bill remains weak in its approach and has seemingly missed a number of known harms to both adults and children that we feel are a serious omission. Three years on from the White Paper, the Government know where the gaps are, yet they have failed to address them. That is why we are pleased to support the amendment tabled by the hon. Members for Ochil and South Perthshire and for Aberdeen North.
Human trafficking offences are a serious omission from schedule 7 that must urgently be rectified. As we all know from whistleblower Frances Haugen’s revelations, Facebook stands accused, among the vast array of social problems, of profiting from the trade and sale of human beings—often for domestic servitude—by human traffickers. We also know that, according to internal documents, the company has been aware of the problems since at least 2018. As the hon. Member for Ochil and South Perthshire said, we know that a year later, on the heels of a BBC report that documented the practice, the problem was said to be so severe that Apple itself threatened to pull Facebook and Instagram from its app store. It was only then that Facebook rushed to remove content related to human trafficking and made emergency internal policy changes to avoid commercial consequences described as “potentially severe” by the company. However, an internal company report detailed that the company did not take action prior to public disclosure and threats from Apple—profit over people.
In a complaint to the US Securities and Exchange Commission first reported by The Wall Street Journal, whistleblower Haugen wrote:
“Investors would have been very interested to learn the truth about Facebook almost losing access to the Apple App Store because of its failure to stop human trafficking on its products.”
I cannot believe that the Government have failed to commit to doing more to tackle such abhorrent practices, which are happening every day. I therefore urge the Minister to do the right thing and support amendment 90.
Chris Philp
The first thing to make clear to the Committee and anyone listening is that, of course, offences under the Modern Slavery Act 2015 are brought into the scope of the illegal content duties of this Bill through clause 52(4)(d), because such offences involve an individual victim.
Turning to the priority offences set out in schedule 7 —I saw this when I was a Home Office Minister—modern slavery is generally associated with various other offences that are more directly visible and identifiable. Modern slavery itself can be quite hard to identify. That is why our approach is, first, to incorporate modern slavery as a regular offence via clause 52(4)(d) and, secondly, to specify as priority offences those things that are often identifiable symptoms of it and that are feasibly identified. Those include many of the offences listed in schedule 7, such as causing, inciting or controlling prostitution for gain, as in paragraph 16 on sexual exploitation, which is often the manifestation of modern slavery; money laundering, which is often involved where modern slavery takes place; and assisting illegal immigration, because modern slavery often involves moving somebody across a border, which is covered in paragraph 15 on assisting illegal immigration, as per section 25 of the Immigration Act 1971.
Modern slavery comes into scope directly via clause 52(4)(d) and because the practicably identifiable consequences of modern slavery are listed as priority offences, I think we do have this important area covered.
Kirsty Blackman
I appreciate that the Minister thinks that there are other measures that cover this offence, but will he keep it under consideration going forward? I do not think that that is too much to ask. Part of the logic behind that is that some of the other issues, where the reasons behind them must be proved, are much more difficult to define or prove than the modern slavery offences that we are asking to be added here. Whether he accepts the amendment or not, will he commit to considering the matter and not just saying, “Absolutely no”? That would be helpful for us and the many organisations that are keen for such things to be included.
Chris Philp
I am happy to give that further consideration, but please do not interpret that as a firm commitment. I repeat that the Modern Slavery Act is brought into the scope of this Bill via clause 52(4)(d).
John Nicolson
I have nothing further to add. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 7, as amended, agreed to.
Clause 53
“Content that is harmful to children” etc
The Chair
I have had no indication that anybody wishes to move Carla Lockhart’s amendment 98—she is not a member of the Committee.
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
It is absolutely right that the Government have included a commitment to children in the form of defining primary priority content that is harmful. We all know of the dangerous harms that exist online for children, and while the Opposition support the overarching aims of the Bill, we feel the current definitions do not go far enough—that is a running theme with this Bill.
The Bill does not adequately address the risks caused by the design—the functionalities and features of services themselves—or those created by malign contact with other users, which we know to be an immense problem. Research has found that online grooming of young girls has soared by 60% in the last three years—and four in five victims are girls. We also know that games increasingly have addictive gambling-style features. Those without user-to-user functionalities, such as Subway Surfers, which aggressively promotes in-app purchases, are currently out of scope of the Bill.
Lastly, research by Parent Zone found that 91% of children say that loot boxes are available in the games they play and 40% have paid to open one. That is not good enough. I urge the Minister to consider his approach to tackling harmful content and the impact that it can have in all its forms. When considering how children will be kept safe under the new regime, we should consider concerns flagged by some of the civil society organisations that work with them. Organisations such as the Royal College of Psychiatrists, The Mix, YoungMinds and the Mental Health Foundation have all been instrumental in their calls for the Government to do more. While welcoming the intention to protect children, they note that it is not clear at present how some categories of harm, including material that damages people’s body image, will be regulated—or whether it will be regulated at all.
While the Bill does take steps to tackle some of the most egregious, universally damaging material that children currently see, it does not recognise the harm that can be done through the algorithmic serving of material that, through accretion, will cause harm to children with particular mental health vulnerabilities. For example, beauty or fitness-related content could be psychologically dangerous to a child recovering from an eating disorder. Research from the Mental Health Foundation shows how damaging regular exposure to material that shows conventionally perfect images of bodies, often edited digitally and unattainable, are to children and young people.
This is something that matters to children, with 84% of those questioned in a recent survey by charity The Mix saying the algorithmic serving of content was a key issue that the Bill should address. Yet in its current form it does not give children full control over the content they see. Charities also tell us about the need to ensure that children are exposed to useful content. We suggest that the Government consider a requirement for providers to push material on social media literacy to users and to provide the option to receive content that can help with recovery where it is available, curated by social media companies with the assistance of trusted non-governmental organisations and public health bodies. We also hope that the Government can clarify that material damaging to people’s body image will be considered a form of harm.
Additionally, beyond the issue of the content itself that is served to children, organisations including YoungMinds and the Royal College of Psychiatrists have raised the potential dangers to mental health inherent in the way services can be designed to be addictive.
Kim Leadbeater
My hon Friend raises an important point about media literacy, which we have touched on a few times during this debate. We have another opportunity here to talk about that and to say how important it is to think about media literacy within the scope of the Bill. It has been removed, and I think we need to put it back into the Bill at every opportunity—I am talking about media literacy obligations for platforms to help to responsibly educate children and adults about the risks online. We need to not lose sight of that.
Alex Davies-Jones
I completely agree with my hon. Friend. She is right to talk about the lack of a social and digital media strategy within the Bill, and the need to educate children and adults about the harmful content that we see online. How to stay safe online in all its capacities is absolutely fundamental to the Bill. We cannot have an Online Safety Bill without teaching people how to be safe online. That is important for how children and young people interact online. We know that they chase likes and the self-esteem buzz they get from notifications popping up on their phone or device. That can be addictive, as has been highlighted by mental health and young persons’ charities.
I urge the Minister to address those issues and to consider how the Government can go further, whether through this legislation or further initiatives, to help to combat some of those issues.
Kirsty Blackman
I have a couple of questions for the Minister. The first is about the interaction of subsection (4)(c) and subsection (5). I am slightly confused about how that, because subsection (4)(c) states that anything that is not within the terms of primary priority content or primary content but is harmful to
“an appreciable number of children”
is included as
“content that is harmful to children”.
That is completely reasonable. However, subsection (5) excludes illegal content and content with a “potential financial impact”. I appreciate that these provisions are drafted in quite a complicated way, but it would be useful to have an understanding of what that means. If it means there is no harm on the basis of things that are financial in nature, that is a problem, because that explicitly excludes gambling-type sites, loot boxes and anything of that sort, which by their nature are intentionally addictive and try to get children or adults to part with significant amounts of cash. If they are excluded, that is a problem.
How will clause 53 be future-proofed? I am not suggesting that there is no future proofing, but it would be helpful to me and fellow Committee members if the Minister explained how the clause will deal with new emerging harms and things that may not necessarily fall within the definitions that we set initially. How will those definitions evolve and change as the internet evolves and changes, and as the harms with which children are presented evolve and change?
And finally—I know that the Minister mentioned earlier that saying, “And finally”, in a speech is always a concern, but I am saying it—I am slightly concerned about the wording in subsection (4)(c), which refers to
“material risk of significant harm to an appreciable number of children”,
because I am not clear what an “appreciable number” is. If there is significant harm to one child from content, and content that is incredibly harmful to children is stumbled upon by a child, is it okay for that provider to have such content? It is not likely to accessed by an “appreciable number of children” and might be accessed by only a small number, but if the Minister could give us an understanding of what the word “appreciable” means in that instance, that would be greatly appreciated.
Chris Philp
There are one or two points to pick up on. A question was raised about algorithms, and it is worth saying that the risk assessments that platforms must undertake will include consideration of the operation of algorithms. It is important to make it absolutely clear that that is the case.
The shadow Minister asked about the definition of harm, and whether all the harms that might concern Parliament, and many of us as parents, will be covered. It may be helpful to refer to definition of harm provided in clause 187, at the top of page 153. Committee members will note that the definition is very wide and that subsection (2) defines it as “physical or psychological harm”, so I hope that partly answers the shadow Minister’s question.
Dean Russell (Watford) (Con)
I am jumping ahead a bit, but I know that we will discuss clause 150, Zach’s law and epilepsy in particular at some point. Given the definition that my hon. Friend has just cited, am I correct to assume that the physical harm posed to those with epilepsy who might be targeted online will be covered, and that it is not just about psychological harm?
Chris Philp
I admire my hon. Friend’s attention to the debate. The definition of harm for the harmful communications offence in clause 150 is set out in clause 150(4). In that context, harm is defined slightly differently, as
“psychological harm amounting to at least serious distress”.
The definition of harm in clause 187 that I read out is the definition of harm used elsewhere in the Bill. However, as I said before in the House and in the evidence session, the Government’s belief and intention is that epilepsy trolling would fall in the scope of clause 150, because giving someone an epileptic fit clearly does have a physical implication, as my hon. Friend said, but also causes psychological harm. Being given an epileptic fit is physically damaging, but it causes psychological harm as well.
