Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
My Lords, you know the drill, but if there is a Division in the Chamber, I will let the Committee know and we will adjourn for 10 minutes to allow for voting. No votes are expected.
Economic Crime and Corporate Transparency Bill
Tuesday 25th April 2023
(1 year ago)
Grand CommitteeRead Full debate Economic Crime and Corporate Transparency Act 2023 View all Economic Crime and Corporate Transparency Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 96-V Fifth marshalled list for Grand Committee - (25 Apr 2023)
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment and the amendment in the name of Lord Sharpe of Epsom at page 207, line 11 amend inserted section 131ZB of the Proceeds of Crime Act 2002 (realisation of confiscated cryptoassets) to provide that only the sheriff may make an order under that section requiring confiscated cryptoassets to be realised.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, we now move to the Home Office clauses of the Bill and the amendments associated with them. I reiterate the thanks previously expressed by my noble friend the Minister for Investment to everyone who has participated in the scrutiny of the Bill to date, not least noble Lords who either met us to discuss the Bill or spoke during the first few days in Committee. I also reiterate my thanks to my noble friend Lord Johnson of Lainston for shepherding the first three parts of the Bill through Committee. They comprise sizeable and vital measures to make our country, businesses and citizens safer.
The amendments in this group concern the confiscation and recovery of crypto assets. Amendments 77M, 77N, 77P to 77Y, 77YA to 77YF, 78A and 78B—there are a lot of them—make a series of small and technical changes to measures in the Bill to ensure that it works as effectively as possible. They include amendments to ensure that the measures will function effectively in the context of the Scottish courts and will mirror existing asset recovery powers so that immigration officers can utilise the crypto-asset forfeiture powers. These amendments provide greater clarity to existing measures in the Bill and remain wholly in line with the original policy’s intent. I hope that noble Lords will support these amendments and I beg to move.
Lord Fox (LD)
My Lords, I will speak to Amendment 78 in my name and also more generally. I thank the team sitting behind the Minister who met me last week to try to see through this. I was somewhat reassured by what they had to say, but a couple of points hinge around the words “UK-connected” in describing crypto assets.
What we know about crypto is that it is connected nowhere. A number of crypto concerns are now administered under UK financial administration, but a whole lot more are not. Clearly, if the authorities were able to seize a crypto wallet, that would perhaps offer a greater opportunity for confiscating assets than having to go through the courts with these crypto-asset services. This may have limited application in the real world, when we get there. I do not think it is a bad thing and it is not a problem, but I do not think we should raise our expectations particularly high when it comes to being able to confiscate these sorts of assets.
To some extent, that is what sits behind my modest amendment, which seeks to require the Secretary of State to review the adequacy of the definitions of crypto assets and, by definition, how they can be confiscated under the Bill. The Secretary of State would have to lay a report before Parliament within 18 months. Because everything is changing so quickly in this sphere, it does not seem unreasonable to ask the Government to come back to Parliament and tell us how it is going. It is quite clear that new crypto assets are popping up every day. Who would have thought of NFTs as being crypto assets at all even a couple of years ago? Are they included in this? I assume that they are.
New digital assets will emerge over the next 18 months and beyond and it is sensible for the Government to keep Parliament in touch with what they are trying to do to bring these assets to book when appropriate. We welcome the changes in so far as they go. I do not think we should get too excited about them, but we should ask that the Government and the Secretary of State keep Parliament in touch with the changes that are going on all the time.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this is a slightly unusual debate, in that we have a lot of very specific amendments tabled by the Government. The noble Lord, Lord Fox, has opened the debate by talking about how fluid the situation is when dealing with cryptocurrency and crypto assets as a whole, and other amendments in subsequent groups will deal with particular aspects.
Just by chance, yesterday evening I bumped into a former magistrate colleague of mine, John Glen, previously the Economic Secretary to the Treasury, who told me about a speech that he gave on 4 April last year in which he set out the Government’s approach to crypto assets and the whole issue of trying to manage that approach in this fast-evolving world. I agree with the first point made by the noble Lord, Lord Fox. We all acknowledge that this is fast-moving and the Government are doing their best to position themselves to be at the centre of developments and well-connected worldwide, as the understanding of the practical input and use of crypto assets is properly assessed, while also trying to bear down on the criminal activity that is undoubtedly prevalent within these assets.
Having read John Glen’s speech, in which he outlined the Government’s detailed plan, I will just mention some of the key points that he made, and perhaps the Minister can then say something about the Government’s approach to dealing with this fluid situation. John Glen’s first point was about stablecoins, which are a way of trying to harness technologies such as blockchain for the benefit of government by, for example, tying the pound to some form of cryptocurrency. That was being looked into and it would be interesting to know how that is going.
Another element of the plan outlined in John Glen’s speech was to ask the Law Commission to look at decentralised autonomous organisations, which are basically the groups that will run these crypto assets and the like. If there is any progress report on the work of that task force, that would be very interesting.
John Glen also talked about a sandbox, to be run by the Bank of England and the FCA, which will look at ways to manage the evolutionary process of regulation. I absolutely understand that is a difficult thing to do. Finally, he announced with some fanfare that the Royal Mint will create its own non-fungible token, or NFT. I do not know how that is going, but I would be interested to hear what the Minister has to say about that—
Lord Ponsonby of Shulbrede (Lab)
Well, it is indeed a fast-moving world.
We support the amendments in this group, but I would be interested to hear if the Minister could say something about the wider strategy in trying to make sure that the British Government are part of the development of these technologies, while bearing down on sources of fraud and money laundering.
Baroness Altmann (Con)
My Lords, I rise to express my concerns. It is not that I do not support the amendments or the comments made by other noble Lords, but calling these things crypto assets in an economic crime Bill, when we know that their origin seems to have been organised crime finding a way to money launder its ill-gotten rewards I find deeply troubling. A number of leading bankers, with whom I agree, have suggested that these things have no value. I urge the Government to be very alert to the potential risk of trying to make cryptocurrency—I am not talking about blockchain technology—and these so-called assets, which actually do not exist, appear to be reasonable things for British citizens to put their money into.
Lord Agnew of Oulton (Con)
My Lords, I support the noble Lord, Lord Fox, in his amendment to make sure we have a review point quite soon after this Bill. I acknowledge my noble friend Lady Altmann’s point about the strange context to put this in, but given that we have this Bill on the table, it would be very easy to put in a reference point because the climate for this asset is moving enormously fast. Between November 2021 and November 2022, the value of bitcoin fell by $2 trillion, which is not far short of the UK’s total annual GDP, although it has recovered a little since then. This is a vast sum of theoretical money that is swilling around, and we do not yet really understand how to manage it, so I strongly support the noble Lord, Lord Fox.
Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords for the points that have been raised in this debate so far, and I specifically thank the noble Lord, Lord Fox, for tabling Amendment 78. I also thank him for his kind words about the detailed technical briefing that he received from officials on these provisions, and I am glad it proved valuable.
The proposed clause seeks to impose a duty on the Secretary of State to lay before Parliament a report reviewing the definitions of crypto assets contained in the Bill within 18 months of its passage. We believe this is unnecessary. The definitions in the Bill are in line with existing definitions in the Proceeds of Crime Act 2002 and the Terrorism Act 2000 and follow the approach recommended by the joint Treasury, Financial Conduct Authority and Bank of England Cryptoassets Taskforce: Final Report in 2018—I imagine that goes some way towards answering the questions asked by the noble Lord, Lord Ponsonby.
As to the issue of UK-connected firms raised by the noble Lord, Lord Fox, the provisions enable the seizure of crypto assets from wallets and firms. They were developed with partners and were based on operational insights and are valuable and necessary. These definitions will be reviewed whenever and as often as needed. There is general agreement that the world is moving at an incredibly fast pace, and therefore there is a provision in the Bill for the Secretary of State to amend the definitions of crypto assets in future through regulations which will be subject to debate in Parliament.
To go into a little more detail on future-proofing, the specific delegated powers allow the Secretary of State to amend definitions associated with crypto assets as part of these new crypto-asset confiscation and civil recovery regimes. The definitions in the confiscation and civil recovery provisions reflect those already in POCA, TACT and other linked legislation. Home Office officials will be working closely with law enforcement agencies to monitor the effectiveness of the crypto-asset powers post-implementation and, if necessary, the Government would look to update crypto-asset definitions. Noble Lords made very good points about the pace of change, and this legislation recognises that. The regulation- making power is intended for the express purpose of being able to respond dynamically to changes in technology or criminal behaviour rather than at arbitrary points in time.
The noble Lord, Lord Ponsonby, asked about stable- coins and decentralised finance. He mentioned emerging technologies in the crypto-asset ecosystem. This Bill caters for criminal abuse of these as far as is practically possible. For example, stablecoins are captured by our definition of crypto assets. However, the definitions have been developed in consultation with industry so as not to stifle legitimate innovation.
Having mentioned “legitimate innovation”, I heard what my noble friend Lady Altmann had to say on the subject and she made some very good points.
I hope this provides reassurance that the definitions of crypto assets will remain subject to review with the ability to be updated in a responsive way. The provision to amend the definitions of crypto assets would be used appropriately and afford Parliament the opportunity for scrutiny, so I ask the noble Lord not to move his amendment.
Lord Sharpe of Epsom
Member’s explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 206, line 39.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 206, line 39.
Member’s explanatory statement
This amendment and the amendments in the name of Lord Sharpe of Epsom at page 208, line 47, page 209, line 2 and page 209, line 8 amend inserted section 131AA of the Proceeds of Crime Act 2002 (destruction of seized cryptoassets) to provide that only the sheriff may make an order under that section.
Member’s explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 208, line 30.
Member’s explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 208, line 30.
Member’s explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 208, line 30.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 208, line 30.
Member’s explanatory statement
This amendment and the amendments in the name of Lord Sharpe of Epsom at page 209, line 30, page 209, line 38 and page 210, line 14 are consequential on the amendments in the name of Lord Sharpe of Epsom at page 206, line 39 and page 208, line 30.
“(4) In subsection (2), for “131A” substitute “131ZB(3), 131A(3) or 131AA(2)”Member’s explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 209, line 27.
Member’s explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 209, line 27.
Member’s explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 209, line 27.
Lord Sharpe of Epsom
“RECOVERY OF CRYPTOASSETS: SEARCHES, SEIZURE AND DETENTION”Member’s explanatory statement
This amendment replaces the title of inserted Chapter 3C of Part 5 of the Proceeds of Crime Act 2002.
“RECOVERY OF CRYPTOASSETS: FREEZING ORDERS”Member’s explanatory statement
This amendment replaces the title of inserted Chapter 3D of Part 5 of the Proceeds of Crime Act 2002.
Member’s explanatory statement
This amendment and the amendment in the name of Lord Sharpe of Epsom at page 263, line 36 clarify that references in sections 303Z51 and 303Z17A of the Proceeds of Crime Act 2002 (freezing orders) to a freezing order are to a current freezing order.
Member’s explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 245, line 3.
“13A_ In section 453C of the Proceeds of Crime Act 2002 (obstruction offence in relation to immigration officers), in subsection (3), after paragraph (g) insert—“(ga) section 303Z21 (powers to search for cryptoasset-related items) as applied by section 24 of the UK Borders Act 2007 (exercise of civil recovery powers by immigration officers);(gb) section 303Z26 as so applied (powers to seize cryptoasset-related items);(gc) section 303Z27 as so applied (powers to detain cryptoasset-related items);”.”Member’s explanatory statement
This amendment consequentially amends section 453C of the Proceeds of Crime Act 2002 (obstruction offence in relation to immigration officers) to provide that the offence in that section applies in relation to an immigration officer who is acting in exercise of certain cryptoasset-related powers in inserted Chapter 3C of Part 5 of that Act.
“Amendments to the UK Borders Act 2007
16_(1) Section 24 of the UK Borders Act 2007 (exercise of civil recovery powers by immigration officers) is amended as follows.(2) In subsection (1), for “3B” substitute “3F”. (3) In subsection (2)(a), for “Chapter 3B” substitute “Chapters 3B to 3F”. (4) In subsection (2)(c), after “303Z2(4))” insert “, Chapter 3C (see section 303Z20(4)), Chapter 3D (see section 303Z36(8)) and Chapter 3E (see section 303Z41(9))”.(5) In subsection (2)(d), after “303G” insert “(including as section 303G is applied by section 303Z25)”.(6) In subsection (2)(e), after “303I” insert “(including as sections 303H and 303I are applied by section 303Z25)”.(7) In subsection (2)(f)—(a) in the opening words, for “or 303L(1)” substitute “, 303L(1), 303Z28(1) or (4), 303Z32(1) or (4) or 303Z57(3) or (5)”;(b) in sub-paragraph (ii), for “or (as the case may be) 303O” substitute “, 303O, 303Z41 or (as the case may be) 303Z60”.(8) In subsection (2)(g), for “or 303Z14” substitute “, 303Z14, 303Z41 or 303Z60”.(9) In subsection (2)(h), for “or 303Z18” substitute “, 303Z18, 303Z52 or 303Z64”.”Member’s explanatory statement
This amendment amends section 24 of the UK Borders Act 2007 (exercise of civil recovery powers by immigration officers) to provide that immigration officers may exercise certain cryptoasset-related powers in inserted Chapters 3C to 3F of Part 5 of the Proceeds of Crime Act 2002.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment and the amendment in the name of Lord Sharpe of Epsom at page 310, line 41 clarify that references in paragraphs 10Z7CL and 10Z6A of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001 (forfeiture of terrorist property) to a freezing order are to a current freezing order.
Member’s explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 295, line 27.
Lord Sharpe of Epsom
“Money laundering: offences of failing to disclose
(1) The Proceeds of Crime Act 2002 is amended as follows.(2) In section 330 (failure to disclose: regulated sector)— (a) subsection (7A) is moved to after subsection (7B) and is renumbered subsection (7C);(b) after that subsection as moved and renumbered, insert— “(7D) Nor does a person commit an offence under this section if—(a) the information or other matter mentioned in subsection (3) consists of or includes information that was obtained only in consequence of the carrying out of a status check under section 40 of the Immigration Act 2014 or an immigration check under section 40A of that Act or both, and(b) but for the information so obtained the person would not have reasonable grounds for knowing or suspecting that another person is engaged in money laundering.”(3) In section 331 (failure to disclose: nominated officers in the regulated sector), after subsection (6A) insert—“(6B) Nor does a person commit an offence under this section if—(a) the information or other matter disclosed to the person under section 330 consists of or includes information that was obtained only in consequence of the carrying out of a status check under section 40 of the Immigration Act 2014 or an immigration check under section 40A of that Act or both, and(b) but for the information so obtained the person would not have reasonable grounds for knowing or suspecting that another person is engaged in money laundering.””Member’s explanatory statement
This creates a defence for people who fail to report money laundering if their knowledge or suspicion is based on information supplied under a status or immigration check. The defence applies where, but for that information, the person would not have reasonable grounds to know or suspect money laundering.
Lord Sharpe of Epsom (Con)
My Lords, I will speak first to the government amendments in this group. The first of these is Amendment 78C. This is intended to avoid unnecessary burdens on business from having to submit the same information for immigration purposes and under the SARs regime. The new clause creates a defence for people who fail to report money laundering if their knowledge or suspicion of money laundering arises solely as a result of an immigration check carried out using data supplied by the Home Office.
Under the Immigration Act 2014, banks and building societies are required to check whether their existing account holders or applicants for a current account are disqualified persons. Should banks match any of their existing customers against the disqualified persons list—the DPL—they will be required to notify the Home Office. At the same time, a match against the DPL could also trigger a requirement under the Proceeds of Crime Act 2002 to submit a suspicious activity report, known as a SAR, to the NCA. This would require banks and building societies to report the same information twice, placing a financial and administrative burden on both them and the NCA.
By creating a defence against the offence of failing to report in Section 330 or Section 331 of POCA when the suspicion is solely the result of an immigration check using information provided by the Home Office, we will essentially remove the requirement for banks and building societies to submit a SAR under those circumstances. This will help mitigate the burden of such reports and the potential for dual reporting in the case of existing accounts. This amendment modifies existing POCA obligations and provides certainty on reporting requirements; failure to provide this certainty risks reporters taking a risk-averse approach to reporting and continuing to overreport.
I turn to Amendments 78D and 78G, tabled by the Government. These amendments ensure that applications for information orders can be made only where an authorised NCA officer reasonably believes that the foreign Financial Intelligence Unit—FIU—is requesting the information for strategic or operational intelligence analysis.
These amendments seek to address concerns from stakeholders that information orders could be used for purposes beyond those for which they are intended—specifically, that they may otherwise be used by foreign FIUs to circumvent existing intelligence and information-sharing procedures, under mutual legal assistance processes, by using the information shared through the information order as evidence in legal proceedings. Although information-sharing between international FIUs is crucial to combating economic crime and terrorist financing at an international level, a foreign partner should use existing mutual legal assistance processes if they wish to request evidentiary material from the UK. This is because the mutual legal assistance process is tightly regulated and has appropriate procedures and safeguards in place for sharing information of this kind. This amendment is essential to ensure that the information order measures in the Bill work as intended and that applications made for the orders are proportionate and justified.
Amendment 78E amends Section 339ZH of the Proceeds of Crime Act to remove the extension of the definition of money laundering to include predicate offences. The inclusion of these offences in the definition of money laundering would have broadened the scope of the clause beyond its intended purposes. We will rely on the existing definition of money laundering in Section 340 of the Proceeds of Crime Act 2002; this will ensure there is a consistent definition of money laundering across the Act. The exclusion of predicate offences from the definition does not affect law enforcement’s ability to investigate or pursue cases of money laundering. It is for these reasons that I ask the Committee to support this government amendment.
Amendments 78F and 78H are small amendments to Section 339ZL of the Proceeds of Crime Act 2002 and Section 22F of the Terrorism Act 2000, allowing certain preliminary steps in relation to making a code of practice under these provisions, such as consultation on the draft code of practice, to be carried out prior to Royal Assent. This amendment will also bring the duty to issue a code into force on Royal Assent, ensuring that we avoid any unnecessary delays in laying a code of practice and operationalising the powers.
I hope that those explanations have provided further clarity on why these government amendments are needed, and I ask the Committee to support them. I beg to move.
Lord Agnew of Oulton (Con)
My Lords, I speak in favour of my own amendment, which is part of this group—Amendment 86, which is about asking for prioritisation of SARs reporting. Just to set the scene for noble Lords, according to the UK Financial Intelligence Unit, the praetorian guard of the NCA in this respect, there were 901,000 SAR reports in 2021-22, 70% of which related to banks. That is a number far in excess of what institutions can meaningfully deal with, so huge opportunities are being missed.
The Home Office itself has just produced its own report, called Transparency Data: Accounting Officer Memorandum: Suspicious Activity Reports (SARs) Reform Programme, published on 24 February, just a few weeks ago. It accepts that there are at least four problems in our management of the SAR regime:
“Inconsistent levels of compliance reporting in some parts of the regulated sector … Insufficient human resource capacity within the UKFIU which limits their ability to analyse financial intelligence or engage with partners to improve the quality of SARs … Under-utilisation of SARs by law enforcement … Legacy IT systems which cause inefficiency and ineffectiveness throughout the regime”.
That is in the words of the Home Office, from literally only a few weeks ago. What is so frustrating is that the Government have been talking about this for at least four years. In April 2019, a strategic outline business case for the programme was reviewed by the Home Office. An economic crime plan was produced in July 2019 and then the full business case was subsequently reviewed and approved by the Home Office in April 2021. Yet we still do not seem to have a lot of action.
All my amendment is trying to do is to push the machine to get on with this. Of course, the Minister will ask me not to press the amendment, but I would ask him whether, in so doing, he can give us a date—maybe not today but in writing to the Committee—by when all this stuff will start to happen, because we are missing huge opportunities to identify economic crime. My simple proposal is to triage the SARs, so that the shortage of resource, which no doubt will remain for a while, can at least be concentrated on areas of greatest risk to our system.