Despite the fact that the definition of harm in clause 187 does not apply in clause 150, which has its own definition of harm, I am absolutely categoric that epilepsy trolling is caught by clause 150 because of the psychological harm it causes. I commend my hon. Friend the Member for Watford for being so attentive on the question of epilepsy, and also in this debate.
Returning to the definition of harm in clause 187, besides the wide definition covering physical and psychological harm, clause 187(4) makes it clear that harm may also arise not just directly but if the content prompts individuals to
“act in a way that results in harm to themselves or that increases the likelihood of harm to themselves”.
Clause 187(4)(b) covers content where the
“individuals do or say something to another individual that results in”
that individual suffering harm. I hope the shadow Minister is reassured that the definition of harm that applies here is extremely wide in scope.
There was a question about media literacy, which I think the hon. Member for Batley and Spen raised in an intervention. Media literacy duties on Ofcom already exist in the Communications Act 2003. The Government published a comprehensive and effective media literacy strategy about a year ago. In December—after the first version of the Bill was produced, but before the second and updated version—Ofcom updated its policy in a way that went beyond the duties contained in the previous version of the Bill. From memory, that related to the old clause 103, in the version of the Bill published in May last year, which is of course not the same clause in this version of the Bill, as it has been updated.
The hon. Member for Aberdeen North raised, as ever, some important points of detail. She asked about future proofing. The concept of harm expressed in the clause is a general concept of harm. The definition of harm is whatever is harmful to children, which includes things that we do not know about at the moment and that may arise in the future. Secondly, primary priority content and priority content that is harmful can be updated from time to time by a statutory instrument. If some new thing happens that we think deserves to be primary priority content or priority content that is harmful to children, we can update that using a statutory instrument.
The hon. Lady also asked about exclusions in clause 53(5). The first exclusion in subsection (5)(a) is illegal content, because that is covered elsewhere in the Bill—it is covered in clause 52. That is why it is excluded, because it is covered elsewhere. The second limb, subsection 5(b), covers some financial offences. Those are excluded because they are separately regulated. Financial services are separately regulated. The hon. Lady used the example of gambling. Gambling is separately regulated by the Gambling Act 2005, a review of which is imminent. There are already very strong provisions in that Act, which are enforced by the regulator, the Gambling Commission, which has a hard-edged prohibition on gambling if people are under 18.
Kirsty Blackman
However, I do not think that loot boxes even existed in 2005 when that Act was published. Loot boxes are gambling. They may not be covered by that legislation, but they are gambling. Will the Minister consider whether those harms are unintentionally excluded by clause 53?
Chris Philp
We are getting into some detail here. In the unlikely event that any member of the Committee does not know what a loot box is, it is where someone playing a game can buy extra lives or enhance the game’s functionality somehow by paying some money. There have been some cases where children have stolen their parent’s credit card and bought these things in large numbers
Kirsty Blackman
Having played lots of games, I can clarify that people do not know what they are getting with a loot box, so they are putting money forward but do not know whether they will get a really good piece of armour or a really crap piece of armour. It is literally gambling, because children do not know what will come out of the box, as opposed to just buying a really good piece of armour with £2.99 from their parent’s credit card.
Chris Philp
However, the reward is non-monetary in nature. For that reason, the Government’s view—if I can test your patience momentarily, Sir Roger, as we are straying somewhat outside this particular debate—is that loot boxes will not be covered by the gambling review, because we do not see them as gambling. However, we do see them as an issue that needs to be addressed, and that will happen via the online advertising programme, which will be overseen by the Minister for Media, Data and Digital Infrastructure, my hon. Friend the Member for Hornchurch and Upminster (Julia Lopez). That will happen shortly and advertising legislation will follow, so loot boxes will be addressed in the online advertising programme and the subsequent legislation.
The other question raised by the hon. Member for Aberdeen North was about the definition of “an appreciable number”. I have a couple of points to make. By definition, anything that is illegal is covered already in schedule 7 or through clause 52(4)(d), which we have mentioned a few times. Content that is
“primary priority content that is harmful to children”
or
“priority content that is harmful to children”
is covered in clause 53(4)(a) and (b), so we are now left with the residue of stuff that is neither illegal nor primary priority content; it is anything left over that might be harmful. By definition, we have excluded all the serious harms already, because they would be either illegal or in the priority categories. We are left with the other stuff. The reason for the qualifier “appreciable” is to make sure that we are dealing only with the residual non-priority harmful matters. We are just making sure that the duty is reasonable. What constitutes “appreciable” will ultimately get set out through Ofcom guidance, but if it was a tiny handful of users and it was not a priority harm, and was therefore not considered by Parliament to be of the utmost priority, it would be unlikely to be applicable to such a very small number. Because it is just the residual category, that is a proportionate and reasonable approach to take.
Kirsty Blackman
Given the Government’s ability to designate priority content and primary priority content through secondary legislation, the Minister is telling me that if they decided that loot boxes were not adequately covered by the future legislation coming through, and they were to discover that something like this was a big issue, they could add that to one of the two priority content designations.
Chris Philp
The hon. Member is asking me a somewhat technical question, and I hesitate to answer without taking full advice, but I think the answer is yes. The reason that loot boxes are not considered gambling in our view is that they do not have a monetary value, so the exclusion in clause 53(5)(b)(i) does not apply. On a quick off-the-cuff reading, it does not strike me immediately that the exclusions in (5)(b)(ii) or (iii) would apply to loot boxes either, so I believe—and officials who know more about this than I do are nodding—that the hon. Lady is right to say that it would be possible for loot boxes to become primary priority content or priority content by way of a statutory instrument. Yes, my belief is that that would be possible.
Question put and agreed to.
Clause 53 accordingly ordered to stand part of the Bill.
Clause 54
“Content that is harmful to children” etc
John Nicolson
I beg to move amendment 83, in clause 54, page 50, line 39, at end insert—
“(2A) Priority content designated under subsection (2) must include content that contains health-related misinformation and disinformation, where such content is harmful to adults.”
This amendment would amend Clause 54 so that the Secretary of State’s designation of “priority content that is harmful to adults” must include a description of harmful health related misinformation or disinformation (as well as other priority content that might be designated in regulations by the Secretary of State).
The Bill requires category 1 service providers to set out how they will tackle harmful content on their platforms. In order for this to work, certain legal but harmful content must be designated in secondary legislation as
“priority content that is harmful to adults.”
As yet, however, it is not known what will be designated as priority content or when. There have been indications from Government that health-related misinformation and disinformation will likely be included, but there is no certainty. The amendment would ensure that harmful health-related misinformation and disinformation would be designated as priority content that is harmful to adults.
Alex Davies-Jones
Again, Labour supports moves to ensure that there is some clarity about specific content that is deemed to be harmful to adults, but of course the Opposition have concerns about the overall aim of defining harm.
The Government’s chosen approach to regulating the online space has left too much up to secondary legislation. We are also concerned that health misinformation and disinformation—a key harm, as we have all learned from the coronavirus pandemic—is missing from the Bill. That is why we too support amendment 83. The impact of health misinformation and disinformation is very real. Estimates suggest that the number of social media accounts posting misinformation about vaccines, and the number of users following those accounts, increased during the pandemic. Research by the Centre for Countering Digital Hate, published in November 2020, suggested that the number of followers of the largest anti-vaccination social media accounts had increased by 25% since 2019. At the height of the pandemic, it was also estimated that there were 5.4 million UK-based followers of anti-vaccine Twitter accounts.
Interestingly, an Ofcom survey of around 200 respondents carried out between 12 and 14 March 2021 found that 28% of respondents had come across information about covid-19 that could be considered false or misleading. Of those who had encountered such information, respondents from minority ethnic backgrounds were twice as likely to say that the claim made to them made them think twice about the issue compared with white respondents. The survey found that of those people who were getting news and information about the coronavirus within the preceding week, 15% of respondents had come across claims that the coronavirus vaccines would alter human DNA; 18% had encountered claims that the coronavirus vaccines were a cover for the implant of trackable microchips, and 10% had encountered claims that the vaccines contained animal products.
Public health authorities, the UK Government, social media companies and other organisations all attempted to address the spread of vaccine misinformation through various strategies, including moderation of vaccine misinformation on social media platforms, ensuring the public had access to accurate and reliable information and providing education and guidance to people on how to address misinformation when they came across it.
Although studies do not show strong links between susceptibility to misinformation and ethnicity in the UK, some practitioners and other groups have raised concerns about the spread and impact of covid-19 vaccine misinformation among certain minority ethnic groups. Those concerns stem from research that shows historically lower levels of vaccine confidence and uptake among those groups. Some recent evidence from the UK’s vaccine roll-out suggests that that trend has continued for the covid-19 vaccine.
Data from the OpenSAFELY platform, which includes data from 40% of GP practices in England, covering more than 24 million patients, found that up to 7 April 2021, 96% of white people aged over 60 had received a vaccination compared with only 77% of people from a Pakistani background, 76% from a Chinese background and 69% of black people within the same age group. A 2021 survey of more than 172,000 adults in England on attitudes to the vaccine also found that confidence in covid-19 vaccines was highest in those of white ethnicity, with some 92.6% saying that they had accepted or would accept the vaccine. The lowest confidence was found in those of black ethnicity, at 72.5%. Some of the initiatives to tackle vaccine misinformation and encourage vaccine take-up were aimed at specific minority ethnic groups, and experts have emphasised the importance of ensuring that factual information about covid-19 vaccines is available in multiple different languages.
Social media companies have taken various steps to tackle misinformation on their platforms during the covid-19 pandemic, including removing or demoting misinformation, directing users to information from official sources and banning certain adverts. So, they can do it when they want to—they just need to be compelled to do it by a Bill. However, we need to go further. Some of the broad approaches to content moderation that digital platforms have taken to address misinformation during the pandemic are discussed in the Parliamentary Office of Science and Technology’s previous rapid response on covid-19 and misinformation.