Lord Vaux of Harrowden (CB)
First, the noble Lord, Lord Agnew, makes a very interesting point and I should like to hear the Minister’s views on it. I should also be interested to hear how many of the 900,000-odd SARs are acted on and followed up each year. That would be an interesting statistic to understand.
I wish to ask about Amendment 78E, which I do not fully understand. It would remove the reference being inserted into the Proceeds of Crime Act to predicate offences. I am not sure why we should take it out. It would be interesting to understand from the Minister why it was in the Bill in the first place and why the Government have now changed their mind and are taking it out. As I understand it, a predicate offence is the offence that creates the finances that are then laundered. It must in many cases be quite hard to untie those two things. I should have thought that it must be useful to any crime agency looking into these things to understand the full chain, from the original offence to the laundering of the funds. Clause 172 is talking only about information orders, not about creating new offences or anything else, so I am unclear why we would want to remove the predicate offence from the information order and would like to understand it a little more.
Baroness Altmann (Con)
My Lords, I support my noble friend’s amendment. I understand that the Government may have concerns about accepting it, but he made a very powerful case for trying to find a way to deal with an underresourced investigation procedure, perhaps by prioritising by frequency of the same company or individual under suspicion for their activity, the amounts of money available or certain countries that may be involved. There must be a way of prioritising the investigation of suspicious activity reporting, because I am certainly aware that some such activity is raised in what most people might consider relatively minor cases—but, of course, the banks need to take the issue seriously and report if they have suspicions. I would welcome the Minister’s comments and thoughts on the proposals of my noble friend Lord Agnew, but I also thank the Government for their amendments.
Lord Fox (LD)
My Lords, I thank the Minister for a clear exposition of the government amendments. I do not think I can find anything to get upset about over them—disappointingly, as I always like to get upset about the Government.
I should like to add a little, perhaps over-philosophically, on the amendment of the noble Lord, Lord Agnew. There is actionable information and there is noise, and 900,000 submissions sounds like noise, not actionable information. The noble Lord set out manfully how to try to make that noise actionable, but my sense is that you have to go back to what a SAR is. My understanding —I am looking at the noble Lord, Lord Leigh, as I consider him the expert on these things—is that they are a self-reported classification. I wonder how this would help because, clearly, the risk register would drive behaviour and people would self-report under a different classification. I wonder whether, overall—perhaps the Minister can help here—how much SARs ever help in dealing with the proceeds of crime. In other words, when is this information useful, how is it useful and in what circumstances do the Government feel it is essential to know it? Starting from that position, we might have a better idea of how we sift the noise to make it more valuable, because it strikes me that the noble Lord, Lord Agnew, absolutely hits on the problem. I am not 100% convinced he hits on the solution, but we need a solution, so some dialogue between the noble Lord, the Government and others to come up with a plan would be very helpful.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I support the comments that have already been made. As the noble Lord, Lord Agnew, has said, he is really asking the Government to triage the SARs, for some way of managing the overwhelming amount of data which is reported. The only little glimpse of this I have in my other role as a magistrate is that we deal with proceeds of crime applications at magistrates’ court level, and it is not that unusual—I have dealt with it myself—where you are talking about potentially billions of pounds. But we are just seeing one very small snapshot of that in the particular application that we see in the magistrates’ courts. I am very well aware that these are immensely complicated situations to deal with, but just from listening to the speech of the noble Lord, Lord Agnew, I think he is, as he said, really just pushing the Government to try and get on with their own plan. It would be very useful for this Committee to hear what the Government are planning to do and to come up with a timetable to try and impact on this problem. Other than that, I support the amendments.
Lord Sharpe of Epsom (Con)
My Lords, I once again thank noble Lords who have spoken in this debate. I have listened with considerable interest to the points that have been raised. I am particularly grateful to the noble Lord, Lord Fox, for going against his natural instinct and supporting the Government.
I thank my noble friend Lord Agnew of Oulton for his Amendment 86, which would create a requirement for risk rating for submissions of suspicious activity reports, known as SARs. As my noble friend acknowledges, SARs intelligence is a critical tool in our ability to identify, disrupt and recover the hundreds of millions of pounds which underpin the most serious and organised crime in the UK. However, it is often not possible for reporters of SARs to assess the level of risk related to a SAR, or the underlying offence associated with the report, when it is submitted to the National Crime Agency. That is because the reporter may not have a complete picture of information on which to make such a rating. This could lead to potentially inaccurate information being submitted to the NCA if this were a requirement, as well as additional burdens on reporters that would distract resources from tackling economic crime.
Furthermore, the NCA already has procedures in place to enable reporters to alert specific concerns. It has issued an online guidance of glossary codes to reporters, which can be included in their reports and which allow them to label a SAR with a specific concern. These glossary codes can, for example, relate to suspicions of vulnerable children, human trafficking, or firearms offences, and enable the National Crime Agency to triage the reports so they can be allocated appropriately.
In addition, the SARs reform programme is delivering major reforms to the legacy SARs IT, to enable better analysis and exploitation of SARs intelligence to deliver law enforcement outcomes to disrupt criminals. As my noble friend has gone into more detail on this subject, I will answer in more detail generally about resource allocation and what have you.
We are increasing capacity within law enforcement to analyse and act on SARs intelligence. This will include 75 additional officers in the NCA, which will almost double capacity. Some 45 of these officers are already in post, and the milestone for recruiting the remaining 30 is the end of this financial year 2022-23. The programme has also provided more than 20 new financial investigators in the regional organised crime units dedicated to SARs analysis. These new staff are already delivering operational results from SARs intelligence, including the recovery of criminal assets—£380,000 to date this year, with approximately another £1 million frozen; I will come back on to some numbers in a second—and also identification and arrest of previously unknown organised crime group members.
In terms of the IT systems, a new SARs digital service, including data analytics, which will replace legacy IT implemented more than 20 years ago, is on its way. The first elements of the new SARs IT systems, which are for bulk reporter submission, were delivered in early 2021, to enable organisations to submit large volumes of SARs—bulk reporters—to begin testing the new systems. To ensure consistency of service, de-risk delivery and ensure the protection of the public, the end-to-end SARs digital service will be delivered in stages. The new SARs online portal and bulk submission system is shortly due to go live. This will be followed by further releases, which will replace the current SARs IT used by the UK Financial Intelligence Unit, law enforcement agencies and other government departments. My noble friend was quite right to bring up the subject, and I hope that provides some clarity as to what is being planned.
The noble Lord, Lord Vaux, asked about the additional number of SARs. The NCA received and processed 573,085 SARs in 2019-20. The number of SARs submitted increases significantly every year. Action taken as a result of these SARs saw £191,637,824 denied to criminals in 2019-20, which is an increase of about 46% on the previous year’s figure. SARs are analysed by the NCA for priority risks and then actioned accordingly. The majority of the reports are also made available to more than 75 law enforcement agencies and used in a variety of ways. This was recognised in the Financial Action Task Force’s mutual evaluation of the UK in 2018. We recognise that we could do more and are committed to the SARs reform programme, which aims to improve our ability to analyse SARs and for law enforcement to take action on them when appropriate.
The noble Lord, Lord Vaux, also asked why Amendment 78E is being tabled now. The original draft used a definition of money laundering based on a global standard from FATF—the Financial Action Task Force. The new definition ensures that the definition of money laundering is consistent with the rest of POCA. A predicate offence in the context of money laundering is an offence that leads to proceeds of crime being generated which then become the subject of a money laundering offence. The inclusion of these offences in the definition of money laundering in this clause would effectively include any criminal activity, thereby broadening the scope of the clause beyond its intended purpose. The exclusion of predicate offences from the definition does not affect law enforcement’s ability to investigate or pursue cases of money laundering.
I believe that I have answered all the specific questions. Once again, I thank all noble Lords who participated in this short debate. I ask my noble friend Lord Agnew not to press his amendment.
Lord Sharpe of Epsom
“(b) an authorised NCA officer has reasonable grounds to believe that the request was made only for the purpose of assisting the foreign FIU to conduct one or both of the following—” Member’s explanatory statement
This amendment amends inserted section 339ZH(6B)(b) of the Proceeds of Crime Act 2002 (information orders: foreign FIUs and money laundering) to ensure that information orders can only be granted where an authorised NCA officer reasonably believes that the foreign FIU is requesting the information for the purpose of conducting operational or strategic analysis.
Member’s explanatory statement
This amendment removes inserted subsection (6C) of section 339ZH of the Proceeds of Crime Act 2002. That subsection would have extended the definition of “money laundering”, for the purposes of subsections (6A) and (6B) of that section, to include predicate offences in respect of money laundering.
“(2A) A requirement in paragraph (a), (b) or (c) of subsection (2) may be satisfied by the carrying out of the action required by the paragraph in question before this section comes into force.”Member’s explanatory statement
This amendment amends inserted section 339ZL of the Proceeds of Crime Act 2002 (code of practice about certain information orders) to provide that certain preliminary steps in relation to the making of a code of practice under that section (for example, publishing a draft) may be carried out before that section comes into force.
Lord Sharpe of Epsom
“(b) an authorised NCA officer has reasonable grounds to believe that the request was made only for the purpose of assisting the foreign FIU to conduct one or both of the following—”Member’s explanatory statement
This amendment amends inserted section 22B(6B) of the Terrorism Act 2000 (information orders: foreign FIUs and terrorist financing) to ensure that information orders can only be granted where an authorised NCA officer reasonably believes that the foreign FIU is requesting the information for the purpose of conducting operational or strategic analysis.
“(2A) A requirement in paragraph (a), (b) or (c) of subsection (2) may be satisfied by the carrying out of the action required by the paragraph in question before this section comes into force.”Member’s explanatory statement
This amendment amends inserted section 22F of the Terrorism Act 2000 (code of practice about certain information orders) to provide that certain preliminary steps in relation to the making of a code of practice under that section (for example, publishing a draft) may be carried out before that section comes into force.
Lord Agnew of Oulton
“HMRC anti-money laundering function
After section 5 of the Commissioners for Revenue and Customs Act 2005 (Commissioners’ initial functions), insert—“5A Commissioners’ anti-money laundering functions (1) The Commissioners are responsible for anti-money laundering supervision.(2) The Commissioners must treat the function in subsection (1) as a priority equal to the functions in section 5.””Member’s explanatory statement
This amendment introduces a priority for HMRC to exercise its AML supervisory role. Having such a duty would ensure that HMRC fills an enforcement gap by generating more action against the promoters of aggressive tax avoidance schemes and the enablers of economic crimes in order to deter wrongdoing.
Lord Agnew of Oulton (Con)
My Lords, my Amendment 79 asks that HMRC be given a specific requirement to prioritise the exercise of its AML supervisory role. The reason I ask is the criticism that the Government have raised against HMRC. The Financial Action Task Force observed that tax issues
“carried too much weight compared to other”
money laundering risk factors. It is concerning that HMRC has a repeated tendency to view AML risks from a more narrow tax perspective instead of considering a broader set of AML risks, despite being identified as a weakness. That is not my diagnosis but the Government’s diagnosis of the problem.
I raised several specific issues in our previous days in Committee, but they are absolutely relevant to support this amendment. The most recent assessment of HMRC’s effectiveness in this area showed that it was failing to keep pace with the requirement to register a business within 45 days, with performance worsening over the year from 78% in 2020-21 to only 70.71% in 2021-22. In practice, this means that more businesses—nearly one-third—are operating outside the scope of its supervision for longer periods than in previous years.
The next point is that the self-assessment highlights issues in the ECS recruitment process and delays in appointing staff, which have resulted in existing staff members being asked to fill in with training duties. That goes back to my earlier point on the last amendment about the lack of qualified resource. HMRC discloses that there continues to be delays in publishing guidance for businesses under its supervision on the steps required to meet their regulatory obligations as well as on responding to specific money laundering risks.
Fourthly, the volume of face-to-face visits conducted by HMRC has slowed down—there has been a downward tendency in the number of on-site visits. There were 1,265 in 2018-19, and in the year 2021-22 that had slumped to 289—for most people, Covid was behind us, so I am not sure that that is an entirely legitimate explanation.
The next point is that HMRC has not yet used civil powers it has at its disposal to issue censuring statements for failing to comply with the MLR, or injunction powers to prevent a future breach. Again, I am sure that is happening because it simply does not have the resources available.
Lastly, an increase shows signs that HMRC is ramping up its enforcement as a supervisor, but the penalty amounts being recovered are reducing. A total of £44.8 million in fines were issued between 2018-19 and 2021-22 have now been revised down to just £8.6 million. Again, I am sure that this all goes back to resource and specifically to focus.
As I said in my opening comments—I know this from my experience of being an HMRC oversight Minister for Brexit border readiness—there is a huge cultural focus on tax collection in HMRC. There is nothing wrong with that, but this is a first cousin and it is HMRC’s responsibility to look after this stuff, and, frankly, it is not doing the job properly. My amendment would simply put some focus on that in the Bill. Again, I know from my experience as a Minister for five years that officials respond to these kinds of controls in the way they manage the resources in their department. I hope my noble friend the Minister will listen. I beg to move.
Lord Leigh of Hurley (Con)
My Lords, I will make a disclosure further to my subsequent disclosure of being a member of the Institute of Chartered Accountants in England and Wales; I am also a member of the Chartered Institute of Taxation, also by examination, which means that in theory I am capable of giving tax advice but, sadly, not in respect of anything after 1985. None the less, I feel that I should disclose that when discussing this issue.
It is customary to congratulate a noble friend on the introduction of an amendment, and I very much congratulate my noble friend on the introduction of this amendment. He speaks with great knowledge of the inside track of what is going on in the Treasury, and he is the one person who stood up against potential fraud taking place. As such, I hope that my noble friend the Minister, the noble Lord, Lord Sharpe of Epsom, will listen to my noble friend’s words. I appreciate that this has been thrust upon the Minister and it is not normal Home Office territory; it is not even the Business and Trade territory of my noble friend Lord Johnson of Lainston but Treasury territory.
However, this amendment is particularly important. It seeks to amend the HMRC Act of 2005. The problem with the Act as it stands is that it does not make stopping tax avoidance or even evasion a big enough priority for HMRC, and as a result HMRC views it as part of a sort of cost-benefit analysis rather than as a deterrent. This is particularly worrying with regards to VAT, where VAT avoidance can distort competition. As a result, the EU Commission used to occupy an oversight function with regard to the application of VAT and would always take action where a member state did something with VAT that distorted competition. For example, Italy tried to give an amnesty to companies which had not paid VAT in order to save money in Italy, but the Commission stepped in and stopped that. However, now it has lost that oversight, so the question is: who polices HMRC with regard to the application of VAT?
Noble Lords will recall that we discussed at Second Reading the case of 11,000 Chinese businesses that registered themselves at the flat of a Mr Dylan Davies in Wales, who was subsequently pursued by HMRC and the bailiffs for unpaid VAT. When we discussed the issue, we referred to it from a Companies House perspective, which had not picked up that 11,000 companies were registered in a two-bedroom flat in Wales. Actually, HMRC should have picked up on that; had this amendment been in place, maybe it would have done so. There is a history of HMRC not seeking to pursue fraud, never mind money laundering, so the very least we can do is make sure that it has a duty to detect money laundering where it sees it. I am indebted to Richard Allen of RAVAS, who has pretty much run a one-man campaign against VAT fraud and highlighted these sorts of issues. There are clearly other issues in the 2005 Act, but this is an opportunity to plug one very important hole.
Lord Vaux of Harrowden (CB)
My Lords, I will briefly support this amendment. As I said on a previous group, I was surprised to discover that the vast majority of small accountancy firms are not regulated by the Institute of Chartered Accountants in England and Wales, of which I am a member—fortunately, I am not also a member of the Chartered Institute of Taxation.
That majority of small firms are the ones doing the verification under the overseas entity register and will be the authorised corporate service providers. They are, or will be, regulated by HMRC for anti-money laundering purposes, and that is the qualification they need to be able to do the verification. If HMRC is not carrying out this role seriously—which it is not—then all the safeguards built into this Bill on verification become meaningless. It is incredibly important that HMRC’s resolve in terms of its responsibilities as an AML regulator is sufficiently stiffened to mean something for all these ACSPs and the due diligence verifiers in the overseas entity register. Without that, this Bill loses an awful lot of teeth.
Lord Fox (LD)
My Lords, it is true that the Minister is being asked to take on Treasury functions—having first talked about cryptocurrency, we are now dealing with this issue—and I look forward to his response. I, too, support the noble Lord, Lord Agnew, who has been consistent in his theme that, without due, proper and improved enforcement, the Bill that we are spending all these hours debating will have very little effect on the outside world. This is one element of the enforcement story.
The noble Lord’s point is bang on: where there is a finite resource—which, of course, there always is—HMRC will target what it believes benefits the country most. As the noble Lord pointed out, that tends to be tax generation rather than AML functions. For this Bill to be successful, something needs to change to refocus the Treasury on AML issues, as we have heard. If that is not to be the noble Lord’s amendment, what will it be?
Lord Ponsonby of Shulbrede (Lab)
My Lords, I agree with all the points that have been made by noble Lords. When on the previous group the Minister read out the figures recovered, they were derisory compared to the amount of dirty money that it is speculated is washing around the systems for which we are responsible. The whole thing is extremely important. The noble Lord, Lord Agnew, speaks with great authority on this matter. He is an insider and, as the noble Lords, Lord Fox and Lord Vaux, said, this is a way of getting proper enforcement into the Bill so it has proper teeth and so that HMRC can reprioritise not just tax generation but its work against money laundering. We support the amendment.
Lord Sharpe of Epsom (Con)
My Lords, once again I thank all noble Lords who have spoken, and I particularly thank my noble friend Lord Agnew for his amendment. While the Government agree whole- heartedly on the critical role that supervision must play in tackling economic crime, we cannot support the proposed new clause. HMRC already has an anti-money laundering supervisory function, and it takes its responsibilities very seriously. HMRC supervises nine sectors and is already the default supervisor for trust or company service providers when they are not already subject to supervision by the Financial Conduct Authority or one of the 22 professional body supervisors. The proposed amendment would duplicate these provisions and to that extent it is unnecessary. Furthermore, it could make HMRC responsible for all anti-money laundering supervision, potentially cutting across existing regulatory relationships, such as that between the major banks and the FCA. HMRC takes its money laundering supervisory responsibilities very seriously.
My noble friend raised a number of issues regarding face-to-face compliance and so on. He said that the number of face-to-face compliance visits dropped from 1,265 in 2018-19 to just 289 in 2021-22, but these figures are misleading because the overall number of interventions was greater, with the total number increasing from 1,396 in 2018-19 to 3,725 in 2021-22. Although these figures include a mass-targeted exercise checking for business risk assessments and other key documents in 2021-22, the total would still have increased from 1,396 to 2,329 without that. A range of factors caused the variation in face-to-face intervention levels from 2018-19 levels including, as my noble friend noted, pandemic issues, the impact of recruiting and training —I will come on to that in a second—with a large number of new officers and differing resource levels needed to support different types of interventions. In 2022-23, HMRC carried out more than 3,000 interventions, of which more than 900 were face-to-face. It also issued more than 750 penalties to non-compliant businesses and refused more than 400 applications to register. HMRC’s anti-money laundering function is carried out by its fraud investigation service and works alongside other teams in this section and across government and law enforcement to maximise its impact.
My noble friend asked whether it is true that HMRC is failing to meet a legal requirement to register businesses within 45 days of application, with a reduction from 78% to 70% meaning that nearly one-third are operating outside the scope of supervision. Nearly one-third of applicants are outside the scope of supervision while their applications are being determined. Businesses are under supervisory scrutiny during the application process, and HMRC’s risk-based approach means that businesses from the highest risk sectors are prioritised. The highest-risk sectors are money services businesses and TCSPs, which cannot begin carrying out relevant activity until HMRC has determined that they are fit and proper. There are some cases where it is not possible to process an application within 45 days, for example, if waiting for important information from an overseas agency. However, there have been particular challenges that caused delays that HMRC regrets, including issues with its computer system, but I understand that significant progress has been made recently and that HMRC is now much closer to achieving the 45-day turnaround for all but the most tricky cases.
The Government are clear that further reform of the anti-money laundering supervision system is needed, but the best scale and type of reform to improve effectiveness and solve the problems that have been identified is not yet clear. His Majesty’s Treasury will issue a formal consultation on the possible options by the end of June 2023. Implementation timelines will depend on the outcome of this consultation.
My noble friend Lord Agnew and the noble Lord, Lord Vaux, asked about HMRC’s performance as a supervisor. A senior manager independent of the supervision team carries out a robust annual assessment of HMRC’s supervision against OPBAS standards. The process currently under way to deliver the next self-assessment has also involved an assurance team from HMRC’s customer compliance group to add a further layer of scrutiny and independence to the process. This assessment must necessarily highlight any problems and areas where HMRC can improve its supervision. Those issues include needing to recruit and train large numbers of new officers—again, to address the question from my noble friend—and some inconsistencies in performance across the unit. However, the 2021-22 assessment judged that HMRC is effective and compliant in its obligations under the money laundering regulations and as set out in the OPBAS sourcebook, driving up performance despite the pandemic. The assessment also highlighted numerous strengths, including well-structured risk assessments, use of multiple supervisory tools in a risk-based approach and a robust registration process. On recruitment, HMRC’s supervision team is larger than it has ever been now, totalling more than 400 staff.
All this will ensure that the risks and implications of each option are fully understood before the Government commit to any particular model of supervision. Pre-empting this through an amendment of this type risks generating exactly the type of confusion over responsibilities that I think my noble friend seeks to avoid. I therefore hope that he is able to withdraw his amendment.
Lord Vaux of Harrowden (CB)
I have to say that I am becoming increasingly concerned as we go through this process that, every time we raise concerns about things, we are told that everything is fine. That is what we are being told now—that HMRC is doing a really good job of the ML regulation. The truth is that we have massive quantities of money laundering going through the UK market, and in many cases that is enabled by people who are regulated by the HMRC—a lot of the small entities particularly. So there is a problem, and we keep being told that it is not that serious. It worries me substantially that we are not really taking this seriously or trying to solve the serious problem that this country has. We have become a laughing stock and are known as the “London laundromat”. It is embarrassing.
Can I ask a supplementary question? As I mentioned before, the ACSPs are going to be performing the verification processes, which are not actually going to be covered by the anti-money laundering regulations. The people doing it have to be registered with an anti-money laundering regulator, but the regulators themselves do not actually have any process set out for ensuring that the verification processes put in this Bill are covered. How do we bridge that gap?
Lord Sharpe of Epsom (Con)
I have to say to the noble Lord that I did not anywhere say that the Government say that everything is under control and perfectly fine. As the noble Lord will be aware, the anti-money laundering regulations themselves are due to be looked at.
The second part of his question relates to why HMRC does not supervise the TCSPs properly, allegedly —but it does.
Lord Vaux of Harrowden (CB)
I am looking forward to when this Bill goes through and becomes an Act as to the verification processes being put in place by the Bill by the ACSPs.
Lord Sharpe of Epsom (Con)
Ah, the noble Lord said ACSPs—my apologies. I misheard an acronym. In that case, I shall have to write on that, because I do not know the answer.
Lord Thomas of Gresford
“Strategic lawsuits against public participation
(1) It is an offence for a person or entity without reasonable excuse to threaten civil litigation against another person or entity with intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime.(2) A person guilty of an offence under this section is liable— (a) on summary conviction in England and Wales, to a fine;(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;(c) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).”Member’s explanatory statement
This amendment introduces a new criminal offence to deal with groundless threats in pursuance of SLAPPS in order to suppress investigations into economic crimes.
Lord Thomas of Gresford (LD)
My Lords, I will speak to my Amendment 80, in my name and those of the noble Lords, Lord Cromwell and Lord Agnew, and the right reverend Prelate the Bishop of St Albans, for whose support I am most grateful.
I will give a little background to set the amendment in context. In the 2021-22 Session, I drafted and introduced a Private Member’s Bill on the issue of SLAPPs, based on the Ontario model, as endorsed by the Supreme Court of Canada. Obviously, I had modified that model to suit the procedures of the civil justice system in England and Wales. Through the noble Lord, Lord Wolfson of Tredegar, I met with the Under-Secretary of State in the MoJ, James Cartlidge MP, and his officials, and had a very positive meeting with them.
My draft Bill was basically acceptable in principle, but there was one matter, they told me, it did not deal with: the scourge of pre-action threatening letters, designed to inhibit and intimidate journalistic or academic investigation. However, I was told that the Government were proposing a consultation on the issue, and indeed there was a call for evidence on 17 March 2022. It was wide-ranging; there were 48 questions asked of respondents. As it happens, not one referred to the issue of threatening letters prior to proceedings. However, one respondent suggested that any pre-action letter should require a statement of truth, so that any false allegations in the letter could be treated as a contempt of court.
The consultation finished in May of last year, and the MoJ published a full response in July. Dominic Raab said in the foreword:
“Strategic Lawsuits Against Public Protection, or SLAPPs, are a growing threat to freedom of speech and a free press – fundamental liberties that are the lifeblood of our democracy. Typically used by the super-rich, SLAPPs stifle legitimate reporting and debate”.
This is the point that I want to draw to your Lordships’ attention—he continued:
“They are at their most pernicious before cases ever reach a courtroom, with seemingly endless legal letters that threaten our journalists, academics, and campaigners with sky-high costs and damages”.
At the Second Reading of this Bill, the noble Lord, Lord Sharpe of Epsom, said:
“The Government are committed to tackling SLAPPs”
—I am sure that is right—
“but as the first country to pursue national legislation on such a complex issue”
—he ignored all the states of the United States, Canada and Australia, where such legislation exists, but never mind about that—
“it is right that we take the necessary time to consider this carefully and make sure we get it right. We will introduce primary legislation to tackle SLAPPs—this is where I am going to upset all noble Lords—as soon as parliamentary time allows”.
Now, I have to admit, I was upset. He continued:
“We are in the process of ensuring that we have anti-SLAPPs legislation which properly and comprehensively addresses the problem”.—[Official Report, 8/2/23; col. 1317]
So when will parliamentary time allow? Certainly not in this Session: it is highly unlikely that it will feature in a programme running up to a general election. So we are looking at years before this legislation can come to pass, although I guarantee that a Liberal Democrat-led Administration would deal with the matter as a priority.
I come to the substance of my amendment. I take the view that the endless stream of threatening letters—the “most pernicious” element, as Mr Raab described it, and really he should know—can be dealt with in the context of this Bill by criminalising their use in the investigation of the crimes set out in Schedule 9. I appreciate that may not cover the whole gamut of strategic litigation, and that a wider Bill will be necessary in due course, but investigative journalism is very much involved in turning over the stones of fraud, money laundering, bribery and the rest, and it is certainly in that area that SLAPPs have most frequently been used.
So the new offence that I propose could not be simpler:
“It is an offence for a person or entity without reasonable excuse to threaten civil litigation against another person or entity with intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime”.
I think that is fairly understandable. The prosecution would have to prove a threat; a solicitor’s letter will speak for itself, and it will be for the jury to decide and judge its contents. Evidence will be necessary, of course, to prove intent, but that raises no more problems than in any other case in which intent has to be proved. Again, it will be a matter for a jury. An evidential burden would be placed on the defendant to raise a reasonable excuse for the prosecution to disprove, and the ultimate burden of proof of guilt would, of course, rest with the prosecution.
I believe that an offence of this nature, simply stated, would immediately result in a change of culture among those reputation lawyers who profited from this type of litigation. Their collective response to the consultation to which I referred was, “Nothing happening here, guv. Threatening? Oh, it’s just the rough and tumble of ordinary litigation”. No longer would the young Turk in the office be able to dash out on his laptop ill-considered threats. He would know that he will have a responsibility to interrogate his client thoroughly before committing his firm to intimidating conduct which would land both him and his senior partners in the dock, with all the reputational consequences for themselves. Further, it would be a great relief to threatened investigative journalists if, instead of having to consult their lawyers at considerable expense, they could make a complaint to the police and allow the criminal law to take its course. We can make this change now and let the great stew of reform of the civil procedure system which is slowly cooking in the MoJ follow “when parliamentary time allows”.
I conclude by strongly supporting the other amendments in this group for the same reasons. These are creating the means to tackle the SLAPPs problem of imbalance, as described in paragraph 15 of the Government’s response to the consultation. This is how the Government put it:
“the extreme power imbalance and inequality of arms between, on the one hand, media organisations, advocacy groups, academics, and journalists and, on the other, Claimant corporations or wealthy individuals who typically bring these cases”.
This group of amendments is designed to do something now—action, as the noble Lord, Lord Agnew, called for on an earlier amendment. I beg to move.
Baroness Stowell of Beeston (Con)
My Lords, I am grateful to my noble and learned friend Lord Garnier for allowing me to speak before him. I shall speak to the three amendments I have tabled in my name. I should declare that I chair the Communications and Digital Select Committee, and I have tabled those three amendments with the full authority of the committee, because they follow the work that we have done over the past year or so inquiring into the practice of SLAPPs. We have also been in correspondence with the Solicitors Regulation Authority, and that correspondence is available on the committee’s website.
My amendments are Amendments 87, 88 and 89. I am very grateful to the noble Lord, Lord Cromwell, for signing all three of them and to my noble friend Lord Faulks and the right reverend Prelate the Bishop of St Albans for signing Amendments 87 and 88. I add, in a personal capacity, that I support the other amendments in this group, both that from the noble Lord, Lord Thomas, and the noble Lord, Lord Cromwell.
At Second Reading, we heard a comprehensive description of the impact of SLAPPs against journalists and public bodies, and the noble Lord, Lord Thomas, has given us a taste of that in his opening remarks, so I will not go over any of that again.
In very simple terms, looking at our different amendments, the noble Lord, Lord Thomas, is tackling this from the perspective of the rich and powerful who abuse the legal system; the noble Lord, Lord Cromwell, is seeking to introduce provisions that support journalists or public bodies in mounting a defence against that action; and, in my amendments, I am trying to deter and prevent solicitors from supporting anybody, normally the rich and powerful, in bringing forward this action in the first place.
In Amendments 87 and 88, I am trying to make it explicit that solicitors cannot accept clients who want to abuse the legal system and avoid and suppress information that could be relevant to economic crime, by giving the regulator clear power to fine and sanction solicitors who breach that rule. They also make it clear that dirty money cannot be accepted for fees when the purpose of the action could prevent someone being subject to the justice system.
To unpack that a little further and focus on those two amendments, at the moment the SRA can fine traditional law firms and solicitors up to £25,000—we know how small a sum that is for some of the very large and powerful legal firms involved. Strangely, the regulator can fine different types of law firms—what are known as alternative business structures—up to £250 million, but this applies only to that kind of category of firm. There is an odd discrepancy. The Solicitors Regulation Authority recently criticised the inadequacy of the £25,000 limit and called for it to be addressed.
My amendments are very much in line with the aims of the Bill, which already removes the regulator’s fining cap for a narrow set of economic crime transgressions but does not specify that this will be applicable to SLAPP cases relating to economic crime. The SRA has said that the Bill’s tests are tightly drawn and the numbers of relevant cases that will fall within them are limited. My Amendments 87 and 88 make it clear that measures to remove the fining cap for professional misconduct also apply specifically to cases that involve an abuse of the legal process to suppress legitimate reporting on economic crime. Not all SLAPPs are about economic crime but, importantly, the regulator says that around half of its current SLAPP investigations are linked to economic crime. Amendments 87 and 88 therefore provide a sensible and proportionate change that supports the spirit of the Bill and government policy to tackle SLAPPs.
Amendment 89 is about closing loopholes that allow the rich and powerful to abuse our legal system and use criminal funds to pay for it. Throughout our scrutiny of SLAPPs as a committee, I have learned that payment for legal advice is not subject to the same type of money laundering regulation checks as other legal services. The Proceeds of Crime Act apparently does not prevent lawyers accepting dirty money to pursue SLAPP cases or require them to report suspicious activity. We have held evidence sessions on this matter and our witnesses described it as a significant issue. Addressing this is complex because—I say this in a Committee of very distinguished lawyers—everyone should have a right to use our justice system and lawyers will need to be able to represent criminals without prejudicing confidentiality. I understand the argument that I expect lawyers to make on the need for criminals to be able to seek proper support and for questions not necessarily to be asked about money.
Lord Cromwell (CB)
My Lords, I, too, support all the amendments in this group, two of which are in my name. I am very grateful to noble Lords who have added their names to my amendments and I have added my name to their amendments, so we are all onside together, I hope.
There are many good actors in our financial and legal systems, and I hope we can take that as a given. However, the need for this Bill and the general welcome it has received from all sides reflects the need to address the dark areas where reform is essential to meet modern challenges. One such is Companies House, which we discussed at length on previous days. Today, we have had money laundering and another, which we have now reached, is the use of SLAPPs—the use of UK legal processes and law firms to harass those who seek to publish public interest information relating to economic crime.
The problem with legislating to prevent SLAPPs, other than the Government’s refusal to do so, has been definitional. Everyone has the right to defend themselves and their reputation, and lawyers have a role in seeing off scurrilous attacks. However, it is widely acknowledged that, increasingly, some actors weaponise the law not to seek redress for unfounded slurs by a legal remedy but to use UK law firms to bludgeon into silence those investigating economic crime and thereby ensure that economic crime remains concealed.
As a senior former Law Lord, who, sadly, is unable to be here today, said to me only yesterday, the legal profession cannot simply be asked to regulate itself. The Government have very limited resources to do so, so we must protect investigative journalists who fulfil the vital function of bringing economic crime into the light.
Acting against SLAPPs belongs in this Bill. In previous days of debate and again today there have been references to the “London laundromat” and similar terms. In some ways, you could argue that the UK has become a market leader in economic crime. It is possible to go on kleptocracy tours, where you drive around London and buildings are pointed out to you—breathtakingly expensive properties derived from unexplained wealth. In April 2022, the National Crime Agency reported that the scale of money laundering in the UK was in excess of £100 billion per year. SLAPPs are an inseparable part of this dark side of our financial industry.
In the same month as the National Crime Agency published its report on money laundering, the Foreign Policy Centre and ARTICLE 19 published the tellingly entitled, London Calling. They have made it clear to me—I do not want to up the ante on the noble Baroness, Lady Stowell—that at least 70% of the SLAPP cases reported to them have a direct connection to economic crime.
It is simply too easy for those with vast resources to deploy UK law firms to impede and suppress economic crime investigations. This is not some nicety or obscure point of technical legal finesse; it has embedded itself in our legal system. It intimidates the weak and it takes over victims’ lives, often for years. Those willing to provide SLAPP services do not just operate against UK targets. Daphne Galizia, a Maltese journalist investigating corruption, was hit with no fewer than 47 libel cases as part of a direct, grinding intimidation strategy led by a UK law firm. As a tragic footnote to her story, when she persisted in exposing corruption, someone decided the intimidation was not working and she was simply murdered.
I will not weary the Committee with further examples. The real point to note here is that, exactly because SLAPPs are so effective, most economic crime information of this sort never sees the light of day. Editors simply cannot take on the costs and risks of resisting such attacks, and newspapers are muzzled in reporting economic crime. In short, the Bill is a welcome opportunity to tackle the ills of economic crime, but one that comes along only very occasionally, as others said in the preceding days.
I have done my best to explain why this Bill is the correct legislation to put into law protection from SLAPPs and thereby remove the stain they place on the reputation of our legal profession, the damage they do to the UK’s rule of law and their use in distorting UK markets. But I should not need to labour these points, for the following two reasons. First, there has been vigorous and repeated cross-party support in both Houses for dealing with SLAPPs. Secondly, as the noble Lord, Lord Thomas, highlighted for us, the Government have repeatedly and specifically declared not only that they are very concerned about this issue but that they intend to legislate to deal with it. However, these declarations have always ended the same way: with promises to act “in due course” or “when parliamentary time allows”. I am sorry, but there is absolutely no sign of it on even the furthest horizon, and the electoral horizon is now getting very close. I hope the noble Minister will take a more engaged approach.
I thank noble Lords for their patience and I now turn to the amendments. The amendment of the noble Lord, Lord Thomas of Gresford, tackles the issue of SLAPPs head on, making it an offence to use threats in this way. The key point of this amendment is that it defines an offence to which the court can apply its judgment, and its existence should discourage the use of SLAPPs. The noble Lord, Lord Thomas, put this across brilliantly. Will the court get it right every time? As in any other area of law, perhaps not, but this amendment would be a great practical step forward.
I turn to the three amendments in the name of the noble Baroness, Lady Stowell of Beeston, which she again put across so well. The use of SLAPPs, as she highlighted, needs action on several fronts to reduce or remove the incentives and dismantle the enabling environment. These amendments would enable the regulatory authorities to act more effectively to punish and deter UK firms from engaging in SLAPPs, first by imposing more meaningful fines on those conniving in the suppression of information on economic crime, and secondly by closing a loophole whereby, almost incredibly, a publication seeking to expose economic crime can face a heavily resourced attack using UK lawyers paid with the proceeds of crime. This is an abhorrent oversight that needs to be ended.
I turn to the two amendments in my name, Amendments 105 and 106. I will take these together as I have already been speaking for some time. Amendment 105 enables a public interest defence for someone investigating economic crime and attacked with a SLAPP. The defence is that their disclosure is relevant to the investigation of economic crime and publication is in the public interest. It provides a basis for a defence but is not a carte blanche for journalists; the court will need to be convinced. I hope the Minister will recognise its value as a basic protection for those exposing economic crime.
Amendment 106 needs a bit more unpacking. It enables the court to strike out all or part of a case that is being used to prevent disclosure or publication of information relevant to the investigation of an economic crime. Now, some may challenge the need for such a provision, saying that the courts can already strike out abusive cases, but while in theory a lawsuit filed for an improper purpose can be considered an abuse of the court's process and therefore disposed of pre-trial, in practice the courts have been highly reluctant to make any such inference.
I hope that the Committee will allow me to summarise why this is the case. Under the Civil Procedure Rules, there are currently two ways to dispose of a claim pre-trial: by filing a motion to strike under CPR 3.4 or a motion for summary judgment under CPR 24.4. Of these two motions, only the motion to strike explicitly provides for disposal of claims that represent an abuse of the court’s process. The associated practice direction explains that an abuse of process includes claims that are
“vexatious, scurrilous or obviously ill-founded”,
but there is no established legal definition for vexatious or scurrilous.
There is some case law that suggests that the improper use of the court process could be considered vexatious and therefore abusive. Does this help? Sadly, not really, because it is very doubtful that CPR 3.4 ever could be used in this way, for two reasons. First, improper purpose has been interpreted by the courts in an extremely narrow way. For example, filing a lawsuit with the sole purpose of financially ruining the target, which is a typical SLAPP tactic, is not considered improper by the court. Secondly, and more broadly, courts are universally and perhaps understandably reluctant to infer an improper purpose on the part of the filer where doing so would lead to the dismissal of the case. The Committee will therefore not be surprised to learn that I am not aware of any SLAPP case which has been filtered out on this basis.
So where else can we turn? Frivolous cases—that is, those that are entirely meritless—can be disposed of pre-trial using the aforementioned Civil Procedure Rules. However, the hurdle for such motions is insurmountably high. A motion to strike requires that a claim discloses no reasonable ground for bringing a claim. A motion for summary judgment requires the defendant to show that the claimant has no real prospect of success. The burden lies on the defendant to meet that threshold. So given the ambiguities inherent in defamation and privacy law, it is therefore exceptionally rare for such motions to ever succeed. I apologise for trying noble Lords’ patience with this explanation, but I hope I have gone some way to outline why in practice existing mechanisms to deal with abusive lawsuits are inadequate to deal with SLAPPs.