More recently, some social media companies have taken specific action to counter vaccine misinformation. In February 2021, as part of its wider policies on coronavirus misinformation, Facebook announced that it would expand its efforts to remove false information about covid-19 vaccines, and other vaccines more broadly. The company said it would label posts that discuss covid-19 vaccines with additional information from the World Health Organisation. It also said it would signpost its users to information on where and when they could get vaccinated. Facebook is now applying similar measures to Instagram.
In March 2021, Twitter began applying labels to tweets that could contain misinformation about covid-19 vaccines. It also introduced a strike policy, under which users that violate its covid-19 misinformation policy five or more times would have their account permanently suspended.
YouTube announced a specific ban on covid-19 anti-vaccination videos in October 2020. It committed to removing any videos that contradict official information about the vaccine from the World Health Organisation. In March, the company said it had removed more than 30,000 misleading videos about the covid-19 vaccine since the ban was introduced. However, as with most issues, until the legislation changes, service providers will not feel truly compelled to do the right thing, which is why we must legislate and push forward with amendment 83.
Nick Fletcher (Don Valley) (Con)
I would like to speak to the clause rather than the amendment, Sir Roger. Is now the right time to do so, or are we only allowed to speak to the amendment?
The Chair
It can be, in the sense that I am minded not to have a clause stand part debate.
Nick Fletcher
Thank you, Sir Roger. I think that the Minister would agree that this is probably one of the most contentious parts of the Bill. It concerns legal but harmful content, which is causing an awful lot of concern out there. The clause says that the Secretary of State may in regulations define as
“priority content that is harmful to adults”
content that he or she considers to present
“a material risk of significant harm to an appreciable number of adults”.
We have discussed this issue in other places before, but I am deeply concerned about freedom of speech and people being able to say what they think. What is harmful to me may not be harmful to any other colleagues in this place. We would be leaving it to the Secretary of State to make that decision. I would like to hear the Minister’s thoughts on that.
Chris Philp
I am very happy to reply to the various queries that have been made. I will start with the points on vaccine disinformation raised by the hon. Members for Ochil and South Perthshire and for Pontypridd. The Government strongly agree with the points they made about the damaging effects of vaccine misinformation and the fact that many of our fellow citizens have probably died as a result of being misled into refusing the vaccine when it is, of course, perfectly safe. We strongly share the concerns they have articulated.
Over the past two years, the Department for Digital, Culture, Media and Sport has worked together with other Departments to develop a strong operational response to this issue. We have established a counter-disinformation unit within DCMS whose remit is to identify misinformation and work with social media firms to get it taken down. The principal focus of that unit during the pandemic was, of course, covid. In the past three months, it has focused more on the Russia-Ukraine conflict, for obvious reasons.
In some cases, Ministers have engaged directly with social media firms to encourage them to remove content that is clearly inappropriate. For example, in the Russia-Ukraine context, I have had conversations with social media companies that have left up clearly flagrant Russian disinformation. This is, therefore, an area that the Government are concerned about and have been acting on operationally already.
Obviously, we agree with the intention behind the amendment. However, the way to handle it is not to randomly drop an item into the Bill and leave the rest to a statutory instrument. Important and worthy though it may be to deal with disinformation, and specifically harmful health-related disinformation, there are plenty of other important things that one might add that are legal but harmful to adults, so we will not accept the amendment. Instead, we will proceed as planned by designating the list via a statutory instrument. I know that a number of Members of Parliament, probably including members of this Committee, would find it helpful to see a draft list of what those items might be, not least to get assurance that health-related misinformation and disinformation is on that list. That is something that we are considering very carefully, and more news might be forthcoming as the Bill proceeds through Parliament.
Dame Maria Miller (Basingstoke) (Con)
My hon. Friend has talked about the Department’s counter-disinformation unit. Do the Government anticipate that that function to continue, or will they expect Ofcom to do it?
Chris Philp
The work of the counter-disinformation unit is valuable. We look at these things on a spending review by spending review basis, and as far as I am aware we intend to continue with the counter-disinformation unit over the current spending review period. Clearly, I cannot commit future Ministers in perpetuity, but my personal view—if I am allowed to express it—is that that unit performs a useful function and could valuably be continued into the future. I think it is useful for the Government, as well as Ofcom, to directly have eyes on this issue, but I cannot speak for future Ministers. I can only give my right hon. Friend my own view.
I hope that I have set out my approach. We have heard the calls to publish the list so that parliamentarians can scrutinise it, and we also heard them on Second Reading.
I will now turn to the question raised by my hon. Friend the Member for Don Valley regarding freedom of expression. Those on one side of the debate are asking us to go further and to be clearer, while those on the other side have concerns about freedom of expression. As I have said, I honestly do not think that these legal but harmful provisions infringe on freedom of speech, for three reasons. First, even when the Secretary of State decides to designate content and Parliament approves of that decision through the affirmative procedure—Parliament gets to approve, so the Secretary of State is not acting alone—that content is not being banned. The Bill does not say that content designated as legal but harmful should immediately be struck from every corner of the internet. It simply says that category 1 companies—the big ones—have to do a proper risk assessment of that content and think about it properly.
Secondly, those companies have to have a policy to deal with that content, but that policy is up to them. They could have a policy that says, “It is absolutely fine.” Let us say that health disinformation is on the list, as one would expect it to be. A particular social media firm could have a policy that says, “We have considered this. We know it is risky, but we are going to let it happen anyway.” Some people might say that that is a weakness in the Bill, while others might say that it protects freedom of expression. It depends on one’s point of view, but that is how it works. It is for the company to choose and set out its policy, and the Bill requires it to enforce it consistently. I do not think that the requirements I have laid out amount to censorship or an unreasonable repression of free speech, because the platforms can still set their own terms and conditions.
There is also the general duty to have regard to free speech, which is introduced in clause 19(2). At the moment, no such duty exists. One might argue that the duty could be stronger, as my hon. Friend suggested previously, but it is unarguable that, for the first time ever, there is a duty on the platforms to have regard to free speech.
Nick Fletcher
The argument has been made that the social media companies are doing this anyway, but two wrongs don’t make a right. We need to stop them doing it. I understand what we are trying to do here. We can see straight away that the Opposition want to be tighter on this. At a later date, if the Bill goes through as it is, freedom of speech will be gradually suppressed, and I am really concerned about that. My hon. Friend said that it would come back to Parliament, which I am pleased about. Are the priorities going to be written into the Bill? Will we be able to vote on them? If the scope is extended at any point in time, will we be able to vote on that, or will the Secretary of State just say, “We can’t have that so we’re just going to ban it”?
Chris Philp
I will answer the questions in reverse order. The list of harms will not be in the Bill. The amendment seeks to put one of the harms in the Bill but not the others. So no, it will not be in the Bill. The harms—either the initial list or any addition to or subtraction from the list—will be listed in an affirmative statutory instrument, which means that the House will be able to look at it and, if it wants, to vote on it. So Parliament will get a chance to look at the initial list, when it is published in an SI. If anything is to be added in one, two or three years’ time, the same will apply.
Nick Fletcher
So will we be able to vote on any extension of the scope of the Bill at any time? Will that go out to public consultation as well?
Chris Philp
Yes. There is an obligation on the Secretary of State to consult—[Interruption.] Did I hear someone laugh?—before proposing a statutory instrument to add things. There is a consultation first and then, if extra things are going to be added—in my hon. Friend’s language, if the scope is increased—that would be votable by Parliament because it is an affirmative SI. So the answer is yes to both questions. Yes there will be consultation in advance, and yes, if this Government or a future Government wanted to add anything, Parliament could vote on it if it wanted to because it will be an affirmative SI. That is a really important point.
Chris Philp
In a moment; I want to answer the other point made by my hon. Friend the Member for Don Valley first. He said that two wrongs don’t make a right. I am not defending the fact that social media firms act in a manner that is arbitrary and censorious at the moment. I am not saying that it is okay for them to carry on. The point that I was making was a different one. I was saying that they act censoriously and arbitrarily at times at the moment. The Bill will diminish their ability to do that in a couple of ways. First, for the legal but harmful stuff, which he is worried about, they will have a duty to act consistently. If they do not, Ofcom will be able to enforce against them. So their liberty to behave arbitrarily, for this category of content at least, will be circumscribed. They will now have to be consistent. For other content that is outside the scope of this clause —which I guess therefore does not worry my hon. Friend—they can still be arbitrary, but for this they have got to be consistent.
There is also the duty to have regard to freedom of expression, and there is a protection of democratic and journalistic importance in clauses 15 and 16. Although those clauses are not perfect and some people say they should be stronger, they are at least better than what we have now. When I say that this is good for freedom of speech, I mean that nothing here infringes on freedom of speech, and to the extent that it moves one way or the other, it moves us somewhat in the direction of protecting free speech more than is the case at the moment, for the reasons I have set out. I will be happy to debate the issue in more detail either in this Committee or outside, if that is helpful and to avoid trying the patience of colleagues.
The Chair
Order. Before we go any further, I know it is tempting to turn around and talk to Back Benchers, but that makes life difficult for Hansard because you tend to miss the microphone. It is also rather discourteous to the Chair, so in future I ask the Minister to please address the Chair. I call the shadow Minister.
Alex Davies-Jones
I thank the Minister for giving way; I think that is what he was doing as he sat down.
Alex Davies-Jones
Just for clarity, the hon. Member for Don Valley and the Minister have said that Labour Members are seeking to curtail or tighten freedom of expression and freedom of speech, but that is not the case. We fundamentally support free speech, as we always have been. The Bill addresses systems and processes, and that is what it should do—the Minister, the Labour party and I are in full alignment on that. We do not think that the Bill should restrict freedom of speech. I would just like to put that on the record.
We also share the concerns expressed by the hon. Member for Don Valley about the Secretary of State’s potential powers, the limited scope and the extra scrutiny that Parliament might have to undertake on priority harms, so I hope he will support some of our later amendments.
Chris Philp
I am grateful to the shadow Minister for confirming her support for free speech. Perhaps I could take this opportunity to apologise to you, Sir Roger, and to Hansard for turning round. I will try to behave better in future.
John Nicolson
I find myself not entirely reassured, so I think we should press the amendment to a vote.
Question put, That the amendment be made.