Lord Garnier (Con)
My Lords, I begin by confessing to having been at the media law Bar for the past 45 years or so, so I know a little bit, but not a huge amount, about the subject we have been discussing. I want to salute the enthusiasm of the noble Lords, Lord Thomas of Gresford and Lord Cromwell, and my noble friend Lady Stowell of Beeston. As I said at Second Reading, this is a subject that needs to be discussed. It needs a through and very comprehensive debate.
The Long Title of the Bill is:
“A Bill to make provision about economic crime and corporate transparency; to make further provision about companies, limited partnerships and other kinds of corporate entity; and to make provision about the registration of overseas entities”.
Having read that, I go on to admire the ingenuity of the drafter of these amendments to fit them into the Long Title because, whereas there is a debate to be had, and it must be had, about SLAPPs, I question whether this Bill is the appropriate vehicle for that debate. That is a procedural issue.
My second point is that when I began at the defamation Bar in the mid-1970s, the economics of the media world were entirely different. Print media were riding high. They were selling millions of copies. The Sun was selling nearly 10 million copies a day. The Daily Mail, owned by Associated Newspapers, was selling a huge number of copies a day. Social media and online media had not been invented.
I used to be instructed by newspaper groups to go to the Queen’s Bench Masters’ corridor, acting for defendant newspapers, to run up legitimate legal arguments—they were not made up—which were there to starve the claimant, in those days called the plaintiff, out of the claim. The newspapers knew very well that they had a case to answer, but they had more money, so the police officer, schoolteacher or nurse who had allegedly been defamed in the local or national newspaper, unless they had an immensely rich backer, was never going to be able to withstand the onslaught of daily interlocutory applications made against them. Sometimes the master would accede to some of the applications that we made, and sometimes they did not, but the newspaper did not care because it had the cash. The individual—the claimant or plaintiff—did care, and sometimes was frightened off by the prospect of having to spend vast sums of money to recover his or her reputation in court.
The boot is now on the other foot. The print media is impoverished and no longer as rich as it used to be; the regional press is decimated, the local press more or less non-existent, and the national press is under some considerable strain. If you want to make money in the media world, you do not do it by publishing printed newspapers—you do it through the broadcast or online media. What we are now seeing is that those who are in the legitimate, perfectly lawful and praiseworthy business of writing as journalists, and those who publish written journalism in hard copy as publishing companies, are finding it increasingly difficult to withstand the economic might of those who disagree with what they have to say in their newspapers. Do not get me wrong: I entirely sympathise with people such as Catherine Belton, who was sued by various Russians—a range of very rich people. But one would get the impression from listening to the noble Lords who have spoken so far that the courts are weak and feeble arbitrators of the disputes that are before them.
For the last 45 years, I have seen cases struck out—I like the American expression, to strike, that the noble Lord, Lord Cromwell, used a moment ago. For the last 45 years, and long before that, before I was out of nappies, Queen’s Bench judges in the High Court in the High Court in London—and I dare say in Edinburgh and Belfast as well—have been striking out cases that were abusive, vexatious or frivolous. What the courts have to deal with is not just the law but the evidence. Just because a worthy defendant complains that they are the victim in a SLAPP case, the court cannot simply take the allegation on the face of it—it has to look at the evidence. By and large, evidence is something that you get to at trial, albeit it that evidence is occasionally tested at the interlocutory stages of an action.
While saluting the enthusiasm of the noble Lords who have spoken in favour of these amendments and who have ingeniously used this Bill to run the argument, I urge the Committee to be cautious, because the number of SLAPP cases is remarkably small compared to the number of writs issued each year. It is important that this Committee does not mislead the public about the extent of the problem. Legitimate claims have repeatedly been incorrectly described as SLAPPs by the media—but of course the media has an interest in calling them SLAPPs, for the economic reason that I have described.
In the recent case of Banks v Cadwalladr, decided by Mrs Justice Steyn only last year, she said:
“Ms Cadwalladr has repeatedly labelled this claim a SLAPP suit, that is a strategic lawsuit against public participation, designed to silence and intimidate her. I have set out a summary of my conclusions in paragraph 416 below. Although, for the reasons I have given, Mr Banks’s claim has failed, his attempt to seek vindication through these proceedings was, in my judgment, legitimate. In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit”.
Despite this, Mr Banks’s claim continues to be referred to as a SLAPP by large sections of the media. Of even greater concern is the reference by some journalists to individuals taking out what they call SLAPP orders—whatever they might be—echoing the media’s disingenuous campaign against privacy rights, including by pejoratively referring to privacy injunctions or agreed confidentiality clauses as gagging orders.
I do not want to be misunderstood. SLAPPs are a problem, but their prevalence is wildly overstated, and it seems to me—after 45 years of jogging around this racecourse—that solicitors are unlikely to be complicit in many of them. I rather suspect that more solicitors are dealt with by the Law Society, the SRA or the police for stealing client money than for running SLAPP cases.
Let us please just settle down a bit and not get overexcited by the one, two or three Russian oligarchs who have made an allegation that they have been defamed and who, on the evidence, have sometimes been proven right and sometimes wrong. The essential point is that a dispassionate judge, dispassionately looking at the evidence, will make a dispassionate ruling on what he or she has found, as Mrs Justice Steyn did in the Banks case, and the world goes on.
Being sued is indeed expensive and annoying, and it enables lawyers to be instructed and charge fees—I am afraid that is part of the way we do things in this country—but to suggest that SLAPPs are a plague and a menace just on the say-so of one, two or three cases, of which a number of us may or may not disapprove, does not prove the case. There is much work to be done to look into the question of SLAPPs and much debate to be had, but this Bill is not the place to have that debate. I applaud the noble Lord, Lord Thomas, and other noble Lords who have brought forward these amendments because the matter needs to be discussed, but it is not properly discussed within the confines of this Bill.
Baroness Wheatcroft (CB)
My Lords, the noble and learned Lord, Lord Garnier, speaks as a lawyer. I speak as a journalist, with a long career in newspapers. I declare my interest as chair of the oversight committee at the Financial Times. I assure the noble and learned Lord that the very presence of the possibility of SLAPPs weighs very much on the minds of journalists. As he explained, newspapers no longer have the sort of money that might have funded the types of cases that he described and indeed worked on, but now there are some very important cases that they do need to pursue, and for that reason I very much support all the amendments in this group.
I will give just one example: the case of Wirecard, which was company fraud on a massive scale that cost a lot of people a lot of money. One brave journalist on the Financial Times had pursued the case for a long time, against huge opposition from the company and those around it who were making money from it. His editor was prepared to allow him to continue to pursue the case, at which point the German company hired a well-known London law firm which threatened all sorts of litigation and also criminal proceedings. It accused him, without any base, of having been interested in manipulating the share price of Wirecard in order to make a great deal of money. At that point, the Financial Times was risking a great deal of money and a huge hit to its reputation. The law firm bombarded the company and the journalist with letters threatening all sorts of things, but the Financial Times decided to stick with it. In the end, as we all know, that was the right decision and some people were able to salvage some honest money that would otherwise have been lost to an almighty fraud.
Lord Garnier (Con)
Before the next contribution, I apologise to the Committee but I must be in two places at once. I hope the Committee will forgive me for not being here when other speeches are made and the Minister winds up. If that is thought to be very rude, I shall sit here, and there we are, but if I may, would it be—
Lord Garnier (Con)
It is unprecedented and very rude of me, but there seems to be rather a lot going on at the moment.
Lord Cromwell (CB)
I will take 30 seconds to respond to a couple of the noble and learned Lord’s comments while the rest of the Committee decide whether they are happy. Apart from trying to remove from my mind the image that the noble and learned Lord planted earlier of him in his nappies and thanking him for his kind words, I say that he is exactly the kind of critical friend that we need to get this right. However, to suggest that it does not belong in this Bill, which is about economic crime and transparency, which SLAPPs directly impinge on, is disingenuously playing with words. SLAPPs are embedded in our system and directly relate to economic crime and transparency.
On his reference to there being very few cases, I made the point earlier that most cases never see the light of day because people are intimidated. That is exactly the point here. Our courts need defined tests to examine potential SLAPPs and sometimes say “That is not a SLAPP”, and sometimes say, “That is a SLAPP”. Some egregious cases will get that treatment. As my colleague to my left said, it is the threat of the sheer cost of getting to trial, along with all the other intimidatory tactics, such as of truckloads of documents turning up at your house on a Friday night, that we need to dissuade law firms pursuing.
Lord Lipsey (Lab)
My Lords, I hate to intrude on disputes between lawyers, even though the lawyers in this case seem to be on different sides. Like the noble Baroness, Lady Wheatcroft, I will intervene briefly as a journalist. At times, I was deputy editor and had charge of all the libel cases that came before us. In truth, there was an inequality of armaments. We had wonderful lawyers in-house, Mr Murdoch’s very deep pockets and an evidential base which would normally have been compiled by a journalist working to good standards. Many of the people wanting to sue us were not in that position at all; they took offence at something, whether it was right or wrong, but if the paper took a hard line, then they would go away.
We need to emphasise that the world has changed. Not only—and this is a perfectly valid point—are newspapers poor, but there are a number of extremely unscrupulous, very rich people, be they Russian oligarchs or any kind of oligarch, who are prepared to try anything they can to get a journalist or, even better, to stop the journalist publishing. I admire the courage of the FT in going ahead with the case the noble Baroness, Lady Wheatcroft, mentioned. I do not think many editors would have been so brave. This is the modern world. I am always disappointed when I find that legal firms are willing to go along with this kind of stuff.
There are not many laughs in the committee chaired by the noble Baroness, Lady Stowell—not because of her, as she is an admirable chair, but because the subjects of the committee do not lead to a lot of laughs. However, I laughed out loud when I found that the maximum fine that can be applied by the Solicitors Regulation Authority is £25,000; that does not buy you a coffee with a decent KC any more. It is a different world with the people who are operating in it now.
I shall conclude as the noble Lord did. We have heard that it will take years before anything happens. It will not be this year because we are in recession, nor next year because there is a general election coming up; so it will go on, and those who are against making the change will continue their lobbying. We now have an opportunity, by the ingenious use of this Bill by the noble Baroness, Lady Stowell, to force action now. We should seize it.
Lord Agnew of Oulton (Con)
I support Amendment 80, tabled by the noble Lord, Lord Thomas, and the amendments tabled by my noble friend Lady Stowell and the noble Lord, Lord Cromwell. I think there is a strong consensus—I will come to my noble and learned friend Lord Garnier’s point in a moment—that we should not just keep kicking this can down the road.
To give the Committee a little perspective, we are dragging our feet relative to the rest of the civilised world. The EU took steps a year ago to propose an anti-SLAPP directive and 34 US states already have anti-SLAPP laws in place. The need for reform is urgent. The figures put forward by the Foreign Policy Centre and members of the UK Anti-SLAPP Coalition show that SLAPPs are on the rise and that the UK is the number one originator of abusive legal actions. In fact, the UK has been identified as the legal source of SLAPPs. It is almost as frequent a source as all European Union countries and the US combined. That is the reality.
On journalists, obviously I defer to the noble Baroness, Lady Wheatcroft, who has been in the hot seat herself. They play an important role in transparency and in shining a light on bad behaviour. We have heard before in this debate and in other committees about the Azerbaijani laundromat, which was investigated by the NCA only following the light that journalists shone on it.
I think my noble and learned friend Lord Garnier is misled in that the vast majority of these cases never get to court. They are invisible, other than to the person who has been subjected to that action. I can speak with some passion on this because it happened to me only a year or so ago by an organisation that had received billions of pounds of public money. The implication in the letter I received was essentially a SLAPP, so I had to take a view. No lawyer ever heard about that, let alone a judge. That is happening on a far more regular basis than people are prepared to accept.
We come to the last part, which the noble Lord, Lord Thomas, and others have talked about—that there is not enough room in the legislative calendar to get this done. But here we are: we have an economic crime Bill on the books, whose drafting work has been done by very clever people—at least as clever as parliamentary draftspeople. Surely, they and the Peers in this place can get together to get the right clauses and then we will have done it. I get so frustrated about this. The Government seem so feckless in not getting on with it. What is the excuse? It is crystal clear to any thinking person that we need to have some legislation on the statute book to contain this.
Of course, there must be safeguards against reckless accusations that damage the reputations of decent people and the right to recover costs where that happens. But, as we heard from the noble Lord, Lord Lipsey, and the noble Baroness, Lady Wheatcroft, the reality is that there is an asymmetric warfare going on today which is completely different from anything that existed probably 20 years ago.
Here we have the chance for a clause that is well drafted—although I am a non-legal person—by the noble Lord, Lord Thomas, with supporting clauses from my noble friend Lady Stowell and the noble Lord, Lord Cromwell. Why will the Government not sit down and have a proper, grown-up conversation about doing this? As the noble Lord, Lord Cromwell, said, please do not just fob us off with, “No, we’re not going to do it. Withdraw your amendment”. I am prepared to have a fight about this on Report and to lead a Division in the House, because I am sick of it. It is time for this Government to wake up from their complacency and always looking to delay until we do not exist any more. I strongly support these amendments and I hope the Minister will have a credible answer to the question of why they are not getting on with it.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will make one or two brief observations, because almost everything that could be said has been said.
First, it is important to distinguish between the threat of litigation and the use of litigation. If you look at the threat of litigation, the arguments so powerfully put forward by the noble and learned Lord, Lord Garnier, go away. Going back more than 30 years, the late Captain Robert Maxwell MC was the past master in the use of threats. It was the courage of Bronwen Maddox of the Financial Times and her then editor that exposed him. She did not have to undergo an examination of what had happened because he died at almost exactly the same time. When people say, “This is very difficult. We need more time”, I say that we have had 30-plus years to deal with it.
Secondly, the problem of the use of litigation is, in a sense, a separate issue. As the amendment in the name of the noble Lord, Lord Thomas of Gresford, makes clear, it is important that this is looked at separately. Most urgent is dealing with the threat. I very much hope that the Bill will also deal with use, but that involves different considerations because, by that stage, you will have involved a court and the balance between the actions of the court and the regulator is more difficult.
However, saying “This is all very difficult” is no excuse for delay. This is damaging to the UK, and things have got worse in 30 years for two reasons. First, most lawyers jealously guarded their reputation, but I am afraid that a number now take the view that any publicity is good publicity and they do not guard their reputations as carefully as they once did. That is not true of many, but a few take that view. Secondly, the cost of litigation has escalated out of all proportion to the position 30 years ago.
In response to, “This is all too difficult. We need more time”, I say that we have had 30 years. Even for the Ministry of Justice, that is a very long time. At times I felt that it could be said of the Ministry of Justice what was said of Philip II of Spain: if death came from Spain, we would all be immortal. Let us therefore hope that the ministry will engage with this and get on with the matter.
I want to make one final observation. There is always this very real problem of lawyers using funds. However, the fact that it is a real problem means that we should investigate it and not just put it in the “Too difficult” box. I am afraid that the Ministry of Justice has too many large “Too difficult” boxes as an excuse for inaction, and the time for inaction has ended. I am very glad that the noble Lord, Lord Agnew, has taken the view that this is something on which we must make progress.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to rise to take part in this debate, which has been rich, full and powerful. I will seek not to repeat anything that has been said but simply to make a couple of points.
First, I offer the Green group’s support, showing that we have the broadest possible political support in your Lordships’ House for this approach. I also want to address the use by the noble and learned Lord, Lord Garnier, of “ingenious”. These amendments are not ingenious—they are obvious, reflecting an obvious step. It is interesting that a number of Members of your Lordships’ House, operating so far as I am aware entirely independently, have collectively brought together a group of amendments that forms a quite complete package. I am happy to accept that we can work on the detail, and I very much join others in wishing that the Government will work on the detail, but the package is there, approaching this issue from different angles.
I bring up a point made by the noble Lord, Lord Agnew, in the previous group, which reflected on the failures of HMRC to deal with money laundering. That is just one element of the way in which our institutions that are supposed to be taking on economic crime are simply not up to the task or resourced for it. I join the media crew here as a former newspaper editor, which is the perspective I come from. In many of the worst cases, as the noble Baroness, Lady Wheatcroft, outlined earlier, it is not law enforcement or HMRC that uncover situations that bring gross abuses and crimes to public notice but journalists and NGOs bravely stepping out to expose what is happening. The Government are not capable of doing that, and we desperately need the fourth estate to take those actions. It fills a gaping hole which otherwise will not be filled, and crimes will not be exposed if the media and NGOs are not in a position to do this.
I think the noble Lord, Lord Cromwell, referred to an important report from the Foreign Policy Centre and Article 19. Last night an event in the Houses of Parliament looked at an updated report that they had prepared called London Calling—a very timely event. To look at some of the contents of the report, it says that the UK is
“a leading jurisdiction for domestic and trans-national SLAPP cases”.
A 2020 study by the Foreign Policy Centre found that 63 journalists working on financial crime and corruption in 41 countries identified the UK as the leading international jurisdiction for legal threats. I also make the point—it was made by others, but it needs to be driven home—that this report notes that the use or threat of SLAPPs “rarely make the public record”. So, although the noble and learned Lord, Lord Garnier, says this is just a handful, it is the tip of an iceberg of people using the UK legal system for criminal purposes. It is not exposed, but we know that it is there.
I will make two final points. The world knows that that issue is there. If we think about the geopolitical state of the world now, this is broader even than the financial impacts. I note one estimate of the cost of worldwide economic crime: $274 billion. There is the financial cost, but also the impact in a world where the rule of law is under consistent attack, where we see not just individual oligarchs or kleptocrats but entire nation states attacking the rule of law. The UK is putting itself in a far weaker position by being the home where the kleptocrats, oligarchs and those states are able to use the law as a weapon.
Finally, we have mostly referred to the traditional mainstream media. Looking at the range of organisations involved in the initial launch of the Foreign Policy Centre and Article 19 report, on the panel were Tortoise Media, Open Democracy and English Pen. This concerns some very small, brave organisations with very few financial resources; it is not just the old legacy media, which still have some financial resources left. We have people stepping up to the plate. We think about London, but we have also seen a real rise of quality regional media in places such as Manchester, Liverpool and Sheffield, where local media is stepping up and doing investigative journalism. They have almost no resources to be able to take on the threats; they need legal protection, so this needs to happen at all levels. Your Lordships’ House has come up with a package that takes us a long way towards where we need to be. We must get there now. As many others have said, we cannot wait.
Baroness Altmann (Con)
My Lords, I add my support to my noble friend Lady Stowell’s Amendments 87, 88 and 89 and congratulate her and her committee on their work. I also support Amendment 80 from the noble Lord, Lord Thomas, and Amendments 105 and 106 from the noble Lord, Lord Cromwell. As I said at Second Reading, this is a vital issue that must be covered in this Bill. In this group, we are discussing threats and lawsuits whose intention is to silence, intimidate or censor critics such as investigative journalists. So often, as the noble Baroness, Lady Wheatcroft, explained so well, they stem from economic crime.
This issue is not just about actual lawsuits. As others have said, often the matter will start with a threatening letter or even a phone call, which is enough to stop journalists or investigators from pursuing inquiries. That is why so few SLAPPs have come to court. I respectfully disagree with my noble and learned friend Lord Garnier on whether the few cases are any indication of whether this legislation and these amendments are required. These threats and vexatious potential lawsuits threaten not just journalists, campaigners, authors or academics but everyone’s rights in this country. They limit the rights of the public to have matters exposed, such as bribe-taking, poisoning water supplies with toxic chemicals, or general economic wrongdoing, which falls squarely within the remit of this Bill. Our courts are supposed to be there to protect ordinary people and small companies without large resources against those with more power, money and influence. Without these amendments, that protection will be fundamentally weakened when we have an opportunity to strengthen it.
I am not a lawyer, but Amendment 80 seems sensible to me. I believe that the Law Society supports judiciary-led gatekeeping. Amendments 87, 88 and 89 from my noble friend Lady Stowell seek to remove the incentives to issue these kinds of threats by introducing properly meaningful fines and intend that payments should not be able to come from the proceeds of economic crime. Again, that seems eminently sensible. I will listen carefully to my noble and learned friend but, equally, I urge him to listen carefully to the powerful arguments across all sides of this Committee and either accept these amendments or introduce his own.
Lord Vaux of Harrowden (CB)
My Lords, I am not sure whether I can speak to this, being neither a journalist nor a lawyer. I am very sympathetic to what these amendments are trying to do. It must be right to try to prevent the abuse going on. However, I confess to feeling some niggling doubts. Journalists do not get everything right, and there are those who are not above embellishment or exaggeration. The balance of power is not only one way. A small company or individual may well find themselves up against a large media organisation, for example. Whatever we do, we must not make it harder or more expensive for innocent parties to defend themselves from unfair reporting, pre-emptively if necessary.
There is a balance to be found, and I am not yet convinced that these amendments quite reach it. That said, I agree that there is a problem with the current situation. It is being abused, and we need action sooner rather than later. So let us have the discussion and get something into the Bill. If not now, when?
Baroness Stowell of Beeston (Con)
I shall just add briefly a comment before we get to the wind-ups, in response to something that my noble and learned friend Lord Garnier said when he urged us not to overstate the problem of SLAPPs. I just wanted to make two brief points.
One has been made by many people already, which is that in fact, when it comes to SLAPPs we do not really know the scale of this problem, because so many of these cases never make it to a court of law. I wanted to make a second point in response to what my noble and learned friend said about not seeking to overstate the problem, and his questioning my and others’ ingenuity in bringing forward amendments in the Bill. My understanding of the reason for the Bill is that economic crime is a real problem. So, if we are legislating because that is the real problem, and we are aware that some of the most significant perpetrators of economic crime have ways of preventing the evidence that would lead them to be potentially subject to the justice system because they operate in that kind of market, as it were, surely we ought to seek to close that gap. Whether or not the number of them that might qualify under that heading is large or small, there is a gap. As I say, the objective here is tackling economic crime, and our amendments are only about economic crime.
I understand very much that the broader question of SLAPPs will have to be returned to, because the whole issue of SLAPPs cannot be addressed in an economic crime Bill. However, my amendments and others in this group are trying to make sure, in the context of economic crime, that those who may be the most significant perpetrators of it on a large scale have nowhere to hide.
Lord Fox (LD)
My Lords, this has been a fantastic debate and I will not add any pearls of wisdom and substance, but I would just like to just say something about process in response to the noble Lord, Lord Agnew. In the event that the Government are unable to satisfy what I think is the strong view of your Lordships that something needs to be done, I think we can pledge that the noble Lord, Lord Thomas, and I will work well within our own group to make sure that the comments of the noble Lord, Lord Agnew, about pushing this further on Report will certainly have some legs from our point of view.
Lord Cromwell (CB)
I will just add a word, first to the noble Baroness, Lady Stowell. The fact is that most SLAPPs are related to economic crime, and I think she was being a little modest perhaps in that area. This would certainly be a very good start—half a loaf is better than no loaf, and all those sorts of aphorisms. Colleagues who have spoken around the House have left me feeling quite optimistic, much more than I expected, I have to say, but then a pessimist says that things could not be any worse, and an optimist assures you that they can.
I am heartened in particular by the comments from some of the far heavier-weighted legal minds than mine—I am neither a journalist nor a lawyer—and by their willingness to grip this. There are definitional and other issues involved here, but if I may quote my colleague, they are difficult but doable. We ought to take that to heart.
My question is whether the Minister will rise to the challenge of working with us. This is not a question of us putting something up to be shot down; it is an offer to work together, drawing on the resources of this House, to put this right in the Bill, which, as we have exhaustively explained, is its natural home.
Baroness Blake of Leeds (Lab)
I thank everyone for the extraordinary debate that we have had on this issue today. I continue in the vein of looking for optimism in the outcomes of some of the discussions that we have had. I pay particular tribute to Members of this House who have joined Members of the other place in relentlessly pursuing this issue, to the extent that there is now a far greater understanding—not only in Parliament but in the wider country and the communities particularly affected—about the issue of SLAPPs, which perhaps a year or two ago was not understood at all.
To start by going back to the very basics, SLAPPs are, as we know, strategic lawsuits against public participation, abuses of the legal system, generally by the super-rich—and, it is important to remember, they are intended to harass, intimidate and financially and psychologically exhaust one’s opponent. I am not sure that that element has quite come through, although everyone is fully aware of it. We have talked today about this practice being embedded in the system and its close relationship to the scourge of economic crime. In other debates that we have had on the Bill so far, we have highlighted the real extent of economic crime facing this country. All of us have an obligation and commitment to come together to work out how we are going to deal with it.
As we have heard, the use of SLAPPs has been linked to Russian oligarchs. That is inevitable, given what has happened over the past year, particularly with regard to looking at ways to prevent journalists from reporting on their links to economic crime, with particular reference to the war in Ukraine. As we have seen, SLAPPs are not only used by those committing economic crime, but the amendments proposed here narrow the definition to those concerned with suppressing information on economic crime. The wider point which we need to take on board is about the serious concerns that SLAPPs are now being used to suppress democracy globally. It is important to put it as far as this.
I am sorry that the noble and learned Lord, Lord Garnier, has had to go, but I would like to say to him that his attempt to reassure us on the numbers has not had that effect at all. It has been clearly stated that the small numbers that reach court highlight and emphasise the problem that we have.
I shall go on to ask the Minister to comment on the view coming from the other place that SLAPPs are under a separate jurisdiction and therefore should be under a separate Bill. We have heard some great arguments as to why we should look at these amendments seriously and incorporate them into this Bill.
I thank all noble Lords who have spoken to their amendments and clearly given us a full understanding of the purpose behind them and how they will contribute to the overall objective. From our position on these Benches, we look forward to engaging in full and detailed conversations as to how, as I suspect will be necessary, we present further amendments on Report. We support the principle of the Government bringing forward effective legislation and will continue to call out this issue wherever it occurs, whether on this estate or elsewhere, when anyone in a position of influence puts undue pressure on someone to make sure that important matters do not see the light of day.
I want to highlight some of the reasons why feelings are running so high. We need to understand and remember the severe power imbalance between the claimant and the defendant. In this context, journalists and media outlets are put at a disadvantage from the outset, as we have heard today. Defending a legal case can, as we know, be prohibitively expensive and a huge drain on resource. As we need to emphasise every time we speak about this, SLAPPs can create significant financial jeopardy for journalists and media outlets, with legal costs starting to accrue long before cases get anywhere near reaching court.
Putting ourselves in the place of those who have been subjected to this, I think that the process of defending a legal case in this sphere can feel like punishment: a fear of devastating financial impact, potential loss of savings, their homes, pensions and livelihoods if a case goes to court. The effort in putting a case together involves massive distraction from the work that people are trying to do. As others have said—it is a serious charge but one we should take seriously—this is having the impact of undermining the basis of democracy.
We have talked about how libel laws in the UK are weighted, but we also need to emphasise the issue of libel tourism. It remains an issue in the UK. The bar to bring a case here is problematically low, and the use of privacy and data protection laws is increasing. We need to consider that SLAPPs in the UK are often pursued against individuals rather than the organisation they work for, which undermines the resources available to mount an adequate defence.
One of the themes running through all our discussions on the Bill is the reputational damage to London and, therefore, the country. London’s obvious position as a global hub for the super-rich has compounded the problem. We must make sure that clients cannot use threats of legal action to clean up their image and remove unfavourable information from the public domain. There has been insufficient recognition by the UK Government and official bodies of the connection between protecting media freedom and countering corruption.
Returning to the personal, I suggest that other factors include the psychological impact of intimidation and harassment on those subject to legal challenges. That has not been sufficiently recognised, and such things lead to a massive impact on mental health.
Will the amendments before us today tackle those issues? I think that is a subject for further discussion, but the main question that has been put repeatedly from across the Committee today is whether the Government are serious about measures to end these practices. We had some optimism in July last year when there seemed to be a commitment that legislative reform measures would come forward, but where are they? Are they being moved forward? Will the Government follow through by supporting the measures proposed in amendments to the Bill?
We have heard that this is a serious issue. It is urgent for so many reasons that we have discussed today. My last question for the Minister is: will the Government take this opportunity to act, recognising how urgent the situation is, and meet with us to discuss ways that we can move this important matter forward?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I warmly thank all noble Lords who have spoken in this debate and who have spoken to me directly on this issue. I also thank noble Lords for the enormous amount of thought and consideration that has been put into this issue by those who have spoken. There is significant strength of feeling across the Committee on this important issue. I begin by providing an assurance that the Government share those concerns and that it is clear to the Government that we should take legislative action against SLAPPs. As the Government have set out, for many reasons that have been mentioned in this debate, we are firmly committed to legislating effectively, comprehensively and without undue delay on this issue.
Noble Lords will not necessarily be entirely happy when I say that we do not think this Bill is the correct vehicle for tackling this issue. There are essentially two reasons for that. One is that here we are dealing with economic crime. I take my noble and learned friend Lord Garnier’s technical point about the scope of the Bill, but the major issue here is that, even if we were to put in an amendment to this Bill, it would still be too narrow because we are not covering matters that are not economic crime, such as freedom of expression, political interference, national security and so forth. The Government’s preference would be to handle the entire landscape of SLAPPs in one place, and that is not this Bill.
Lord Agnew of Oulton (Con)
The Minister talks about introducing some SLAPPs legislation “without undue delay”, but there is no possibility of a timetable to introduce that. We are only 15 or so months away from a general election, and the legislative timetable is jammed solid already. There is no fixed slot for it to come in. I utterly reject the idea that the Government want the perfect to be the enemy of the good: “We are going to do everything in one Bill”. Why not do this bit now, which will take very little parliamentary time? As the noble Lord, Lord Cromwell, said, it will deal with probably 80% of the problem, because we know that shutting down debate on economic crime is probably our biggest problem. When in 10 or 15 years’ time—this point was made by the noble and learned Lord, Lord Thomas—the Government finally find the perfect moment, although some of us will be dead by then, they could then repeal the relevant clauses of this Bill and do it all in one bit. But I utterly reject the pathetic excuse that this is not the right moment. I ask my noble and learned friend to be a little more straightforward in his commitment.
Lord Bellamy (Con)
My Lords, I entirely understand the frustrations felt by my noble friend Lord Agnew and others. It is not to be ruled out that we could find an appropriate legislative vehicle for this matter before the next general election. That is not to be ruled out. However, I cannot today go further than to say that this issue will be brought forward by the Government when parliamentary time allows. That is normally a long-grass phrase—kicking it into the long grass. I regard it today, and say it today, as a short-grass phrase because I am not at the moment giving up on having legislation relatively soon, but I can give absolutely no commitment on that matter.
Lord Thomas of Cwmgiedd (CB)
I ask the noble and learned Lord, as a little test of this commitment, is there is a draft Bill? If there is one, his assurance is really wonderful but, without one, is it not just a phrase for the long grass?
Lord Bellamy (Con)
I can tell your Lordships that the Government have not been idle in preparing possible drafts to deal with this matter, and I am very happy to keep in close contact with noble Lords between now and Report on progress and to discuss as widely as we need to how we should approach this matter.
Lord Cromwell (CB)
What the Minister is saying is potentially helpful. His initial statement was almost verbatim what we got at Second Reading and in previous Bills. I could almost set it to music now, I have heard it so many times, but we seem to be getting somewhere. Will he clarify whether he is happy to continue discussions with us about these Bills, which, apparently, the non-idle Government have been working on or about a possible amendment to this Bill? Will he clarify which one we are addressing here?
Lord Bellamy (Con)
It is the former. The second point here is that the Government are not happy, for reasons that I shall now, I hope, go into a little detail about, about the actual amendments being proposed here. I preface that by saying that we should not overlook the fact that there is one enormous conceptual issue behind all this, which is the question of access to justice. This is probably the first time that anyone has ever legislated against someone bringing something to court, which is something that we need to stop and think about. Where is the balance? If I may say so, reference has been made to the rule of law, and it is somewhat ironic to say that we must uphold the rule of law by penalising someone who seeks access to justice. That is a very difficult area, and we need to find a balance. The Government would like to explore further how that balance is to be found because, in the Government’s respectful view, it is not yet found in the amendments before the Committee today.
Lord Cromwell (CB)
I think that we are actually in agreement on that, and I hope that I made it clear earlier that what we need to do is to work together to get this right with critical friends, including the noble and learned Lord, Lord Garnier, who will bring a forensic examination of whether the work is right, but I go back to an earlier comment that this is difficult. Yes it is, but it is not impossible.
Lord Bellamy (Con)
I entirely accept that it is not impossible and, to take the phrase of a noble Lord earlier, that it is actually doable. I think that it was the noble Lord, Lord Cromwell, who used that phrase.
Baroness Bennett of Manor Castle (GP)
My Lords, I was hoping that someone with a great deal more legal knowledge than me would rise to speak, but I feel that I need to challenge the Minister’s comment that this proposal is unprecedented. Other noble Lords will be able to say more, but we have a process of law about vexatious litigants who are unable to bring cases. There is a whole set of rules there, and there are rules in the family courts that eventually stop cases being brought. So it is not the case that this is something that has been miraculously conjured out of the air that does not exist in any form whatever in the legal framework.
Lord Bellamy (Con)
My Lords, on that last point I had primarily in mind the amendments that seek to criminalise bringing cases before the courts, which is the subject of some of the amendments.
Lord Fox (LD)
I am sorry. I appreciate the access that the Minister is giving us. I am really following up the point that the noble and learned Lord, Lord Thomas, made. The Government are not being inactive. Can the Minister tell us how many people are in the dedicated team that is currently pursuing this issue? It is complicated, as he pointed out, and Government do want to get more depth on this, so how many people are now working on this, and when does he think they might actually come up with something that could then go into a draft Bill? In a sense, what is the timetable and what is the amount of horsepower that is going into that timetable?
Lord Bellamy (Con)
I am afraid I cannot give the noble Lord a timetable. I cannot tell him how many people are working on it, but I can tell him that important work is being done. I am not in a position, and I very much regret that, to go further than that today, but I am prepared to keep in close touch with your Lordships between now and Report to share progress and thoughts on whether there is a legislative vehicle that can conveniently—and soon—be introduced.
Lord Cromwell (CB)
I am sorry. I will press the Minister a little more on that. When will we first hear from him on that update on progress?
Lord Bellamy (Con)
Can I write to the noble Lord, Lord Cromwell, on that point?
Baroness Blake of Leeds (Lab)
Can I ask that we are all included in the correspondence?
Lord Bellamy (Con)
Absolutely. I will write to everybody after this debate and try to elaborate a little on what I have said. I hope noble Lords understand that in terms of my boss, I recently had a change of personnel, and it takes a little while to allow the dust to settle, if I may put it like that.
The only other thing I would respectfully draw noble Lords’ attention to, and I fully accept there is a certain amount of controversy as to how big this problem is, is that the Solicitors Regulation Authority issued a warning notice on 28 November 2022, which led to that authority undertaking investigations in relation to SLAPP complaints, so we are not without a regulatory instrument to at least hold the line until we are able to legislate. That, as far as one can tell, has had a salutary effect on the practical consequences of SLAPPs. It is not the case that nothing has been done.
Lord Thomas of Gresford (LD)
My Lords, the Minister said that the amendment which I have put forward criminalises access to justice. It does not do that; it criminalises a threat of litigation that is unwarranted and known to be unwarranted without reasonable excuse. It is perfectly simple, but I would be very unhappy to leave this Room today with the thought that the Minister has in mind that my amendment is criminalising access to justice.
Lord Bellamy (Con)
My Lords, perhaps I expressed myself a little loosely. Let me put it like this: in the Government’s view, this is not an area where we should introduce the criminal law, whether it is in relation to pre-litigation or in any other respect in terms of litigation. One is faced with a very basic question of when is something that is a robust and justifiable approach to litigation in a pre-action letter a threat. That is not straightforward, in the Government’s view. The Government’s view is that this is not a matter where the criminal law should intrude.
Baroness Stowell of Beeston (Con)
My Lords, I am sorry to interrupt my noble and learned friend, but his reference to the Solicitors Regulation Authority prompts me to ask him a couple of questions. He makes reference to access to justice and to the Government being nervous about legislating in a way that would call that into question. As I said at the start, the amendments that I have tabled, Amendments 87, 88 and 89, are directed at the Solicitors Regulation Authority. As my noble and learned friend has already said, it issued a notice recently to reinforce the fact that this kind of activity is unacceptable.
My amendments seek to codify that yet further and give it the power, which it does not feel it has sufficiently clearly in law, to act when a solicitor is conducting themselves in a way that could be supporting somebody trying to prevent proper inquiry into what could be economic crime. I am struggling because I understand the argument my noble and learned friend is making about parliamentary time and the Government wanting to legislate for this in the round, but I also know as a former business manager that it is very difficult for any individual government department to be confident, even if it wants and hopes to be able to legislate in the way he is indicating that he and his department do, because the timetable is not in its control.
There is frustration in this context because we know that this is about only economic crime and that we are proposing amendments that would tackle only economic crime, as the noble Lord, Lord Cromwell, has said several times—maybe this is a bigger issue than even the SRA is telling me. This would make a difference none the less. In my humble view—I am not a lawyer—I do not think we are proposing anything that would limit people’s access to justice. When my noble and learned friend goes back to his department, even if he cannot make any kind of commitment at the Dispatch Box today, which I understand, could he at least have a conversation with others that is a bit more open-minded than his colleagues seem to have been on this matter up to this point?
Lord Bellamy (Con)
I thank my noble friend for that intervention. I can certainly have that conversation. I do not want to give the impression that the Government are close-minded. We are very prepared to legislate and have said that we are willing; the question is finding the right vehicle. I will deal with my noble friend’s amendments in a moment. When I said a moment ago that there are issues around access to justice, I meant no more than that. We have to be very careful in talking about approaching a court and whether that is in some way unprofessional, subject to sanctions or otherwise criticisable.
As far as the Government can see—if I may think aloud—there are probably two essential mechanisms to deal with this, one of which is in part reflected in some of these amendments, although the Government would not entirely agree with how it is put. One is an early disposal mechanism and the other, critically, is a cost protection measure so that people are not exposed to costs. As has been said many times, the risk of having to pay the costs is the real imbalance. Those are two general thoughts that, I hope, illustrate that the Government are not closing their mind to this. We are thinking about it and hope to come forward with a comprehensive, balanced solution, but today I cannot say exactly when.
With that background, I will deal with the specific amendments, which the Government are sympathetic to but cannot accept. On Amendment 80 from the noble Lord, Lord Thomas, as I have already said, new criminal offences should be created with care. That is especially true when targeting professionals with responsibility for assisting persons to achieve access to justice. There is a risk of inadvertently undermining access to justice in that way and the Government’s view, as I have said, is that a criminal approach in this area is not correct and would in any case create quite a lot of difficulties around proof beyond reasonable doubt, the concept of reasonable excuse, et cetera. Criminal offences need to be clear and we are very reluctant to see a new criminal offence created. That is our position on Amendment 80—it is too far-reaching. On that basis, I ask the noble Lord, Lord Thomas, in due course to withdraw it.
Baroness Stowell of Beeston (Con)
Briefly, I urge my noble friend to look at the correspondence I have had with the SRA specifically about the Bill. The SRA makes it clear that what I am proposing by way of these amendments would give greater clarity to the fact that SLAPP cases which relate to economic crime would also not be subject to the current cap but would benefit from that cap being lifted, which the Government are seeking to do. To put it another way, my amendments are trying to make sure that the intention of what is already in the Bill is achieved in the way that the SRA is asking for.
Lord Bellamy (Con)
Indeed. I respectfully suggest to my noble friend that she may have copied the letter to which she refers to the Home Office and the Ministry of Justice recently.