The Chair
As I have indicated already, I do not propose that we have a clause stand part debate. It has been exhaustively debated, if I may say so.
Clause 54 ordered to stand part of the Bill.
Clause 55
Regulations under sections 53 and 54
Alex Davies-Jones
I beg to move amendment 62, in clause 55, page 52, line 4, after “OFCOM” insert
“and other stakeholders, including organisations that campaign for the removal of harmful content online”.
This amendment requires the Secretary of State to consult other stakeholders before making regulations under clause 53 or 54.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 56 stand part.
Alex Davies-Jones
We all know that managing harmful content, unlike illegal content, is more about implementing systems that prevent people from encountering it rather than removing it entirely. At the moment, there are no duties on the Secretary of State to consult anyone other than Ofcom ahead of making regulations under clauses 53 and 54. We have discussed at length the importance of transparency, and surely the Minister can agree that the process should be widened, as we have heard from those on the Government Back Benches.
Labour has said time and again that it should not be for the Secretary of State of the day to determine what constitutes harmful content for children or adults. Without the important consultation process outlined in amendment 62, there are genuine concerns that that could lead to a damaging precedent whereby a Secretary of State, not Parliament, has the ability to determine what information is harmful. We all know that the world is watching as we seek to work together on this important Bill, and Labour has genuine concerns that without a responsible consultation process, as outlined in amendment 62, we could inadvertently be suggesting to the world that this fairly dogmatic approach is the best way forward.
Amendment 62 would require the Secretary of State to consult other stakeholders before making regulations under clauses 53 and 54. As has been mentioned, we risk a potentially dangerous course of events if there is no statutory duty on the Secretary of State to consult others when determining the definition of harmful content. Let me draw the Minister’s attention to the overarching concerns of stakeholders across the board. Many are concerned that harmful content for adults requires the least oversight, although there are potential gaps that mean that certain content—such as animal abuse content—could completely slip through the net. The amendment is designed to ensure that sufficient consultation takes place before the Secretary of State makes important decisions in directing Ofcom.
Kim Leadbeater
On that point, I agree wholeheartedly with my hon. Friend. It is important that the Secretary of State consults campaign organisations that have expertise in the relevant areas. Much as we might want the Secretary of State to be informed on every single policy issue, that is unrealistic. It is also important to acknowledge the process that we have been through with the Bill: the expertise of organisations has been vital in some of the decisions that we have had to make. My hon. Friend gave a very good example, and I am grateful to animal welfare groups for their expertise in highlighting the issue of online abuse of animals.
Alex Davies-Jones
I completely agree with my hon. Friend. As parliamentarians we are seen as experts in an array of fields. I do not purport to be an expert in all things, as it is more a jack of all trades role, and it would be impossible for one Secretary of State to be an expert in everything from animal abuse to online scam ads, from fraud to CSAM and terrorism. That is why it is fundamental that the Secretary of State consults with experts and stakeholders in those fields, for whom these things are their bread and butter—their day job every day. I hope the Minister can see that regulation of the online space is a huge task to take on for us all. It is Labour’s view that any Secretary of State would benefit from the input of experts in specific fields. I urge him to support the amendment, especially given the wider concerns we have about transparency and power sharing in the Bill.
It is welcome that clause 56 will force Ofcom, as the regulator, to carry out important reviews that will assess the extent to which content is harmful to children and adults when broadly appearing on user-to-user services. As we have repeatedly said, transparency must be at the heart of our approach. While Labour does not formally oppose the clause, we have concerns about subsection (5), which states:
“The reports must be published not more than three years apart.”
The Minister knows that the Bill has been long awaited, and we need to see real, meaningful change and updates now. Will he tell us why it contains a three-year provision?
Kirsty Blackman
I thank the Minister for his clarification earlier and his explanation of how the categories of primary priority content and priority content can be updated. That was helpful.
Amendment 62 is excellent, and I am more than happy to support it.
Dame Maria Miller
I have a short comment on clause 56, which is an important clause because it will provide an analysis of how the legislation is working, and that is what Members want to see. To the point that the hon. Member for Pontypridd set out, it is right that Ofcom probably will not report until 2026, given the timeframe for the Bill being enacted. I would not necessarily want Ofcom to report sooner, because system changes take a long time to bed in. It does pose the question, however, of how Parliament will be able to analyse whether the legislation or its approach need to change between now and 2026. That reiterates the need—which I and other hon. Members have pointed out—for some sort of standing committee to scrutinise the issues. I do not personally think it would be right to get Ofcom to report earlier, because it might be an incomplete report.
Chris Philp
I have heard my right hon. Friend’s points about a standing Joint Committee for post-legislative implementation scrutiny. On the comments about the time, I agree that the Ofcom review needs to be far enough into the future that it can be meaningful, hence the three-year time period.
On the substance of amendment 62, tabled by the shadow Minister, I can confirm that the Government are already undertaking research and working with stakeholders on identifying what the priority harms will be. That consideration includes evidence from various civil society organisations, victims organisations and many others who represent the interests of users online. The wider consultation beyond Ofcom that the amendment would require is happening already as a matter of practicality.
We are concerned, however, that making this a formal consultation in the legal sense, as the amendment would, would introduce some delays while we do so, because a whole sequence of things have to happen after Royal Assent. First, we have to designate the priority harms by statutory instrument, and then Ofcom has to publish its risk assessments and codes of practice. If we insert into that a formal legal consultation step, it would add at least four or even six months into the process of implementing the Act. I know that that was not the hon. Lady’s intention and that she is concerned about getting the Act implemented quickly. For that reason, the Government do not want to insert a formal legal consultation step into the process, but I am happy to confirm that we are engaging in the consultation already on an informal basis and will continue to do so. I ask respectfully that amendment 62 be withdrawn.
The purpose of clauses 55 and 56 has been touched on already, and I have nothing in particular to add.
Alex Davies-Jones
I am grateful for the Minister’s comments on the time that these things would take. I cannot see how they could not happen succinctly along with the current consultation, and why it would take an additional four to six months. Could he clarify that?
Chris Philp
A formal statutory consultation could happen only after the passage of the Bill, whereas the informal non-statutory consultation we can do, and are doing, now.
Question put, That the amendment be made.
Alex Davies-Jones
I have some brief comments on the clause. The Labour party very much welcomes the addition to user verification duties in the revised Bill. A range of groups, including Clean Up the Internet, have long campaigned for a verification requirement process, so this is a positive step forward.
We do, however, have some concerns about the exact principles and minimum standards for the user verification duty, which I will address when we consider new clause 8. We also have concerns about subsection (2), which states:
“The verification process may be of any kind (and in particular, it need not require documentation to be provided).”
I would be grateful if the Minister could clarify exactly what that process will look like in practice.
Lastly, as Clean Up the Internet has said, we need further clarification on whether users will be given a choice of how they verify and of the verification provider itself. We can all recognise that there are potential down- sides to the companies that own the largest platforms —such as Meta, Google, Twitter and ByteDance—developing their own in-house verification processes and making them the only option for users wishing to verify on their platform. Indeed, some users may have reservations about sharing even more personal data with those companies. Users of multiple social media platforms can find it inconvenient and confusing, and could be required to go through multiple different verification processes on different platforms to achieve the same outcome of confirming their real name.
There is a risk of the largest platforms seeking to leverage their dominance of social media to capture the market for ID verification services, raising competition concerns. I would be grateful if the Minister could confirm his assessment of the potential issues around clause 57 as it stands.
Dame Maria Miller
I rise to welcome clause 57. It is an important part of the Bill and shows the Government acknowledging that anonymity can have a significant impact on the harms that affect victims. There is a catalogue of evidence of the harm done by those posting anonymously. Anonymity appears to encourage abusive behaviour, and there is evidence dating back to 2015 showing that anonymous accounts are more likely to share sexist comments and that online harassment victims are often not able to identify their perpetrators because of the way anonymity works online. The Government are doing an important thing here and I applaud them.
I underline that again by saying that recent research from Compassion in Politics showed that more than one in four people were put off posting on social media because of the fear of abuse, particularly from anonymous posters. Far from the status quo promoting freedom of speech, it actually deters freedom of speech, as we have said in other debates, and it particularly affects women. The Government are to be applauded for this measure.
In the work I was doing with the FA and the Premier League around this very issue, I particularly supported their call for a twin-track approach to verified accounts that said that they should be the default and that people should automatically be able to opt out of receiving posts from unverified accounts. The Bill does not go as far as that, and I can understand the Government’s reasons, but I gently point out that 81% of the people who took part in the Compassion in Politics research would willingly provide identification to get a verified account if it reduced unverified posts. They felt that was important. Some 72% supported the idea if it reduced the amount of anonymous posting.
I am touching on clause 58, but I will not repeat myself when we debate that clause. I hope that it will be possible in the code of practice for Ofcom to point out the clear benefits of having verified accounts by default and perhaps urge responsible providers to do the responsible thing and allow their users to automatically filter out unverified accounts. That is what users want, and it is extraordinary that large consumer organisations do not seem to want to give consumers what they want. Perhaps Ofcom can help those organisations understand what their consumers want, certainly in Britain.
Kirsty Blackman
The right hon. Lady’s speech inspired me to stand up and mention a couple of things. My first question is about using empowerment around this clause. The clause applies only to adults. I can understand the issues that there may be with verifying the identity of children, but if that means that children are unable to block unverified accounts because they cannot verify their own account, the internet becomes a less safe place for children than for adults in this context, which concerns me.
To be honest, I do not know how children’s identities could be verified, but giving them access to the filters that would allow them to block unverified accounts, whether or not they are able to verify themselves—because they are children and therefore may not have the identity documentation they need—would be very helpful.
I appreciate the points that the right hon. Member was making, and I completely agree with her on the requirement for user verification, but I have to say that I believe there is a place for anonymity on the internet. I can understand why, for a number of people, that is the only way that they can safely access some of the community support that they need.
Dame Maria Miller
Just for clarity, the twin-track approach does not outlaw anonymity. It just means that people have verified accounts by default; they do not have to opt into it.
Kirsty Blackman
I appreciate that clarification. I just wanted to make it absolutely clear that I strongly believe that anonymity is a very good protection, not just for people who intend to do bad on the internet, but for people who are seeking out community, particularly. I think that that is important.
If you will allow me to say a couple of things about the next clause, Sir Roger, Mencap raised the issue of vulnerable users, specifically vulnerable adult users, in relation to the form of identity verification. If the Minister or Ofcom could give consideration to perhaps including travel passes or adult passes, it might make the internet a much easier place to navigate for people who do not have control of their own documentation—they may not have access to their passport, birth certificate, or any of that sort of thing—but who would be able to provide a travel pass, because that is within their ownership.
Chris Philp
We have heard quite a lot about the merits of clause 57, and I am grateful to colleagues on both side for pointing those out. The hon. Member for Pontypridd asked about the effectiveness of the user identity verification processes and how those might occur—whether they would be done individually by each company for their own users, or whether a whole industry would develop even further, with third parties providing verification that could then be used across a whole number of companies.
Some of those processes exist already in relation to age verification, and I think that some companies are already active in this area. I do not think that it would be appropriate for us, in Parliament, to specify those sorts of details. It is ultimately for Ofcom to issue that guidance under clause 58, and it is, in a sense, up to the market and to users to develop their own preferences. If individual users prefer to verify their identity once and then have that used across multiple platforms, that will itself drive the market. I think that there is every possibility that that will happen. [Interruption.]
The Chair
Order. There is a Division on the Floor of the House. The Committee will sit again in 15 minutes. As far as I am aware, there will only be one vote on this; if there are two, we will return 15 minutes later than that.
Chris Philp
I was just concluding my remarks on clause stand part, Sir Roger. User choice and Ofcom guidance will ultimately determine the shape of this market.
The shadow Minister, the hon. Member for Pontypridd, expressed concerns about privacy. That is of course why the list of people Ofcom must consult—at clause 58(3)(a)—specifies the Information Commissioner, to ensure that Ofcom’s guidance properly protects the privacy of users, for the reasons that the shadow Minister referred to in her speech.
Finally, on competition, if anyone attempts to develop an inappropriate monopoly position in this area, the Competition and Markets Authority’s usual powers will apply. On that basis, I commend the clause to the Committee.
Question put and agreed to.
Clause 57 accordingly ordered to stand part of the Bill.
Clause 58
OFCOM’s guidance about user identity verification
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
As we have said previously, it is absolutely right that Ofcom produces guidance for providers of category 1 services to assist with their compliance with the duty. We very much welcome the inclusion and awareness of identity verification forms for vulnerable adult users in subsection (2); once again, however, we feel that that should go further, as outlined in new clause 8.
Chris Philp
Clause 58, which was touched on in our last debate, simply sets out Ofcom’s duty to publish guidance for category 1 services to assist them in complying with the user identification duty set out in clause 57. We have probably covered the main points, so I will say nothing further.
Question put and agreed to.
Clause 58 accordingly ordered to stand part of the Bill.
Clause 59
Requirement to report CSEA content to the NCA
Question proposed, That the clause stand part of the Bill.
Barbara Keeley (Worsley and Eccles South) (Lab)
You are really moving us at pace, Sir Roger. It is a pleasure to serve in Committee with you in the Chair.
It is welcome that regulated services will have to report all child sexual exploitation and abuse material that they detect on their platform. The Government’s decision to move away from the approach of a regulatory code of practice to a mandatory reporting requirement is an important improvement to the draft Bill.
For companies to report child sexual exploitation and abuse material correctly to the mandatory reporting body, they will need access to accurate datasets that will determine whether something that they are intending to report is child sexual exploitation and abuse content. What guidance will be made available to companies so that they can proactively detect CSEA, and what plans are in place to assist companies to identify potential CSEA that has not previously been identified? The impact assessment mentions that, for example, BT is planning to use the Internet Watch Foundation’s hash list, which is compliant with UK law enforcement standards, to identify CSEA proactively. Hashing is a technology used to prevent access to known CSEA; a hash is a unique string of letters and numbers which is applied to an image and which can then be matched every time a user attempts to upload a known illegal image to a platform. It relies, however, on CSEA already having been detected. What plans are in place to assist companies to identify potential CSEA?
Finally, it is important that the introduction of mandatory reporting does not impact on existing international reporting structures. Many of the largest platforms in the scope of the Bill are US-based and required under US law to report CSEA material detected on their platform to the National Centre for Missing and Exploited Children, which ensures that information relevant to UK law enforcement is referred to it for investigation.
Chris Philp
To answer the shadow Minister’s question about the duty to detect CSEA proactively—because, as she says, we have to detect it before we can report it—I confirm that there are already duties in the Bill to prevent and detect CSEA proactively, because CSEA is a priority offence in the schedule 6 list of child exploitation and abuse offences, and there is a duty for companies to prevent those proactively. In preventing them proactively, they will by definition identify them. That part of her question is well covered.
The hon. Lady also asked about the technologies available to those companies, including hash matching—comparing images against a known database of child sexual exploitation images. A lot of technology is being developed that can proactively spot child sexual exploitation in new images that are not on the hash matching database. For example, some technology combines age identification with nude image identification; by putting them together, we can identify sexual exploitation of children in images that are new and are not yet in the database.
To ensure that such new technology can be used, we have the duties under clause 103, which gives Ofcom the power to mandate—to require—the use of certain accredited technologies in fighting not just CSEA, but terrorism. I am sure that we will discuss that more when we come to that clause. Combined, the requirement to proactively prevent CSEA and the ability to specify technology under clause 103 will mean that companies will know about the content that they now, under clause 59, have to report to the National Crime Agency. Interestingly, the hon. Member for Worsley and Eccles South mentioned that that duty already exists in the USA, so it is good that we are matching that requirement in our law via clause 59, which I hope that the Committee will agree should stand part of the Bill.
Question put and agreed to.
Clause 59 accordingly ordered to stand part of the Bill.
Clause 60
Regulations about reports to the NCA
Question proposed, That the clause stand part of the Bill.
Barbara Keeley
The additional regulations created by the Secretary of State in connection with the reports will have a lot resting on them. It is vital that they receive the appropriate scrutiny when the time comes. For example, the regulations must ensure that referrals to the National Crime Agency made by companies are of a high quality, and that requirements are easy to comply with. Prioritising the highest risk cases will be important, particularly where there is an immediate threat to the safety and welfare of a child.
Clause 60 sets out that the Secretary of State’s regulations must include
“provision about cases of particular urgency”.
Does the Minister have an idea what that will look like? What plans are in place to ensure that law enforcement can prioritise the highest risk and harm cases?
Under the new arrangements, the National Crime Agency as the designated body, the Internet Watch Foundation as the appropriate authority for notice and takedown in the UK, and Ofcom as the regulator for online harms will all hold a vast amount of information on the scale of the threat posed by child sexual exploitation and illegal content. How will the introduction of mandatory reporting assist those three organisations in improving their understanding of how harm manifests online? How does the Minister envisage the organisations working together to share information to better protect children online?
Kirsty Blackman
I am glad that clause 60 will be in the Bill and that there will be a duty to report to the NCA. On subsection (3), though, I would like the Minister to clarify that if the Secretary of State believes that the Scottish Ministers would be appropriate people to consult, they would consult them, and the same for the Northern Ireland Executive.
I would appreciate the Minister explaining how clause 61 will work in a Scottish context, because that clause talks about the Crime and Courts Act 2013. Does a discussion need to be had with Scottish Ministers, and perhaps Northern Ireland Ministers as well, to ensure that information sharing takes place seamlessly with devolved areas with their own legal systems, to the same level as within England and Wales? If the Minister does not have an answer today, which I understand that he may not in detail, I am happy to hear from him later; I understand that it is quite a technical question.
Chris Philp
The hon. Member for Worsley and Eccles South asks about the prioritisation of reports made to the NCA under the new statutory provisions. The prioritisation of investigations is an operational matter for the NCA, acting as a law enforcement body. I do not think it would be right either for myself as a Minister or for Parliament as a legislative body to specify how the NCA should conduct its operational activities. I imagine that it would pursue the most serious cases as a matter of priority, and if there is evidence of any systemic abuse it would also prioritise that, but it really is a matter for the NCA, as an operationally independent police force, to decide for itself. I think it is fairly clear that the scope of matters to be contained in these regulations is fairly comprehensive, as one would expect.
On the questions raised by the hon. Member for Aberdeen North, the Secretary of State might consult Scottish Ministers under clause 63(6)(c), particularly those with responsibility for law enforcement in Scotland, and the same would apply to other jurisdictions. On whether an amendment is required to cover any matters to do with the procedures in Scotland equivalent to the matter covered in clause 61, we do not believe that any equivalent change is required to devolved Administration law. However, in order to be absolutely sure, we will get the hon. Lady written confirmation on that point.
Barbara Keeley
I am not sure that the Minister has answered my question on clause 60. I think we all agree that law enforcement agencies can decide their own priorities, quite rightly, but clause 60(2)(d) sets out that the Secretary of State’s regulations must include
“provision about cases of particular urgency”.
I asked the Minister what that would look like.
Also, we think it is pretty important that the National Crime Agency, the Internet Watch Foundation and Ofcom work together on mandatory reporting. I asked him how he envisaged them working together to share information, because the better they do that, the more children are protected.
Chris Philp
I apologise for missing those two points. On working together, the hon. Lady is right that agencies such as the Internet Watch Foundation and others should co-operate closely. There is already very good working between the Internet Watch Foundation, law enforcement and others—they seem to be well networked together and co-operating closely. It is appropriate to put on the record that Parliament, through this Committee, thinks that co-operation should continue. That communication and the sharing of information on particular images is obviously critical.
As the clause states, the regulations can set out expedited timeframes in cases of particular urgency. I understand that to mean cases where there might be an immediate risk to a child’s safety, or where somebody might be at risk in real time, as opposed to something historic—for example, an image that might have been made some time ago. In cases where it is believed abuse is happening at the present time, there is an expectation that the matter will be dealt with immediately or very close to immediately. I hope that answers the shadow Minister’s questions.
Question put and agreed to.
Clause 60 accordingly ordered to stand part of the Bill.