Baroness Stowell of Beeston (Con)
It was also copied to the Minister’s office.
Lord Bellamy (Con)
Indeed. I suggest that I meet with my noble friend and we go through it with a fine-toothed comb. I am happy to meet with anybody else who wants to go through particular amendments with a fine-toothed comb and see where we are, because there is no point in arguing about things where we are ad idem.
The same point arises on Amendment 89, which relates to POCA—I pronounce it “poker”, but others pronounce it “pocker”—and Section 327 of that Act. Amendment 89 aims to stop corrupt claimants using their criminal property to pay their legal fees. Our view on Section 327 of POCA is that that is already effectively covered because it makes it a criminal offence for anyone to convert, conceal or transfer criminal property, so the payment for legal services using criminal property is already a crime. I am led to believe that the Solicitors Regulation Authority will shortly publish new guidance on the application of POCA in relation to solicitors’ responsibilities in that respect. So our position on our amendment is that it is already covered, but again, let us discuss this in detail so that we can get it right. Formally speaking, for those reasons I ask my noble friend in due course not to press her amendment today.
I am grateful to the noble Lord, Lord Cromwell, for his Amendments 105 and 106, and for the care and attention that he has devoted to this. Again, the Government’s position is that these amendments do not quite cut the mustard, if I may put it that way.
As drafted, Amendment 105, which seeks to create a new defence, would cut across several other areas of jurisprudence. There is a common law public interest defence for a breach of confidence, and a very careful balancing, in Section 4 of the Defamation Act 2013, as to when you can have a public interest defence in defamation cases. This kind of provision should not be rushed through without a careful examination of its side effects on other legislation and potential unintended consequences. Neither does the amendment quite attack what the Government would suggest is the main problem, which is not whether you have a defence but whether you have the money to fight it in the first place. You need some cost protection to be built into the SLAPPs framework.
The same point applies to Amendment 106 on the power to strike out. There are already powers to strike out, and the noble Lord makes it clear that we need to clarify those powers—but one cannot get away from the fact that, typically speaking, a strike-out application is very expensive and complicated, because you are trying to throttle a case at the beginning and the court is having to go through a great deal of work to get there. In the end, a strike-out will probably not be effective in achieving what the noble Lord seeks to achieve. We share the objective, but we are not sure that this is the right way to do it.
While we are sympathetic to the sentiment behind the amendments, from a technical point of view, the Government do not think that they are quite right. Unscrupulous claimants could exploit all this by ensuring that the process remains very complicated, long and burdensome. That is the Government’s position on these amendments. I repeat that I am very happy to engage so far as I can in a dialogue with noble Lords to see whether we can make further progress on the technicalities of this issue and look for a proper legislative vehicle in which to carry it forward.
Baroness Bennett of Manor Castle (GP)
I do not believe the Minister addressed the point that I and a number of other noble Lords raised about the international dimension of this, and the UK’s position in the international framework. Noble Lords may have seen that the noble Baroness, Lady Kennedy of The Shaws, was joined in this Committee by some guests, one of whom was Sebastien Lai, the son of Jimmy Lai, who was a victim of what has been labelled lawfare by the Chinese state in Hong Kong. We are also seeing British institutions being used as a weapon for that lawfare. Does the Minister acknowledge that there is a true international reputational issue and that the whole rule of law across the world is under attack?
Reflecting on what the Minister said, I think we heard something of a hint about the Government’s thinking that cost protection could be one way of addressing this issue. That fails to address the point made by the Labour Front Bench and others that, even if there is cost protection, an enormous amount of time, energy and stress goes into a case. Even if you are able to take away the financial threat, you are taken away from doing other journalism if you have to spend months engaging in a case.
Lord Bellamy (Con)
I thank the noble Baroness. I am perfectly prepared to accept that there is an international aspect. The Solicitors Regulation Authority is on the case, it has issued its warning notice—fired its warning shot—and that is having an effect, so it is not as if the position is not being tackled. The question is about legislation, and the need to get it right from a rule of law and an access to justice point of view. There is a conflict here, as the noble Lord, Lord Vaux and the noble and learned Lord, Lord Garnier, pointed out. One has some misgivings about this because, as was also said earlier, journalists are not always right, and one must bear that in mind. If you have ever been on the receiving end of the tabloid press as a defendant, you will know that they still have not inconsiderable power if you have no money to defend yourself.
Lord Cromwell (CB)
If I may say so, one of the formative experiences of my childhood was being on the receiving end of tabloid journalism, and it is something I will never forget. That does not alter my commitment to getting this right.
I am encouraged by the Minister saying that my amendments do not quite cut the mustard—“do not quite” is a pretty good score in my book. I agree with him that early access will be a key feature of the right answer here, and cost protection, depending on what form it takes, is potentially helpful. He constantly prays in aid access to justice is a big issue, and I agree that the definitional issue of a SLAPP is very important. However, in the conversations he has promised to have, I would want him to make a distinction between harassment and denying the right to justice. Denying the right to justice, the ability to go to court if you wish, is not what I am about—I am about where people have no intention of going to court if they can possibly avoid it but are simply harassing people who want to bring economic crimes into the light. The Minister has given us a hint that there is a government Bill in draft here. I am taking that in good faith; I hope that faith will be well placed and that we will see it soon.
Lord Bellamy (Con)
Again, I thank the noble Lord for his remarks. The key problem is to distinguish access to justice from harassment. It is quite difficult, but it can be done. That is my answer to that question. On where the Government are, as I said before, we are working on drafts, but I cannot go any further than that until I know whether there is a legislative vehicle and which it can be. I am sorry not to be able to commit the Government at the Dispatch Box today any further than that but, as I said, I am hoping—and I can only express as a hope—that this is a short-grass and not a long-grass issue.
Baroness Bennett of Manor Castle (GP)
My Lords, I apologise to the Committee, I perhaps should have declared my position as co-chair of the All-Party Parliamentary Group on Hong Kong in my last intervention.
Lord Thomas of Gresford (LD)
My Lords, I am grateful to Minister for his response and look forward to discussing these issues with him. I am grateful to all noble Lords who have spoken, and in particular to the noble Baroness, Lady Stowell. I commend her and her committee for the work they have done in investigation and taking evidence on this issue. I admire the guts and determination of the noble Lord, Lord Cromwell, and the fury of the noble Lord, Lord Agnew, on this issue.
I do not want to speak for too long: we have had a very long debate. The only dissenting voice was that of the noble and learned Lord, Lord Garnier. Your Lordships may recall that I said that, when the results of the consultation were looked at, the claimants’ lawyers were saying, “There’s nothing to see here, guv. It’s all the ordinary rough and tumble of litigation in this country”. The noble and learned Lord, Lord Garnier, referred to his experiences in the bear garden. I remember the bear gardens—I remember appearing in a bear garden for the leader of the Opposition in the Singapore Parliament; it was not an easy position. He was suing the Straits Times for libel, and the application to strike out was made on the grounds that he had no reputation in this country. When he died, some years later, he had obituaries in the Times, the Telegraph and the Guardian.
I know the games that these media lawyers play. They do not face up to some of the realities that we in the criminal courts perhaps have to face from time to time. But I have the highest regard for the noble and learned Lord, Lord Garnier, in his professional capacity, so nothing that I say should be taken as derogatory to him—otherwise, subject to professional privilege, I might find myself in court.
Lord Bellamy (Con)
Just to clarify, as I said, the Government’s position is that it is not appropriate to introduce a criminal offence in relation to access to justice. It is not a question of just having another offence. Access to justice is a very important area, and we are on a slippery and possibly Orwellian slope if we start saying that it is criminal for someone to go to the law on some point. It is a very difficult area—that was all I said.
Lord Thomas of Gresford (LD)
So, according to the Minister, it is not criminal for a person to threaten litigation, with all the expense and worry that that involves and the way that it crimps the investigation of crime. He is saying that it is not unlawful and should not be criminal. There are criminal offences that cover conduct far less morally bankrupt than that, which is what I hope we shall discuss with the Minister before Report. For the moment, I beg leave to withdraw my amendment.
Lord Etherton
“(a) constitutes the offences of fraud, false accounting, money laundering or offences under any binding sanctions regime, whether at common law or in primary or secondary legislation,”Member’s explanatory statement
This amendment provides for a shorter and more focused definition of “economic crime” than is presently to be found in Clause 180(1)(a) and Schedule 9.
Lord Etherton (CB)
I preface my remarks by emphasising that what I say about this amendment and the other amendments in this group is not intended in any way to qualify or undermine the broad objectives of the legislation. They are intended to make the legislation better.
I will focus for the moment on Amendment 81, which addresses the definition of economic crime to be found in Clause 180. The amendment has the support of the Law Society and the Bar Council. In the current wording of the Bill, the definition relates to only three matters. The first is the disclosure obligations under Clauses 175 to 178; the second is that by virtue of Clause 181(2C) it applies to the Law Society’s powers to impose a fine in cases relating to economic crime; the third circumstance is that it applies to the new legal services regulatory objective in Clause 183 of promoting the prevention and detection of economic crime.
Under the current definition in Clause 180, economic crime is defined by reference to a long list of offences, common law and statutory, extending over two and a half pages in Schedule 9. The definition of economic crime would be further extended under the Government’s proposal to add a new Schedule 10, which is directed to the failure to prevent fraud. As we heard in the last debate, although I think it is right to say that none of the amendments relating to SLAPPs is tied to any definition of economic crime in the existing Bill, SLAPPs would have to be in some way connected to some definition, and that may be wider than one would otherwise contemplate economic crime to comprise.
The definition of economic crime in Clause 180, by reference to Schedule 9, and its extended meaning by reference to the proposed Schedule 10, raises the fundamental question of what this Bill is actually about. Under Schedule 9, for example, it includes theft, and under the proposed Schedule 10 it includes false statements by company directors.
The Government’s intention, however, as I understood it, is that the Bill is directed to a specific type of criminal activity—fraud, false accounting, money laundering and the breaches of sanctions. Those are the activities which Amendment 81 sets out. Those elements were identified in a meeting which I had with Dame Margaret Hodge, who has played a significant role in the promotion of this type of legislation. Those activities—fraud, false accounting, money laundering and the breach of sanctions—chime with the Bill’s three key objectives, mentioned at the very beginning of the Explanatory Notes, which are focused on the abuse of corporate structures. That is what the Bill is about: the abuse of corporate structures to launder money, hide assets obtained unlawfully and prevent restitution of such assets by making them irrecoverable. To include theft under Schedule 9 goes far outside that type of activity, as it would embrace, for example, a straightforward theft of any object in any circumstances, which has no economic significance other than the loss of value to the owner of the object.
Further, Section 19 of the Theft Act 1968, mentioned in Schedule 10, as I have said, makes it an offence for any officer of a company or unincorporated association knowingly to make a false or deceptive written account with intent to deceive members or creditors. This is a very broad offence, and again not necessarily related to the objectives of the Bill, as they are explained in the Explanatory Notes, and as I understand them to be. I suggest, therefore, that the Government should focus on the real objective of the Bill and define economic crime accordingly and consistently, rather than by reference to a long list of common-law and statutory offences, which are diffuse and wide-ranging.
That brings me to my next point, which concerns good legislation and proper drafting. To define economic crime by reference to a wide range of offences over two and a half pages is not good drafting.
It complicates rather than simplifies the law. It also gives rise to potential difficulties if any legislation mentioned is repealed and re-enacted in the same or a different way. Of course, in these circumstances there is provision by way of regulation for the Secretary of State to add to or detract from Schedule 9, but there has to be an alteration. By defining the constituent elements of economic crime, as is done in Amendment 81, there is a clear steer as to the objectives of the Bill, and any change in legislative offences will not require an alteration to the Bill. Schedule 9 and proposed Schedule 10 would cease to be relevant. Amendments 82, 83 and 84 are all consequential on Amendment 81.
I now move to the next substantive amendment to Clause 183, which introduces a new regulatory objective into the Legal Services Act. Amendment 90 is signed by my noble friends Lord Verdirame and Lord Pannick and the noble and learned Lord, Lord Goldsmith. Unfortunately, none of them is able to be here today. I am very grateful to them for their support. This amendment also has the support of the Law Society and the Bar Council. Currently, the provisions in Clause 183 relating to the new regulatory objective are far too wide in the following respects. First, it is not confined to the conduct of the lawyer but is expressed as general enforcement of the law relating to economic crime. It turns the regulator of legal services into a general enforcer of the law. Secondly, Clause 183 is not confined to legal activity as defined by Section 10 of the Legal Services Act 2007. In broad terms, legal activity is defined in the 2007 Act to mean the conduct of litigation, advocacy and legal advice and assistance.
Thirdly, the clause does not focus on what is critical, namely the misconduct of the lawyer in this context, which is facilitation or collusion by that lawyer in economic crime. Facilitation or collusion by lawyers in economic crime are the principal areas of misconduct in relation to lawyers mentioned to me in my meeting with Dame Margaret Hodge. Fourthly, it does not make clear that the proposed legislation on economic crime does not trump legal professional privilege where that applies or to the “professional principles”, which will remain one of the regulatory objectives under Section 1 of the 2007 Act.
Just addressing this last point, in any legal proceedings legal professional privilege precludes the usual obligation to disclose and permit the inspection of all relevant documents. The privilege, which is the privilege of the client, not their lawyer, is a fundamental common-law constitutional right on which the proper administration of justice rests. There are two aspects to the right—first, legal advice privilege, which applies to communications made confidentially for the purpose of seeking or giving legal advice, whether or not litigation is contemplated or pending and, secondly, litigation privilege, which applies to communications which come into existence for the purpose of litigation.
Lord Thomas of Cwmgiedd (CB)
In supporting what the noble and learned Lord has said, I underline the importance of legal professional privilege; I recall it in many cases but one in particular, where a judge remarked that the worst thing he had ever done was to open up this subject in a particular case. We deal with this at our peril.
Lord Fox (LD)
My Lords, it is with more than a little trepidation that I will speak on this group of amendments, with two noble and learned Lords sat behind me. In his opening observations, the noble and learned Lord, Lord Etherton, got the SLAPPs argument a bit back to front. My noble friend Lord Thomas worded the SLAPPs amendment in the way that he did so as not to include the non-economic crime aspects of SLAPPs. That was exactly to avoid the issue that I think the noble and learned Lord highlighted in saying that SLAPPs would drag other criminal definitions into the Bill. My noble friend’s careful wording was designed specifically to avoid that, but no matter.
More generally, there is a functionality in Schedule 9 which, if taken away, we will lose: the ability to put offences in and take them out using regulation. That is included in Clause 83 on page 165. If the noble and learned Lord is successful in his campaign, he needs to consider putting that back in, because in future we do not want to have to use primary legislation to achieve that objective. That is something to look at.
On the final amendment to Clause 183, Amendment 90 —with the names of the four riders of the apocalypse on it—again I take the noble and learned Lords’ points about client privilege. I have one question for the noble and learned Lord, Lord Etherton. If a solicitor is taken on and starts through their client privilege to find things that they do not like, I assume that they would be encouraged to walk away from that client. Not having been in that situation, I would like to understand what the professional advice is. Do they carry on and sit behind privilege or is a solicitor essentially encouraged to walk away from a client when they begin to uncover things through that privilege that they find to be illegal or immoral?
There is another debate to be had at the beginning of the next sitting, where we talk about failure to prevent. It is quite clear that the point raised here cuts into the failure to prevent debate. I encourage both noble and learned Lords to be present for that because their point here is absolutely relevant to the failure to prevent debate, and we have to have those two debates almost together. I hope that they will be able to make time on Thursday to join in that debate.
Baroness Blake of Leeds (Lab)
I do not have an enormous amount to add but I thank the noble and learned Lord, Lord Etherton, for his comments and for the full explanation of the amendments before us in this group.
I will add a concern about the removal of the schedule naming the offences. Perhaps we will need to have a better understanding of why that would be an advantage, but I remain to be convinced on that point. On Amendment 90, I do not have much to add to the comments made by the noble Lord, Lord Fox, which lead to a need for greater clarification before we can move on from this.
Lord Bellamy (Con)
Once again, I am grateful to noble Lords who have spoken in the debate. I will first take Amendments 81 to 84, tabled by the noble and learned Lord, Lord Etherton.
Whereas our lengthy debate earlier in the day was directed at expanding the Bill, this is directed at narrowing it. It may not be a total surprise if I say that the Government are not very happy about proposals to narrow the scope of the Bill. As was said, these amendments arise, apparently, with the support of the Law Society and the Bar Council. The Government met the Law Society and the Bar Council on a number of occasions and the question of the definition of economic crime was gone into in some detail, and one is a little surprised to see that this matter is being persisted in.
The list of the offences in Schedule 9 is very close to the list of offences in the Crime and Courts Act 2013, which applies to deferred prosecutions in various cases, which are often relevant in financial matters, and, although not exactly the same, they are based on that definition.
The other introductory comment that I would, if I may, make is that, while the overwhelming bulk of the legal profession upholds the highest standards, much of this Bill would have been unnecessary were that true of all legal professionals. It is against that background that the Government are reluctant to run the risk of introducing loopholes into the Bill by reducing the scope of Schedule 9.
The first point to note is that the definition of economic crime in Clause 180 and Schedule 9 applies right across the Bill and includes the information-sharing measures in Clauses 175 and 176. Those measures, for example, entitle bank A, when it receives from bank B a large sum of money, to ask bank B whether it is a proper transaction, so there is information-sharing between financial institutions. Clause 176 enables a financial institution to notify a platform, for example, that it has concerns about particular transactions or clients. These are pretty essential powers in the Bill, and the definition of economic crime applies to those powers as well. In the Government’s view, it would not be desirable to have two definitions of economic crime across the Bill as a whole.
The definition applies to other legal services measures in Part 5 of the Bill, which amend the Solicitors Regulation Authority fining limit and information provisions. So for consistency and ease of understanding, the Government’s position is that it is sensible to have a single definition of economic crime through the Bill, and not reduce that definition at this stage. Just to make an illustration, there was some suggestion that introducing the word “theft” would go a bit too far. It may in a certain situation be quite difficult to say whether something was fraud or theft—it might well be both—but it is not the sort of argument that the Government feel that one should get into. Having worked with the Law Society of England and Wales and the Bar Council on these matters, the Government have clarified in the Explanatory Notes which offences are likely to be most relevant to the financial sector. They have not excluded them, but they have indicated that fraud, money laundering, terrorist financing, bribery, and any offences under regulations made in relation to money laundering are likely to be the ones that the profession should concern itself with most in practice. But it is important that regulators should not be unduly constrained in the ambit of the definition of economic crime in this Bill.
I can reassure noble Lords that all the existing safeguards that apply to regulators under public law principles, including what is proportionate and fair, continue to apply. Section 3 of the Legal Services Act provides that the Legal Services Board must have regard to the principles of transparency, accountability, proportionate action and consistency and target only those cases where action is required. The new objective in relation to economic crime fits within that framework. One is to an extent tilting at windmills here to try to reduce the scope of this major piece of legislation designed to tackle the very serious problems that noble Lords have now debated at length. On that basis, I shall ask the noble Lord in due course to withdraw his Amendment 81 and not press his other amendments.
I turn to Amendment 90, which affects the regulatory objective. The essential aspect of the amendment is that the objective is too wide and that we should spell out that it is all subject to legal professional privilege. Those are the essential points that were made.
I will take the point about legal professional privilege first. The Government entirely accept and agree with the noble and learned Lord that legal professional privilege is a fundamental principle of English law. It protects the confidentiality of communication between a lawyer and client in terms of legal advice, and ensures complete fairness in legal proceedings in terms of litigation privilege, for example. However, the Government are not able to accept the amendment for the following reasons.
Lord Etherton (CB)
Perhaps I should first take the opportunity to answer the question of the noble Lord, Lord Fox. I think the answer is that if somebody goes to a solicitor for advice on a potential course of action, it may be clear that it is unlawful, in which case legal professional principles would require the solicitor not to act for that client in relation to that. But there may be gradations of arguability about whether it is lawful or not; I gave the example of things going up and down, and he would be perfectly entitled to advise on those degrees of legality and prospects of success in litigation. My point was simply that that should not render the solicitor in any way concerned about committing any breach of a regulatory duty. That is the way it would work, and it would be the same for a barrister.