Clause 61 ordered to stand part of the Bill.
Clause 62
Offence in relation to CSEA reporting
Chris Philp
I beg to move amendment 1, in clause 62, page 55, line 14, leave out “maximum summary term for either-way offences” and insert “general limit in a magistrates’ court”.
Amendments 1 to 5 relate to the maximum term of imprisonment on summary conviction of an either-way offence in England and Wales. Amendments 1 to 4 insert a reference to the general limit in a magistrates’ court, meaning the time limit in section 224(1) of the Sentencing Code, which, currently, is 12 months.
The Chair
With this it will be convenient to consider Government amendments 4, 2, 3 and 5.
Chris Philp
These amendments make some technical drafting changes to the Bill in relation to sentencing penalties for either-way offences in the courts of England and Wales. They bring the Bill into line with recent changes implemented following the passage of the Judicial Review and Courts Act 2022. The change uses the new term
“general limit in a magistrates’ court”
to account for any future changes to the sentencing limit in the magistrates court. The 2022 Act includes a secondary power to switch, by regulations, between a 12-month and six-month maximum sentence in the magistrates court, so we need to use the more general language in this Bill to ensure that changes back and forth can be accommodated. If we just fix a number, it would become out of sync if switches are made under the 2022 Act.
Amendment 1 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Barbara Keeley
Clause 63 sets out that the CSEA content required to be reported must have been published, generated, uploaded or shared either in the UK, by a UK citizen, or including a child in the UK. Subsection (6) requires services to provide evidence of such a link to the UK, which might be quite difficult in some circumstances. I would appreciate the Minister outlining what guidance and support will be made available to regulated services to ensure that they can fulfil their obligations. This is about how services are to provide evidence of such a link to the UK.
Takeovers, mergers and acquisitions are commonplace in the technology industry, and many companies are bought out by others based overseas, particularly in the United States. Once a regulated service has been bought out by a company based abroad, what plans are in place to ensure that either the company continues to report to the National Crime Agency or that it is enabled to transition to another mandatory reporting structure, as may be required in another country in the future. That is particularly relevant as we know that the European Union is seeking to introduce mandatory reporting functions in the coming years.
Chris Philp
Clause 62 creates an offence, as we discussed earlier, of knowingly or recklessly providing inaccurate information to the NCA in relation to CSEA reporting, the penalty for which is imprisonment, a fine or both. Where a company seeks to evade its responsibility, or disregards the importance of the requirement to report CSEA by providing inaccurate information, it will be liable for prosecution. We are backing the requirement to report CSEA with significant criminal powers.
Clause 63 provides definitions for the terms used in chapter 2 of part 4, in relation to the requirement to report CSEA. In summary, a UK provider of a regulated service is defined as a provider that is
“incorporated or formed under the law of any part of the United Kingdom”
or where it is
“individuals who are habitually resident in the United Kingdom”.
The shadow Minister asked about the test and what counts, and I hope that provides the answer. We are defining CSEA content as content that a company becomes aware of containing CSEA. A company can become aware of that by any means, including through the use of automated systems and processes, human moderation or user reporting.
With regard to the definition of UK-linked CSEA, which the shadow Minister also asked about, that refers to content that may have been published and shared in the UK, or where the nationality or location of a suspected offender or victim is in the UK. The definition of what counts as a UK link is quite wide, because it includes not only the location of the offender or victim but where the content is shared. That is a wide definition.
Kirsty Blackman
I have a specific question—the Minister answered a similar question from me earlier. The Bill says that the location of the child “is” in the UK. Would it be reasonable to expect that if a company suspected the child “was” in the UK, although not currently, that would be in scope as something required to be reported? I know that is technical, but if the “was” is included in the “is” then that is much wider and more helpful than just including the current location.
Chris Philp
If the child had been in the UK when the offence was committed, that would ordinarily be subject to UK criminal law, because the crime would have been committed in the UK. The test is: where was the child or victim at the time the offence was committed? As I said a moment ago, however, the definition of “UK-linked” is particularly wide and includes
“the place where the content was published, generated, uploaded or shared.”
The word “generated”—I am reading from clause 63(6)(a), at the top of page 56—is clearly in the past tense and would include the circumstance that the hon. Lady described.
Barbara Keeley
What the Minister has said is helpful, but the question I asked was about what guidance and support will be made available to regulated services. We all want this to work, because it is one of the most important aspects of the Bill—many aspects are important. He made it clear to us that the definition is quite wide, for both the general definitions and the “UK-linked” content. The point of the question was, given the possible difficulties in some circumstances, what guidance and support will be made available?
Chris Philp
I anticipate that the National Crime Agency will issue best practice guidance. A fair amount of information about the requirements will also be set out in the regulations that the Secretary of State will issue under clause 60, which we have already debated. So it is a combination of those regulations and National Crime Agency best practice guidance. I hope that answers the question.
Finally, on companies being taken over, if a company ceases to be UK-linked, we would expect it to continue to discharge its reporting duties, which might include reporting not just in the UK but to its domestic reporting agency—we have already heard the US agency described and referenced.
I hope that my answers demonstrate that the clause is intended to be comprehensive and effective. It should ensure that the National Crime Agency gets all the information it needs to investigate and prosecute CSEA in order to keep our children safe.
Question put and agreed to.
Clause 62, as amended, accordingly ordered to stand part of the Bill.
Clause 63 ordered to stand part of the Bill.
Clause 64
Transparency reports about certain Part 3 services
Barbara Keeley
I beg to move amendment 54, in clause 64, page 56, line 29, leave out “Once” and insert “Twice”.
This amendment would change the requirement for transparency report notices from once a year to twice a year.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Amendment 55, in schedule 8, page 188, line 42, at end insert—
“31A The notice under section 64(1) must require the provider to provide the following information about the service—
(a) the languages in which the service has safety systems or classifiers;
(b) details of how human moderators employed or engaged by the provider are trained and supported;
(c) the process by which the provider takes decisions about the design of the service;
(d) any other information that OFCOM considers relevant to ensuring the safe operation of the service.”
This amendment sets out details of information Ofcom must request be provided in a transparency report.
That schedule 8 be the Eighth schedule to the Bill.
Clause 65 stand part.
Barbara Keeley
The duties on regulated services set out in the clause are welcome. Transparency reports will be a vital tool to hold platforms to account for understanding the true drivers of online harm. However, asking platforms to submit transparency reports once a year does not reflect how rapidly we know the online world changes. As we have seen time and again, the online environment can shift significantly in a matter of months, if not weeks. We have seen that in the rise of disinformation about covid, which we have talked about, and in the accelerated growth of platforms such as TikTok.
Increasing the frequency of transparency reports from annual to biannual will ensure that platforms stay on the pulse of emergent risks, allowing Ofcom to do the same in turn. The amendment would also mean that companies focus on safety, rather than just profit. As has been touched on repeatedly, that is the culture change that we want to bring about. It would go some way towards preventing complacency about reporting harms, perhaps forcing companies to revisit the nature of harm analysis, management and reduction. In order for this regime to be world-leading and ambitious—I keep hearing the Minister using those words about the Bill—we must demand the most that we can from the highest-risk services, including on the important duty of transparency reporting.
Moving to clauses 64 and 65 stand part, transparency reporting by companies and Ofcom is important for analysing emerging harms, as we have discussed. However, charities have pointed out that platforms have a track record of burying documents and research that point to risk of harm in their systems and processes. As with other risk assessments and reports, such documents should be made public, so that platforms cannot continue to hide behind a veil of secrecy. As I will come to when I speak to amendment 55, the Bill must be ambitious and bold in what information platforms are to provide as part of the clause 64 duty.
Clause 64(3) states that, once issued with a notice by Ofcom, companies will have to produce a transparency report, which must
“be published in the manner and by the date specified in the notice.”
Can the Minister confirm that that means regulated services will have to publish transparency reports publicly, not just to Ofcom? Can he clarify that that will be done in a way that is accessible to users, similarly to the requirements on services to make their terms of service and other statements clear and accessible? Some very important information will be included in those reports that will be critical for researchers and civil society when analysing trends and harms. It is important that the data points outlined in schedule 8 capture the information needed for those organisations to make an accurate analysis.
Kim Leadbeater
The evidence we heard from Frances Haugen set out how important transparency is. If internet and service providers have nothing to hide, transparency is surely in their interests as well. From my perspective, there is little incentive for the Government not to support the amendment, if they want to help civil society, researchers, academics and so on in improving a more regulated approach to transparency generally on the internet, which I am sure we all agree is a good thing.
Barbara Keeley
I very much agree. We cannot emphasis that enough, and it is useful that my hon. Friend has set that out, adding to what I was saying.
Amendment 55 sets out the details of the information that Ofcom must request to be provided in a transparency report in new paragraph 31A. First, transparency disclosures required by the Bill should include how large companies allocate resources to tackling harm in different languages —an issue that was rightly raised by the hon. Member for Ochil and South Perthshire. As we heard from Frances Haugen, many safety systems at Meta have only a subset of detection systems for languages other than English. Languages such as Welsh have almost no safety systems live on Facebook. It is neither fair nor safe.
When we consider that more than 250 languages are spoken in London alone, the inconsistency of safety systems becomes very concerning. Charities have warned that people accessing Facebook in different languages are being exposed to very different levels of risk, with some versions of Facebook having few or none of the safety systems that protect other versions of the site in different languages.
When giving evidence to the Committee last month, Richard Earley disclosed that Meta regulated only 70 languages. Given that around 3 billion people use Facebook on a monthly basis across the world, that is clearly inadequate.
Dean Russell
One of the things we found on the Joint Committee last year was the consistent message that we should not need to put this Bill in place. I want to put on the record my continued frustration that Meta and the other social media platforms are requiring us to put this Bill in place because they are not doing the monitoring, engaging in that way or putting users first. I hope that the process of going through the Bill has helped them to see the need for more monitoring. It is disappointing that we have had to get to this point. The UK Government are having to lead the world by putting this Bill in place—it should not be necessary. I hope that the companies do not simply follow what we are putting forward, but go much further and see that it is imperative to change the way they work and support their users around the world.
Barbara Keeley
I thank the hon. Gentleman and I agree. It is a constant frustration that we need this Bill. We do need it, though. In fact, amendment 55 would really assist with that, by requiring those services to go further in transparency reporting and to disclose
“the languages in which the service has safety systems or classifiers”.
We need to see what they are doing on this issue. It is an easily reported piece of information that will have an outsized impact on safety, even for English speakers. It will help linguistic groups in the multilingual UK and around the world.
Reporting on language would not be a big burden on companies. In her oral evidence, Frances Haugen told the Committee that large platforms can trivially produce this additional data merely by changing a single line of code when they do their transparency reports. We must not become wrapped up in the comfort of the language we all speak and ignore the gaping loophole left for other languages, which allows harms to slip through.
Chris Philp
To start with, it is worth saying that clause 64 is extremely important. In the course of debating earlier clauses, Opposition Members rightly and repeatedly emphasised how important it is that social media platforms are compelled to publish information. The testimony that Frances Haugen gave to the Joint Committee and to this Committee a few weeks ago demonstrates how important that is. Social media platforms are secretive and are not open. They seek to disguise what is going on, even though the impact of what they are doing has a global effect. So the transparency power in clause 64 is a critical part of the Bill and will dramatically transform the insights of parliamentarians, the wider public, civil society campaigners and academics. It will dramatically open up the sense of what is going on inside these companies, so it is extremely important indeed.
Amendment 54 seeks to increase the frequency of transparency reporting from once a year to twice a year. To be honest, we do not want to do this unreasonably frequently, and our sense is that once a year, rather than twice a year, is the right regularity. We therefore do not support the amendment. However, Members will notice that there is an ability in clause 64(12) for the Secretary of State, by regulation, to
“amend subsection (1) so as to change the frequency of the transparency reporting process.”
If it turns out in due course that once a year is not enough and we would like to do it more frequently—for example, twice a year—there is the power for those regulations to be used so that the reporting occurs more frequently. The frequency is not set in stone.
I turn to amendment 55, which sets out a number of topics that would be included in reporting. It is important to say that, as a quick glance at schedule 8 shows, the remit of the reports is already extremely wide in scope. Hon. Members will see that paragraph 5 specifies that reports can cover
“systems and processes for users to report content which they consider to be illegal”
or “harmful”, and so on. Paragraph 6 mentions:
“The systems and processes that a provider operates to deal with illegal content, content that is harmful to children”,
and so on. Therefore, the topics that amendment 55 speaks to are already covered by the schedule, and I would expect such things to be reported on. We have given Ofcom the explicit powers to do that and, rather than prescribe such details in the Bill, we should let Ofcom do its job. It certainly has the powers to do such things—that is clearly set out in the schedule—and I would expect, and obviously the Opposition would expect, that it will do so. On that basis, I will gently resist amendments 54 and 55.
Barbara Keeley
On amendment 55, I want to come back to the Minister on two points about languages that were made by the hon. Member for Aberdeen North. I think most people would be shocked to discover that safety systems and the languages in which they operate are not protected, so if people are speaking a language other than English, they will not be protected. I also think that people will be shocked about, as I outlined, the employment of moderators and how badly they are paid and trained. There are factories full of people doing that important task.
I recommend that the Minister thinks again about requiring Ofcom to provide details on human moderators who are employed or engaged and how they are trained and supported. It is a bit like when we find out about factories producing various items under appalling conditions in other parts of the world—we need transparency on these issues to make people do something about it. These platforms will not do anything about it. Under questioning from my hon. Friend the Member for Pontypridd, Richard Earley admitted that he had no idea how many human moderators were working for Facebook. That is appalling and we must do something about it.
Chris Philp
I obviously have sympathy with the objectives, but the topics covered in schedule 8, which include the systems and processes for responding to illegal and harmful content and so on, give Ofcom the power to do what the hon. Member requires. On the language point, the risk assessments that companies are required to do are hard-edged duties in the Bill, and they will have to include an assessment of languages used in the UK, which is a large number of languages—obviously, it does not include languages spoken outside the UK. So the duty to risk-assess languages already exists. I hope that gives the hon. Member reassurance. She is making a reasonable point, and I would expect that, in setting out transparency requirements, Ofcom will address it. I am sure that it will look at our proceedings to hear Parliament’s expectations, and we are giving it those powers, which are clearly set out in schedule 8.
Barbara Keeley
I will just make a final point. The Bill gives Ofcom powers when it already has so much to do. We keep returning to the point of how much will ride on Ofcom’s decisions. Our amendments would make clear the requirement for transparency reporting relating to the language issue, as well as the employment of human moderators and how they are trained and supported. If we do not point that out to Ofcom, it really has enough other things to be doing, so we are asking for these points to be drawn out specifically. As in so many of our amendments, we are just asking for things to be drawn out so that they happen.
Question put, That the amendment be made.
The Chair
With this it will be convenient to consider the following:
Clause 67 stand part.
That schedule 9 be the Ninth schedule to the Bill.
Alex Davies-Jones
Labour welcomes the important changes that have been made to the Bill since its original draft, which applied only to user-generated pornographic content. The Bill now includes all pornography, and that is a positive step forward. It is also welcome that the provisions do not apply only to commercial pornography. We all know that some of the biggest commercial pornography sites could have switched their business models had these important changes not been made. As we have reiterated, our priority in regulating pornographic content is to keep children safe. The question that we should continue to ask each other is simple: “Is this content likely to harm children?”
We have a few concerns—which were also outlined in evidence by Professor Clare McGlynn—about the definition of “provider pornographic content” in clause 66(3). It is defined as
“pornographic content that is published or displayed on the service by the provider of the service or by a person acting on behalf of the provider (including pornographic content published or displayed…by means of software or an automated tool or algorithm”.
That definition separates provider porn from content that is uploaded or shared by users, which is outlined in clause 49(2). That separation is emphasised in clause 66(6), which states:
“Pornographic content that is user-generated content in relation to an internet service is not to be regarded as provider pornographic content in relation to that service.”
However, as Professor McGlynn emphasised, it is unclear is exactly what will be covered by the words
“acting on behalf of the provider”.
I would appreciate some clarity from the Minister on that point. Could he give some clear examples?
Kirsty Blackman
I associate myself with the comments made by the hon. Member for Pontypridd and apologise on behalf of my hon. Friend the Member for Ochil and South Perthshire, who is currently in the Chamber dealing with the Channel 4 privatisation. I am sure that, given his position on the Joint Committee, he would have liked to comment on the clause and would have welcomed its inclusion in the Bill, but, unfortunately, he cannot currently do so.
Chris Philp
It is a great shame that the hon. Member for Ochil and South Perthshire is occupied in the main Chamber, because I could have pointed to this change as one of the examples of the Government listening to the Joint Committee, on which he and many others served. However, I hope that the hon. Member for Aberdeen North will communicate my observation to him, which I am sure he will appreciate.
In seriousness, this is an example of the Government moving the Bill on in response to widespread parliamentary and public commentary. It is right that we extend the duties to cover commercial pornographic content as well as the user-to-user pornography covered previously. I thank the Opposition parties for their support for the inclusion of those measures.
Dean Russell
As a member of the Joint Committee, on which I worked with the hon. Member for Ochil and South Perthshire, I thank the Minister for including this clause on a point that was debated at length by the Joint Committee. Its inclusion is crucial to organisations in my constituency such as Dignify—a charity that works to raise awareness and campaign on this important point, to protect children but also wider society. As this is one of the 66 recommendations that the Minister took forward in the Bill, I would like to thank him; it is very welcome, and I think that it will make a huge difference to children and to society.
Chris Philp
I thank my hon. Friend for his intervention and for his work on the Joint Committee, which has had a huge impact, as we have seen. I hope that colleagues will join me in thanking the members of the Joint Committee for their work.
My final point on this important clause is in response to a question that the shadow Minister raised about clause 66(3), which makes reference to
“a person acting on behalf of the provider”.
That is just to ensure that the clause is comprehensively drafted without any loopholes. If the provider used an agent or engaged some third party to disseminate content on their behalf, rather than doing so directly, that would be covered too. We just wanted to ensure that there was absolutely no loophole—no chink of light—in the way that the clause was drafted. That is why that reference is there.
I am delighted that these clauses seem to command such widespread support. It therefore gives me great pleasure to commend them to the Committee.
Question put and agreed to.
Clause 66 accordingly ordered to stand part of the Bill.
Clause 67 ordered to stand part of the Bill.
Schedule 9 agreed to.
Clause 68
Duties about regulated provider pornographic content
Alex Davies-Jones
I beg to move amendment 114, in clause 68, page 60, line 13, at end insert—
“(2A) A duty to verify that every individual featured in regulated provider pornographic content is an adult before the content is published on the service.
(2B) A duty to verify that every individual featured in regulated provider pornographic content that is already published on the service when this Act is passed is an adult and, where that is not the case, remove such content from the service.
(2C) A duty to verify that each individual appearing in regulated provider pornographic content has given their permission for the content in which they appear to be published or made available by the internet service.
(2D) A duty to remove regulated provider pornographic content featuring an individual if that individual withdraws their consent, at any time, to the pornographic content in which they feature remaining on the service.”
This amendment creates a duty to verify that each individual featured in pornographic content is an adult and has agreed to the content being uploaded before it is published. It would also impose a duty to remove content if the individual withdraws consent at any time.
The Chair
With this it will be convenient to discuss the following:
Amendment 115, in clause 68, page 60, line 17, after “(2)” insert “to (2D)”.
Clause stand part.
New clause 2—Duties regarding user-generated pornographic content: regulated services—
“(1) This section sets out the duties which apply to regulated services in relation to user-generated pornographic content.
(2) A duty to verify that each individual featuring in the pornographic content has given their permission for the content in which they feature to be published or made available by the service.
(3) A duty to remove pornographic content featuring a particular individual if that individual withdraws their consent, at any time, to the pornographic content in which they feature remaining on the service.
(4) For the meaning of ‘pornographic content’, see section 66(2).