Turning to the Minister’s comments, I am afraid he has not really addressed the point that I made, which is that, in paragraph 2, the Explanatory Notes say that the Bill has three key objectives. That is the Government’s definition of what it is about:
“a. Prevent organised criminals, fraudsters, kleptocrats and terrorists from using companies and other corporate entities to abuse the UK’s open economy. This Bill will reform the powers of the Registrar of Companies and the legal framework for limited partnerships in order to safeguard businesses”.
Then it deals with strengthening
“the UK’s broader response to economic crime”
by seizure of crypto assets and so on. The extension of the definition of economic crime to matters such as I mentioned, for example representations of directors or theft, is way outside that. It is nothing to do with London as the place where people launder money, for example, and I do not accept that there may be some difficulty in distinguishing fraud and theft. A fraud may involve a theft, but fraud is quite clear as to what it is.
Amendment 81 is not an attempt to narrow the definition, except in relation to what I understand to be the essential elements: fraud, false accounting, money laundering and offences under any binding sanctions regime. If it is something more than that, then that ought to appear in the Explanatory Notes or be clearly stated by the Minister at the Dispatch Box. It should be made clear. You could combine a statement such as that—the broad objectives—together with various bits of legislation, but actually the advantage of expressing it in these generic ways is that it would make it far simpler and easier to understand, and would not require changes to the Act when there are legislative changes, with regard to the various offences currently listed in Schedule 9.
Having said that, I have made perfectly clear what the primary objections are to the new regulatory offence, which does not concentrate on the actual personal collusion or facilitation by the solicitor but could cover, for example, information that the solicitor receives in the course of advice from the client about some third party—because it is that wide, I say it would be an abuse of the legal regulation to leave it in that way rather than confine it to a personal involvement.
But I have made those points. I have listened to the Minister and certainly, so far as today is concerned, I beg leave to withdraw the amendments.
Personal Statement
Baroness Cox (CB)
My Lords, with the leave of the House, I wish to make a personal statement. It is with very many regrets that I must apologise to the House. The Commissioner for Standards has recently concluded that, by failing to register my unpaid role as director of Equal and Free Limited and the staff support that I receive from that organisation, I was in breach of paragraphs 12 and 15 of the Code of Conduct; and that, by failing to declare my directorship of Equal and Free Limited when participating in relevant proceedings, I was also in breach of paragraph 17 of the Code of Conduct.
As soon as I became aware of these oversights, I took steps to rectify them by telephoning the office of the Registrar of Lords’ Interests and ensuring that the register was updated. Nevertheless, I deeply regret having breached the code and offer the House my sincere apology.
Long Covid
(1 year ago)
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The Earl of Clancarty
To ask His Majesty’s Government what steps they will take to support those suffering from long Covid.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
We are committed to supporting people experiencing long-term effects of Covid-19. We have invested £314 million in long Covid care, establishing 90 specialised services for adults and 14 services for children and young people across England. These direct people with long Covid conditions into care pathways that provide appropriate support, treatment and rehabilitation. Furthermore, we have invested £50 million in research to better understand long Covid and how to treat it.
The Earl of Clancarty (CB)
My Lords, with ONS data now showing more than 2 million people affected by long Covid, is it not high time that this condition was properly addressed in the workplace, as asked for by Long Covid Support and the TUC? Will the Government specify long Covid as a disability under the Equality Act 2010, as other conditions have been? Will they recognise long Covid as an occupational disease for all front-line workers? This is surely the least we can do for those who risked their lives to protect ours and those who continue to work in an unsafe environment.
Lord Markham (Con)
I thank the noble Earl for his question and for raising this subject generally; it is of key importance to all of us. In the area of long Covid, we are still learning. The reality is that there are a lot of situations where, thankfully, long Covid might end after 12, 14 or 16 weeks. For those reasons, it is not appropriate to define it as a long-term disability in legislative terms at this stage. At the same time, clearly, if people are suffering from conditions that mean they are unable to work for a length of time, they are absolutely able to get personal independence payments and the other payments that are due to them.
Lord Hunt of Kings Heath (Lab)
My Lords, the Minister will be aware that there is real concern about the rising number of inactive people of working age, due mainly to long-term sickness. I accept what he said about the time limits, but to what extent is he concerned that our failure to tackle long Covid appropriately will add to that labour market inactivity?
Lord Markham (Con)
I take issue with the statement of failure to deal with it. We pioneered this space. We set up 90 specialist adult centres and 14 specialist centres for kids. We have invested £314 million and 80% of people are seen within eight weeks of being referred. That shows that we are taking this seriously. The noble Lord is absolutely right that we want to ensure that we get as many people into work as possible. In the case of long Covid, we are definitely doing that.
Baroness Bull (CB)
My Lords, the Minister will know that evidence shows that the risk of long Covid increases with each subsequent reinfection, and that most adults were last vaccinated in the autumn, which means that their immunity is waning and that they are vulnerable to new infection. For many, this will be their second or even third case of Covid. Given that the living with Covid strategy is to manage Covid like other respiratory illnesses, what consideration have the Government given to adopting a similar vaccination strategy as they do for flu, in that those not eligible for free vaccinations could be offered the option to buy a vaccination? Have the Government made any assessment of the impact that such a strategy would have on the number of reinfections and therefore the rates of people suffering with long Covid?
Lord Markham (Con)
I thank the noble Baroness. I think we all accept that this is a complex area where, naturally, we are being guided by the science. Our vaccination strategy has been focused on the highest-risk groups. On allowing other people to pay over and above, as with flu, I think it is best that I come back in correspondence.
Lord Borwick (Con)
My Lords, in the statistics for long Covid, are any particular professions overrepresented among sufferers?
Lord Markham (Con)
I thank my noble friend. We do not capture statistics in that way—I had a chance to ask the department quickly a few minutes ago—but I will inquire to see whether we can find out more on that. Obviously, some occupations, such as working in the health service, lend themselves more to it, because you are more likely to catch Covid, which is why how we look after our own staff is of paramount importance. On the wider point, I will come back to my noble friend.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely.
Baroness Brinton (LD) [V]
My Lords, 2 million people currently reporting symptoms of long Covid is a shocking 3.1% of the population, with over a million people having had it for at least one year. There are some very successful models for assessment and treatment, but some clinics still assume that long Covid is like ME/chronic fatigue and do not investigate for microclots and heart and lung problems. Why is there not a gold standard for assessments and treatment of long Covid in England as there is in a number of other countries, including Scotland?
Lord Markham (Con)
I thank the noble Baroness. My understanding is that the 90 specialist adult centres and 14 specialist children’s centres have care pathways which they are supposed to adhere to. Therefore, I hope that the instances which the noble Baroness brings up are the exception, but I am happy to investigate because I think we all agree that a consistent care pathway is vital in this space.
Baroness Merron (Lab)
My Lords, despite the provisions that the Minister has outlined, the reality is that just a fraction of the people who have long Covid are seen and supported. What steps are being taken to ensure that GPs recognise long Covid in those who do not self-label as having the condition, and how will the Minister respond to the data that shows inadequate access to specialised health services?
Lord Markham (Con)
As I say, the data that I have been working with indicate that 80% are seen within eight weeks, which I think most noble Lords would agree is a pretty good statistic. My understanding is that GPs are fully briefed on referrals and disability types. It is clearly important that people who are suffering in the long term make sure that they get treatment.
The Lord Bishop of London
My Lords, the advice of the DWP and DHSC is that, if those impacted by long Covid are unable to work, they will be able to access financial assistance through schemes such as PIP. However, in practice, as the noble Baroness said, there is a lack of recognition of long Covid among GPs and PIP assessors. What steps are the Government taking to make sure that more long Covid sufferers are identified and able to access financial support?
Lord Markham (Con)
They are absolutely part of the prescribed path. I know from my DWP colleagues that it is part of the training that those people should be supported with personal independence payments. As of January, more than 4,000 people were being treated and receiving payments in this way. It is fundamental that they get access to those payments going forward.
Lord Patel (CB)
My Lords, two things are important in the long-term management of patients with long Covid. The first is epidemiological studies, and I am glad that the Government are backing with £50 million the NIHR to do such studies. The second is finding cures. Interestingly, the molecular studies carried out by Oxford show that there might be mitochondrial dysfunction, which leads to a loss of energy production and therefore fatigue. A drug that has entered its phase 2 trial sounds promising, so we must also support molecular science to find a cure for this condition.
Lord Markham (Con)
I thank the noble Lord and applaud the research work that has been done. As I said, we have invested £50 million on top of the £118 million for Covid research. Just as we were one of the front-runners in developing the Covid vaccine, with AstraZeneca, it is very much our ambition to be a front-runner in developing cures for long Covid.
Lord Dobbs (Con)
It is this side. Thank you for giving way; I appreciate it. So far, 223,738 people have died from Covid and it has cost this country between £310 billion and £410 billion. Last month, in a Written Question, I asked the Government what they thought were the origins of Covid. The Answer that came back, which was not a reply at all, was that they fully supported the World Health Organization’s study into its origins. But that is an organisation that once speculated that Covid might have come into China on a package of frozen food. The World Health Organization has achieved very little since, and Nature magazine has just revealed that it has “quietly shelved” its second scientific investigation into Covid’s origins. Why do the Government appear so uninterested in the origins of a disease that has cost us so much? Why did it happen, where is it going and how are we going to prevent a second epidemic causing the same sort of chaos that came from Covid?
Lord Markham (Con)
We are interested, and the Covid inquiry is all about finding out the origins and learning the lessons. I, among others, am very keen to hear that.
If I am allowed to, I am happy to take the question that was not allowed in. Okay, I am not—I tried.
Apprenticeship Levy
(1 year ago)
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Lord McNicol of West Kilbride
To ask His Majesty’s Government what assessment they have made of the sectoral disbursement of the take-up of the Apprenticeship Levy.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, employers are at the heart of our apprenticeship system. They have developed more than 660 standards across a range of occupations, and they choose which apprenticeships they offer and when. The health and care, business administration and law sector subject areas were each around a quarter of starts last year, benefiting employers operating across all sectors of the economy. We have also seen recent growth in the digital and construction sector subject areas. The apprenticeship levy will enable us to increase funding to £2.7 billion by 2024 to support employers in all sectors to invest in apprenticeships.
Lord McNicol of West Kilbride (Lab)
I thank the Minister for her Answer. As one of the few in your Lordships’ House who attained not a degree but a technical qualification—I am immensely proud of my HND—I understand the need for technical education. The apprenticeship levy is seen by many employers, especially those unable to recoup their contributions, as a training tax. This is due to the current scheme’s inflexible, rigid and bureaucratic nature. Does the Minister recognise the need to redress these problems? If so, are there any plans to extend the sectoral remit, the timescale of study and draw-down and the level of application, and thus help improve the apprenticeship schemes?
Baroness Barran (Con)
I think the noble Lord would agree that this country needs to invest more in the skills of the workforce, both those entering the workforce and those currently in it. The last thing we need to do is cut back on the amount of funding going into apprenticeships. I remind the House that of the £2.5 billion last year, there was an £11 million underspend, so it was fully disbursed. We do offer employers flexibility; we are spending £550 million on skills boot camps for the kind of short courses to which the noble Lord alludes, as well as working in particular with the creative industries to offer flexible apprenticeships.
Lord Aberdare (CB)
My Lords, what assessment have the Government made of the results of initiatives to increase and broaden the take-up of apprenticeships, such as flexible apprenticeships, making it easier for small businesses to host apprentices, and levy transfer schemes, enabling larger employers to transfer unused levy to businesses in their supply chains? Given the seemingly limited impact of these schemes to date, what plans does the Minister have to increase the flexibility of the levy so that more businesses in more sectors, and especially SMEs, are able to make use of it?
Baroness Barran (Con)
I do not completely accept the suggestion that the noble Lord makes; 41% of all apprenticeship starts were in SMEs in 2020-21, up from 38% in 2019-20. We have a lot of initiatives. For example, we have lifted the cap on the number of apprentices a small business can take on. In the area of the creative industries, which I alluded to, we are expecting 1,500 apprenticeship starts through the flexible apprenticeship scheme.
Lord Storey (LD)
My Lords, I thank the Minister’s department for always giving fulsome Written Answers. From Written Questions we can see that the number of young people not in education or training is largely static, although this year it is estimated to be 1,857,000. The worrying trend, however, is that the number of 19 year-olds is going down year on year and is at 22.4%. The Minister talked about skills, and the other worrying trend is that the number of those people doing intermediate apprenticeships is at its lowest level ever at 22.4%, while higher apprenticeships and advanced apprenticeships are at their highest level. This goes against the whole basis of why the apprenticeship scheme was set up by the coalition Government.
Baroness Barran (Con)
The apprenticeship scheme has two important objectives. One, as the noble Lord touched on, is to give young people a choice of opportunities as they enter their career—training, work experience and so forth. The other is to give our employers the skills they need in their workforce. The scheme is currently balancing those two things.
Lord Trefgarne (Con)
My Lords, as a former chairman of the Engineering Training Authority I am clearly very conscious of the work in that particular sector. What is the position today? Is a sufficient number of young people coming forward for apprenticeships in the engineering sector?
Baroness Barran (Con)
Engineering and manufacturing technologies account for about 14% of all the apprenticeship starts. Last year that was about 49,000 apprentices.
Baroness McIntosh of Hudnall (Lab)
My Lords, the Minister mentioned the creative industries in a number of her earlier answers. I believe she said most recently that 1,500 starts are expected within those industries. Can she tell the House—and if not, can she please write on the matter—how many of those 1,500 are being undertaken in small and medium-sized enterprises within the creative industries?
Baroness Barran (Con)
Given that the creative industries are full of small and medium-sized enterprises, I assume that it is the vast majority. If it is different from that, I will write to the noble Baroness.
Lord Clarke of Nottingham (Con)
My Lords, in recent years a practice has sprung up in British industry of not training staff but recruiting them directly, already trained, from overseas, often from countries that could benefit from having their own trained staff stay at home. This leads to the shortages of skilled staff that we have in the economy and surges in immigration through work visas, which we find difficult to accommodate with housing and adequate social services. Can the Minister confirm that the Government will not waver in their application of the apprenticeship levy, which is making an important difference in stimulating firms to start training their own staff in the way that they used to? Will the Government also take steps to stop the abuse of the levy when it sometimes gets employed for management training for long-serving senior managers, who would be trained by the company anyway in the ordinary course of events?
Baroness Barran (Con)
I am happy to reassure my noble friend that we have no plans to do away with the levy. Indeed, as I said, based on the OBR forecast we expect it to increase to £2.7 billion in 2024-25. The levy is part of a wider strategy to offer more flexible opportunities, such as modular learning and the lifelong loan entitlement, to potential employees and address the skills gaps of employers more effectively.
Baroness Twycross (Lab)
My Lords, the chief executive of the CIPD has said that the apprenticeship levy
“has failed … Without reform it will act as a handbrake on employer investment in skills”.
Given reports that more than £2 billion of the levy money has been clawed back by the Treasury rather than being spent on apprenticeships, is it still genuinely the Government’s view that the levy as it stands is fit for purpose?
Baroness Barran (Con)
It is the Government’s view. Again, if we look at the trend in the use of the levy, we have seen an increase in adoption and use of the levy by employers, both levy-paying employers and much smaller enterprises. We are committed to offering all sorts of flexible and shorter courses, and to funding those to meet key skills gaps. We think this is a critical part of our strategy.
Baroness Blackwood of North Oxford (Con)
My Lords, I was pleased to see that, among other measures, the Apprenticeship Diversity Champions Network has been set up to provide practical advice on how to attract more women into STEM roles in industries that have historically been dominated by men. The first quarter of 2022-23 saw 13% more women start STEM apprenticeships. Can the Minister say what other measures will be taken to build on this progress?
Baroness Barran (Con)
Obviously there are a number of different initiatives, both within schools, particularly in relation to girls and young women to increase their awareness of and aspiration to become involved in the STEM sector, and, in turn, working with employers and holding them to account in terms of how and where they recruit.
Nuptial Agreements
(1 year ago)
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Baroness Shackleton of Belgravia
To ask His Majesty’s Government what plans they have to introduce the draft Nuptial Agreements Bill, as drafted and recommended by the Law Commission in its Matrimonial Property, Needs and Agreements report, published on 26 February 2014 (HC 1089).
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, it was announced on 4 April that the Law Commission will be conducting a review of the law on financial provision on divorce. While this review is taking place, the Government do not consider it the right time to legislate in respect of nuptial agreements. The Government favour a holistic rather than a piecemeal approach to any future legislative reform in this area.
Baroness Shackleton of Belgravia (Con)
My Lords, I am disappointed but not surprised by that response. I declare my interest as practising in this field. It is well known that this is stand-alone legislation which came about as a consequence of a House of Lords decision in Radmacher in 2010. During the coalition, the Law Commission set up a paper and, as a consequence, in 2014 there was a response which is oven-ready for putting on the statute book.
Instead of that happening, with almost indecent haste and despite the warnings, the no-fault divorce law has proceeded through these Houses. We have more people with pre-nuptial agreements and more people getting divorced, and there is no direction for the judges as to how the law has changed as a consequence of these agreements being enforceable. Please can the Minister explain why it is acceptable to delay this legislation, which would be quite simple to push through, in circumstances where the courts are over-burdened, the judges have no direction and lawyers practising in this field have lucrative groundhog days ahead?
Lord Bellamy (Con)
My Lords, I thank my noble friend Lady Shackleton for her question. The answer is twofold: first, the Government consider that the present root-and-branch review of financial provision is better than looking at a particular outcrop within that landscape. Secondly, any Government have to prioritise. In recent years, priority has been given, for example, to the Domestic Abuse Act 2021; the Divorce, Dissolution and Separation Act 2022, which introduced no-fault divorce; and the Marriage and Civil Partnership (Minimum Age) Act 2022, which made it illegal to marry under the age of 18. These are all fundamental reforms and I make no apology for prioritising those measures.
Baroness Deech (CB)
My Lords, may I start by wishing the Minister a happy birthday—and ask him whether there is any prospect of this Bill being enacted in his lifetime and mine? He has mentioned all these other statutes, which are not really relevant. The failure to enact this Bill undermines the no-fault divorce law, because the failure to have binding nuptial agreements leaves couples in as antagonistic and expensive a situation as before. Will he please get on with it?
Lord Bellamy (Con)
My Lords, I thank the noble Baroness for those birthday wishes. It is often said that life begins at 40 but experience shows that it is very much later than that. I very much hope that we will be able to legislate in her lifetime, if not my own. Prenups are undoubtedly an important issue. Since 2010, the law has been that there is a presumption in favour of enforcing prenuptial agreements unless it is unfair to do so. Secondly, although this is an important question, it affects a relatively small and privileged cohort, and it must take its place in the queue on that basis.
Lord Thomas of Gresford (LD)
The Minister refers to a small cohort. Has he any idea how many nuptial agreements exist as a percentage of those people who get married these days?
Lord Bellamy (Con)
My Lords, I do not have that information. I will see if I can find it and if I can, I will write to the noble Lord.
Lord Watts (Lab)
My Lords, this is a sensible move. It would make sense to introduce this legislation now, provided that it does not affect the overall review that is taking place. Why does the Minister not just act on this one piece of legislation now?
Lord Bellamy (Con)
My Lords, it is hard for me to add to my previous answer. The Government feel that we must look at the whole landscape and get the law on financial provision sorted out, and that gives us the context in which we can decide what to do about prenups.
Lord Sandhurst (Con)
My Lords, as others have said today, such a Bill can stand completely independently of the planned reform. The whole point is that those who embark on this do not want to litigate, in the unhappy event of a divorce, and do not want to expose themselves to all the uncertainties of the court’s discretion. Why on earth can the Government not do something about it now?