(5) In this section, ‘user-generated pornographic content’ means any content falling within the meaning given by subsection (4) and which is also generated directly on the service by a user of the service, or uploaded to or shared on the service by a user of the service, may be encountered by another user, or other users, of the service.
(6) For the meaning of ‘regulated service’, see section 2(4).”
Alex Davies-Jones
Clause 68 outlines the duties covering regulated provider pornographic content, and Ofcom’s guidance on those duties. Put simply, the amendments are about age verification and consent, to protect women and children who are victims of commercial sexual exploitation.
I am moving a series of targeted amendments, tabled by my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson), which I hope that all hon. Members will be able to support because this is an issue that goes beyond party lines. This is about children who have been sexually abused, women who have been raped, and trafficking victims who have been exploited, who have all suffered the horror of filmed footage of their abuse being published on some of the world’s biggest pornography websites. This is about basic humanity.
Currently, leading pornography websites allow members of the public to upload pornographic videos without verifying that everyone in the film is an adult, that they gave their permission for it to be uploaded to a pornography website, or even that they know the film exists. It is sadly not surprising that because of the absence of even the most basic safety measures, hugely popular and profitable pornography websites have been found hosting and profiting from filmed footage of rape, sex trafficking, image-based sexual abuse and child sexual abuse. This atrocious practice is ongoing and well documented.
In 2019, PayPal stopped processing payments for Pornhub—one of the most popular pornography websites in the world—after an investigation by The Sunday Times revealed that the site contained child abuse videos and other illegal content. That included an account on the site dedicated to posting so-called creepshots of UK schoolgirls. In 2020, The New York Times documented the presence of child abuse videos on Pornhub, prompting Mastercard, Visa and Discover to block the use of their cards for purchases on the site.
New York Times reporter Nicholas Kristof wrote of Pornhub:
“Its site is infested with rape videos. It monetizes child rapes, revenge pornography, spy cam videos of women showering, racist and misogynist content, and footage of women being asphyxiated in plastic bags.”
That particular pornography website is now subject to multiple lawsuits launched against its parent company, MindGeek, by victims whose abuse was published on the site. Plaintiffs include victims of image-based sexual abuse in the UK, such as Crystal Palace footballer Leigh Nicol. Her phone was hacked, and private content was uploaded to Pornhub without her knowledge. She bravely and generously shared her experience in an interview for Sky Sports News, saying:
“The damage is done for me so this is about the next generation. I feel like prevention is better than someone having to react to this. I cannot change it alone but if I can raise awareness to stop it happening to others then that is what I want to do… The more that you dig into this, the more traumatising it is because there are 14-year-old kids on these websites and they don’t even know about it. The fact that you can publish videos that have neither party’s consent is something that has to be changed by law, for sure.”
I agree. It is grotesque that pornography website operators do not even bother to verify that everyone featured in films on their sites is an adult or even gave permission for the film to be uploaded. That cannot be allowed to continue.
These amendments, which I hope will receive the cross-party backing that they strongly deserve, would stop pornography websites publishing and profiting from videos of rape and child sexual abuse by requiring them to implement the most basic of prevention measures.
Kirsty Blackman
I support the hon. Member’s amendments. The cases that she mentions hammer home the need for women and girls to be mentioned in the Bill. I do not understand how the Government can justify not doing so when she is absolutely laying out the case for doing so.
Alex Davies-Jones
I agree with the hon. Member and welcome her intervention. We will be discussing these issues time and again during our proceedings. What is becoming even more apparent is the need to include women and girls in the Bill, call out violence against women and girls online for what it is, and demand that the Government go further to protect women and girls. This is yet another example of where action needs to happen. I hope the Minister is hearing our pleas and that this will happen at some point as we make progress through the Bill.
More needs to be done to tackle this problem. Pornography websites need to verify that every individual in pornographic videos published on their site is an adult and gave their permission for the video to be published, and enable individuals to withdraw their consent for pornography of them to remain on the site. These are rock-bottom safety measures for preventing the most appalling abuses on pornography websites.
Kim Leadbeater
I add my voice to the arguments made by my hon. Friend and the hon. Member for Aberdeen North. Violence against women and girls is a fundamental issue that the Bill needs to address. We keep coming back to that, and I too hope that the Minister hears that point. My hon. Friend has described some of the most horrific harms. Surely, this is one area where we have to be really clear. If we are to achieve anything with the Bill, this is an area that we should be working on.
Alex Davies-Jones
I wholeheartedly agree with my hon. Friend. As I have said, the amendments would put in place rock-bottom safety measures that could prevent the most appalling abuses on pornography websites, and it is a scandal that, hitherto, they have not been implemented. We have the opportunity to change that today by voting for the amendments and ensuring that these measures are in place. I urge the Minister and Conservative Members to do the right thing.
Dame Maria Miller
I thank the hon. Lady for giving way. I can understand the intent behind what she is saying and I have a huge amount of sympathy for it, but we know as a matter of fact that many of the images that are lodged on these sorts of websites were never intended to be pornographic in the first place. They may be intimate images taken by individuals of themselves—or, indeed, of somebody else—that are then posted as pornographic images. I am slightly concerned that an image such as that may not be caught by the hon. Lady’s amendments. Would she join me in urging the Government to bring forward the Law Commission’s recommendations on the taking, making and sharing of intimate images online without consent, which are far broader? They would probably do what she wants to do but not run into the problem of whether an image was meant to be pornographic in the first place.
Alex Davies-Jones
I am grateful to the right hon. Member for her intervention. She knows that I have the utmost respect for all that she has tried to achieve in this area in the House along with my right hon. Friend the Member for Kingston upon Hull North.
We feel these amendments would encapsulate the specific issue of consent-based imagery or video content for which consent has not been obtained. Many of these people do not even know that the content has been taken in the first place, and it is then uploaded to these websites. It would be the website’s duty to verify that consent had been obtained and that the people in the video were of the age of consent. That is why we urge hon. Members to back the amendments.
Chris Philp
The shadow Minister has laid out compellingly how awful the displaying of images of children on pornography websites and the displaying of images where the consent of the person has not been obtained are. Let me take each of those in turn, because my answers will be a bit different in the two cases.
First, all material that contains the sexual abuse of children or features children at all—any pornographic content featuring children is, by definition, sexual abuse—is already criminalised through the criminal law. Measures such as the Protection of Children Act 1978, the Criminal Justice Act 1988 and the Coroners and Justice Act 2009 provide a range of criminal offences that include the taking, making, circulating, possessing with a view to distributing, or otherwise possessing indecent photos or prohibited images of children. As we would expect, everything that the hon. Lady described is already criminalised under existing law.
This part of the Bill—part 5—covers publishers and not the user-to-user stuff we talked about previously. Because they are producing and publishing the material themselves, publishers of such material are covered by the existing criminal law. What they are doing is already illegal. If they are engaged in that activity, they should—and, I hope, will—be prosecuted for doing it.
The new clause and the amendments essentially seek to duplicate what is already set out very clearly in criminal law. While their intentions are completely correct, I do not think it is helpful to have duplicative law that essentially tries to do the same thing in a different law. We have well established and effective criminal laws in these areas.
In relation to the separate question of people whose images are displayed without their consent, which is a topic that my right hon. Friend the Member for Basingstoke has raised a few times, there are existing criminal offences that are designed to tackle that, including the recent revenge pornography offences in particular, as well as the criminalisation of voyeurism, harassment, blackmail and coercive or controlling behaviour. There is then the additional question of intimate image abuse, where intimate images are produced or obtained without the consent of the subject, and are then disseminated.
Dame Maria Miller
The Minister must be careful about using the revenge pornography legislation as an example of protection. He will know well that that legislation requires relationships between the people involved. It is a very specific piece of legislation. It does not cover the sorts of examples that the shadow Minister was giving.
Chris Philp
I think it would cover some of them. If, for example, someone in a relationship had a video taken that was then made available on a commercial pornography site, that would clearly be in scope. I am not saying that the revenge pornography legislation covers all examples, but it covers some of them. We have discussed already that clause 150 will criminalise a great deal of the content referred to here if the intention of that content or the communication concerned is to cause harm—meaning
“psychological harm amounting to at least serious distress”—
to the subject. That will capture a lot of this as well.
My right hon. Friend the Member for Basingstoke has made a point about needing to remove the intent requirement. Any sharing of an intimate image without consent should be criminalised. As we have discussed previously, that is being moved forward under the auspices of the Ministry of Justice in connection with the Law Commission’s proposed offence. That work is in flight, and I would anticipate it delivering legislative results. I think that is the remaining piece of the puzzle. With the addition of that piece of legislation, I think we will cover the totality of possible harms in relation to images of people whose consent has not been given.
In relation to material featuring children, the legislative pattern is complete already; it is already criminal. We do not need to do anything further to add any criminal offences; it is already illegal, as it should be. In relation to non-consensual images, the picture is largely complete. With the addition of the intimate image abuse offence that my right hon. Friend the Member for Basingstoke has been rightly campaigning for, the picture will be complete. Given that that is already in process via the Law Commission, while I again agree with what the Opposition are trying to do here, we have a process in hand that will sort this out. I hope that that makes the Government’s position on the amendments and the new clause clear.
Clause 68 is extremely important. It imposes a legally binding duty to make sure that children are not normally able to encounter pornographic content in a commercial context, and it makes it clear that one of the ways that can be achieved is by using age verification. If Ofcom, in its codes of practice, directs companies to use age verification, or if there is no other effective means of preventing children from seeing pornographic content, the clause makes it clear that age verification is expressly authorised by Parliament in primary legislation. There will be no basis upon which a porn provider could try to legally challenge Ofcom, because it is there in black and white in the Bill. It is clearly Parliament’s intention that hard-edged age verification will be legal. By putting that measure in the Bill as an example of the way that the duty can be met, we immunise the measure from legal challenge should Ofcom decide it is the only way of delivering the duty. I make that point explicitly for the avoidance of doubt, so that if this point is ever litigated, Parliament’s intention is clear.
Alex Davies-Jones
I welcome the Minister’s comments and commitment to look at this further, and the Law Commission’s review being taken forward. With that in mind, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 68 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned—(Steve Double.)