Lord Bellamy (Con)
My Lords, it is not a straight- forward issue; even the Law Commission’s report of 2014 made it clear that there had to be quite a number of exceptions in relation to financial need before one could legislate. As I say, the Government prefer to proceed on a broad front rather than deal with this issue specifically.
Lord St John of Bletso (CB)
My Lords, I have practised as a divorce lawyer in South Africa, where the prenuptial agreement is respected, and it should not be seen purely as a protection for high net worth individuals. Why is there so much resistance to respecting and introducing a prenuptial agreement?
Lord Bellamy (Con)
My Lords, the Government have confidence in the courts to apply the general law, which is that prenups should in general be respected unless it is unfair to do so. That is not far off what the Law Commission recommended in 2014.
Lord Ponsonby of Shulbrede (Lab)
My Lords, most couples going through a divorce do not have their financial arrangements made by judge. Some reach settlement with the assistance of lawyers, others through mediation and arbitration. Of course, many do not have access to lawyers because of the withdrawal of legal aid. When the holistic review looks at financial provision for divorce, will that include the increase in legal aid for divorcing couples?
Lord Bellamy (Con)
I think the answer to that question, for which I thank the noble Lord, Lord Ponsonby, is that this is not directly within the Law Commission’s terms of reference, but it is well within the review of civil legal aid upon which the Government are currently embarking.
Baroness Butler-Sloss (CB)
When are the Government going to get on with financial relief and produce some legislation?
Lord Bellamy (Con)
When the Law Commission’s report is available.
Lord Wallace of Saltaire (LD)
My Lords, it was very reassuring to hear the Minister say that we need to consider legislation very carefully before it is introduced and see how it fits in with other Acts and so on. Can he assure us that similar procedures have been applied to some of the legislation currently before the House with which we are struggling?
Lord Bellamy (Con)
The Government always do their best to ensure that the legislation is comprehensive and consistent.
Housing: Overcrowding
(1 year ago)
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Baroness Warwick of Undercliffe
To ask His Majesty’s Government what assessment they have made of the National Housing Federation’s report, Overcrowding in England, published on 19 April; and, in particular, its finding that one in six children lives in ‘overcrowded conditions’.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)
The Government are committed to reducing overcrowding by increasing the supply of affordable housing and enabling councils and other social landlords to make better use of their existing homes. We are also consulting on changes to the NPPF to make clear that local authorities should give greater importance to social housing in planning decisions. The current legislative framework maintains that statutory reasonable preference requirements must ensure that social housing is prioritised for those who need it most, including for those in overcrowded housing.
Baroness Warwick of Undercliffe (Lab)
I thank the Minister for that reply but does she accept that the National Housing Federation’s research has exposed the dire levels of the housing crisis in England? Some 2 million children are forced to live in cramped and overcrowded conditions, with no personal space—that is one in six children. Households from ethnic-minority backgrounds are three times more likely to be affected by overcrowding. There is a general recognition that the leading cause of overcrowding in England is the chronic shortage of social housing, as the Minister has I think acknowledged. Funding for social rent remains at an all-time low. The lack of any funding for regeneration has made investment in existing homes nigh impossible. Does the Minister agree with the National Housing Federation that a long-term, national plan is required to drive up the number of appropriate, affordable homes across England for families right round the country?
Baroness Scott of Bybrook (Con)
Obviously the Government are concerned about overcrowded houses around the country and the report that came out, but I can tell noble Lords what the Government are doing. Now, as we sit here, we have an affordable housing fund of £11.5 billion, and we are putting more priority on using that fund for houses for social rent. The £500 million local authority housing fund is also going out now, to build houses in the next two years where local authorities are under extreme pressure for social housing. As I say, for the future, we are changing the NPPF to ensure that social housing takes a higher priority when local planning authorities are looking at their local plans and prioritising houses for social rent.
Lord Naseby (Con)
Is it not a fact that, over the last five years, there has been a steady decline in social housing? Against that background, will my noble friend look again at this issue and put some drive behind new towns, new cities and new garden cities? Those organisations have relieved a great deal of overcrowding in our cities throughout the United Kingdom and have provided decent housing for families to live in, for the future.
Baroness Scott of Bybrook (Con)
This is a subject that my noble friend brings up quite often. As I have said, we will continue to look at every solution to the problem of more houses in this country.
Baroness Thornhill (LD)
My Lords, for me, the key issue is the lack of suitable homes for people to upsize to at a rent that they can afford. Will the Government please reconsider unfreezing the local housing allowance to help some families, especially those in the private sector, to upsize and get out of those conditions?
Baroness Scott of Bybrook (Con)
We have no plans to do so at the moment but I will keep the noble Baroness and the House aware of any that we might have in the future.
Baroness Taylor of Stevenage (Lab)
My Lords, I am grateful to the National Housing Federation for its excellent report highlighting this crucial issue, and to my noble friend Lady Warwick for her tireless work on housing. The level of overcrowding highlighted by the NHF is one of the strongest indicators of the woeful state of housing in this country and the shameful record of this Government, with only 6,000 social homes built last year and 2 million families on waiting lists. The recent decision to abandon housing targets has exacerbated the housing crisis and will worsen the issue of overcrowded properties. Given that planning applications in England are now at a record low, will the Minister bring forward amendments to the levelling-up Bill to put the targets back into law?
Baroness Scott of Bybrook (Con)
I thank the noble Baroness. We have had this debate on a number of occasions throughout the LUR Bill, and I am sure we will have this discussion again. We are clear that we are looking at the NPPF into the future, but it is up to local planning authorities to decide on the types of housing that they are going to put into their local plans and how many. We feel that, with the new changes in the LURB, local plans will be easier to produce and there will be more of them, delivering more housing for this country.
Lord Young of Cookham (Con)
My Lords, the research to which my noble friend referred showed that the families most likely to suffer from overcrowding are families already in the social housing sector, but they cannot move because there are no larger homes to move to and they cannot afford to rent. In the medium term, should the social housing sector not be building more, larger houses? In the short term, should housing associations and local authorities consider leasing larger homes from the private sector in order to mitigate the problems to which my noble friend referred?
Baroness Scott of Bybrook (Con)
My noble friend is absolutely right. If you have anything to do with local housing, you will realise that there seem to be many more one-bedroom and two-bedroom properties than there are family homes. We recognise the challenge faced by the sector, and that is why we encourage local authorities to continue to consider innovative ways in which they can best use their stock. For example, supporting underoccupiers to transfer to other, smaller properties is one way that they can then relet family homes. Landlords are focused on providing high-quality services to all their tenants. Introducing a new requirement for local authorities to lease larger homes in the open market may also be considered a new burden, for which funding would be unlikely to be provided.
Lord Sahota (Lab)
My Lords, as has already been mentioned, the report firmly states that ethnic-minority households are three times more likely to be overcrowded than white households. Have the Government taken note of that? What do they intend to do to specifically rectify the problem for ethnic minorities?
Baroness Scott of Bybrook (Con)
My Lords, interestingly, in December 2022, we published our report Overcrowding in South Asian Households, to provide a deeper understanding of the issues faced by those from South Asian backgrounds. The study puts Bangladeshi and Pakistani households at the centre of a piece of research, including their perceptions of their living situations and cultural drivers. This is the first time that overcrowding has been studied in that way, and our findings are used to develop culturally sensitive policies on overcrowding and housing more generally. This came from an English Housing Survey that indicated that British Bangladeshis and Pakistanis were particularly affected by overcrowding.
Baroness Berridge (Con)
My Lords, I know a number of families in London who are affected by significant overcrowding, and obviously one of the options for them is to leave London. Will my noble friend the Minister please talk to her colleague at the Department for Education, as there are reports that the school-places situation in London is going to be affected by the fact that families are now moving out of the capital? It might cost more money to build school places elsewhere in the country than to adopt the solution suggested by my noble friend Lord Young, which is to rent from the private sector three-bedroom and four-bedroom properties here in London.
Baroness Scott of Bybrook (Con)
I am aware of some of those issues, some of which came from Covid and people moving out at that time. I do not know the answer to the questions that my noble friend raises on the education side, but I will ask my colleagues in the Department for Education and will write to her.
Lord Grocott (Lab)
My Lords, the myriad issues that arise on housing provision are very serious indeed. The solution might be expensive but it is not complicated —virtually every questioner today has pointed to the lack of supply of social housing. The stats are very simple: the availability of social housing in the last two or three decades has pretty well halved, while much more expensive, private accommodation has pretty well doubled. Can the Government just focus on this one, simply stated issue, as we desperately need a huge expansion of the level of provision of social housing?
Baroness Scott of Bybrook (Con)
That is why, as I have already said, we are putting £11.5 billion into the affordable housing fund, more of which is going to be prioritised on social houses for rent. We are also looking at changing the National Planning Policy Framework in order to increase the importance of social housing. We are encouraging local authorities, in drawing up their local plans, to consider not just affordable housing but social housing for rent. We have just put £500 million into the local authority housing fund to help in the short term.
UK Undersea Infrastructure: Hostile Activity
(1 year ago)
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Lord West of Spithead
To ask His Majesty’s Government what assessment they have made of the risk to the UK’s undersea cables, interconnectors and pipelines from hostile activity.
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
My Lords, the Government take the security and resilience of undersea infrastructure, including cables, interconnectors and pipelines, very seriously. These are critical to our national infrastructure and we monitor the full range of threats and risks, including supply chains and repair arrangements. As the House would expect, the details of any specific assessment of risk from hostile states would be held at high classification for national security reasons.
Lord West of Spithead (Lab)
My Lords, the actions and statements of President Putin would seem to indicate that he already considers he is at war with this country and the West, if you just look at the raft of things he has done. There is no doubt that the Soviet Union, when it existed, was very interested in what was going on under the sea—I was very involved in countering that—and Russia today is probably even more interested in it. Just to give an idea of the costs, if those cables stopped working, £7.4 trillion-worth of financial activity each day would be cut, 25% of our electricity would go, and so on. We put in place the National Maritime Information Centre in about 2010 and we needed the Joint Maritime Security Centre alongside it, because we said firmly that we had to take threats to our territorial seas and exclusive economic zone very seriously. They are now in place, which is good, but they need to be reinforced—and the departments involved need to fully man them—because otherwise we will not be able to counter what is a very real and present threat, which could cause major damage to our nation.
Baroness Goldie (Con)
I in no way disagree with the noble Lord’s final conclusion. It is recognised across government, which is why a number of government departments have a role to play in protecting that critical national infrastructure. We certainly regard these installations as essential to our national infrastructure and monitor a variety of risks that they face. The noble Lord will understand that these subsea cables are predominantly owned and operated privately, but key departments work closely with their owners. Supporting that is the national risk register, the National Protective Security Authority and the National Cyber Security Centre. There is a comprehensive framework to support the private owners and operators of these cables, but the MoD has and discharges a critical role in monitoring threat.
Lord Howell of Guildford (Con)
My Lords, if, as is reported in the newspapers today, the plan is now to turn the whole north Atlantic into one gigantic system of wind farms on an international basis, the effect would be to turn the whole seabed of the north Atlantic into a cat’s cradle of vital undersea electric power lines. Are we prepared, in moving forward to this fossil-free electric world that we are heading for, to safeguard those lines, since they could, if interfered with, put at risk not merely 25% of our electricity supply but our entire electricity supply when the wind is blowing?
Baroness Goldie (Con)
I think we all agree that the overall objective of increasing our usage of renewable energy is laudable and to be commended, but my noble friend is correct that the installation of infrastructure brings with it an obvious degree of risk. As I indicated to the noble Lord, Lord West, across government there are a range of departments with responsibilities in this field. As far as the MoD is concerned, we actively monitor threat. When it comes to looking at, for example, Russian activity in either the Baltic Sea or the North Sea, noble Lords will understand that we regularly assess by our maritime presence what is happening. The Russians know that we know they know what we are doing.
Lord Stirrup (CB)
My Lords, protecting against threats is clearly important but there is no such thing as perfect defence. With what degree of urgency are the Government addressing our resilience in this area of our critical national infrastructure?
Baroness Goldie (Con)
The noble and gallant Lord will be aware that we have operational assets which we can deploy. For example, in the wake of Nord Stream we deployed HMS “Somerset” to monitor what was happening. We also have our MROS programme; one of those ships has been bought and is currently being readied for operational activity, and the other is to be built.
Lord Wallace of Saltaire (LD)
My, Lords, other noble Lords have asked about the national response to this international, shared problem, but it is very clear that what has to be done is a common effort by navies and air forces around the North Sea in particular. I am aware that there is very close co-operation between the Royal Navy and other navies around the North Sea, and with the Royal Air Force. I am also aware that Conservative Ministers prefer not to talk about it. Could the Minister try to encourage the Ministry of Defence to celebrate more the effectiveness of the co-operation we have with the armed forces of other countries in facing shared threats such as this?
Baroness Goldie (Con)
I am not normally accused of taciturnity, so I shall try to encourage the noble Lord. He is aware, certainly, that in relation to recent activity for Ukraine the MoD has been outward facing. We have released intelligence that we have been prepared to comment on. The noble Lord is quite correct that we continue to invest in strong working relationships, partnerships and alliances, such as NATO. We co-operate on the development of new capabilities, such as the MROS vessel I just spoke about. We act in concert with our international allies. That is a very important part of the collective endeavour to try to manage risk.
Lord Lancaster of Kimbolton (Con)
My Lords, we are often quick to criticise defence procurement, but I commend the Government on the procurement of the new MROS vessel. It was announced in October by the Secretary of State for Defence, Ben Wallace, and delivered to the Royal Navy at the end of January—in just three months. Is this not a lesson for us? All too often we try to procure the exquisite at an exquisite price, while here we have acquired the very good at a very reasonable price. What are the lessons for the future; for example, for littoral strike vessels for the Royal Marines, which can be, at the most basic, in effect, converted container ships?
Baroness Goldie (Con)
My noble friend will understand that, coming from Scotland where ferries have become a very sensitive issue, I would applaud any approach which produced vessels where and when they were needed. My noble friend makes an important point. The commissioning and buying of this vessel—as I say, it is being refurbished in readiness for operational activity—is an important experience for the MoD. There are lessons we can learn. There may be merit, as my noble friend rightly says, in not looking so closely at the exquisite ultimate product but looking to what we need now and taking steps to get it.
Lord Berkeley (Lab)
My Lords, a couple of years ago the Government witnessed the cutting of a power cable to the Isles of Scilly, putting the mains off for about three months. I asked the Minister at the time whether they were going to claim compensation. They said, “No, it’s a private sector company so it can do what it likes”. I hope that things have changed.
Baroness Goldie (Con)
That area of responsibility, the noble Lord will understand, is slightly outwith my ministerial bailiwick, but I am sure his remarks have been heard by the appropriate department.
Lord Hannay of Chiswick (CB)
My Lords, does the Minister recognise that yesterday’s Ostend meeting showed how much overlap there is between EU and NATO responsibilities, particularly in the North Sea? Does she not feel that the NATO strategy adopted last summer—that non-EU members of NATO and EU members should be working together—applies precisely to this field? If it does apply to this field, what are the Government doing to take that forward in advance of the NATO summit in Vilnius?
Baroness Goldie (Con)
We have to be clear that NATO exists for a specific purpose. It is a very effective defensive alliance. It is a militarily supported alliance. What I can say to the noble Lord is that I entirely agree with the kernel of his point: the more co-operation we have, the better. That will be more likely to secure a coherent approach to these threats. I am pleased to say that certainly the MoD enjoys extremely good relationships with other European countries, even those not in NATO.
The Lord Bishop of St Albans
My Lords, I was interested to hear the Minister commenting on our engagement with our European allies. However, with reports recently that submarine cables connecting the Taiwanese mainland with the island of Matsu have been cut by Chinese boats, this is an international problem. What consultations are we having with allies around the world; in particular, so that we can try to develop back-up systems when countries are put under threat by this sort of action?
Baroness Goldie (Con)
There are two elements to the right reverend Prelate’s question. The first is about the operational resilience of the installations, which is a matter for the owners and operators of the systems. On the second and important point about the vulnerability of such systems to malign attack, we are certainly committed to prepare for, deter and defend against the coercive use of energy and other hybrid tactics by state and non-state actors. The UK was explicit about this at the United Nations Security Council on 30 September last year, where we made it clear, in relation to NATO, that any deliberate attack against allies’ critical national infrastructure would be met with a united and determined response.
Lord Tunnicliffe (Lab)
My Lords, we recognise that this is a credible threat, and I congratulate the Ministry of Defence on having a ship with the capability to help, since it has already been built—well done. I understand that the second ship is in the concept stage. Is that concept not defined by that of the first ship, or are the Government contemplating a more offensive capability for the future?
Baroness Goldie (Con)
I am not sure that I have the technical detail to respond to the noble Lord, but I will undertake to inquire. If I can disclose further information to him, I shall respond in future.
Lord Alton of Liverpool (CB)
My Lords, in the absence of a full-scale parliamentary debate on the House of Lords International Relations and Defence Select Committee report on defence priorities and procurement, will the Minister at least review the evidence that the Global Marine Group gave to the inquiry, which identified what it said was an “existential threat” to the United Kingdom because of potential attacks on our infrastructure? It referred specifically to Russian submarines “aggressively operating” in the Atlantic. Therefore, can she answer my noble and gallant friend’s question about what we are doing to ensure that we have the necessary resilience to resist those attacks?
Baroness Goldie (Con)
To respond to the noble Lord, I have to return to the final part of my response to the noble Lord, Lord West: although I have information, I am unable to disclose it—it is held with high classification for national security reasons. As I indicated, the MoD operates a very effective surveillance programme: we have aerial surveillance over the North Sea and the high north and we have submarine activity, which shall be assisted by the MROS addition to its fleet.
Lord Sandhurst (Con)
My Lords, do the latest developments not show that we need to have diversity of supply? Does that not mean that the Government must look again at the current embargo on onshore wind farms and at developing nuclear power?
Baroness Goldie (Con)
A critical element of this debate is resilience, which is partly a matter for government in consultation with industry and certainly a matter for individual private infrastructure operators. As my noble friend will be aware, a raft of government departments has responsibility for this: the Cabinet Office, the FCDO, DSIT, the Department for Energy Security and Net Zero —for which I shall not try to use an acronym—and the MoD. While there is a holistic framework of government activity, my noble friend is correct that resilience is the key to good protection.
Lord Anderson of Swansea (Lab)
How significant do the Government consider the reports of the recent accelerated activity around our shores of Russian vessels, particularly those purporting to be either research or fishing vessels, but which are near oil installations?
Baroness Goldie (Con)
We view that activity with great gravity. As I said earlier, we are aware of that activity and we constantly monitor it, but I am unable to disclose further information.
Lord Weir of Ballyholme (DUP)
What specific co-operation is happening with the Republic of Ireland, which is not a NATO member? There is speculation that the Taoiseach was asked today about concerns that Russian naval exercises off the south-west coast of Ireland are being used as a pretext for the Russians to investigate underground cabling in the Atlantic.
Baroness Goldie (Con)
That would be a matter for the Irish Government to assess and to determine their response to. This gets into an area of policy wider than that covered by the MoD; it would be a matter for discussion between the FCDO and its Irish counterparts.
Neonatal Care (Leave and Pay) Bill
Tuesday 25th April 2023
(1 year ago)
Lords ChamberRead Full debate Neonatal Care (Leave and Pay) Act 2023 View all Neonatal Care (Leave and Pay) Act 2023 Debates Read Hansard Text Watch Debate Amendment Paper: Public Bill Committee Amendments as at 7 September 2022 - (7 Sep 2022)
Baroness Wyld (Con)
My Lords, I understand that no amendments have been set down for this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
List of Ministers’ Interests and Ministerial Code
(1 year ago)
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Baroness Smith of Basildon (Lab)
My Lords, for the avoidance of doubt for the Minister, the Question is in two parts, about first the ministerial register of interests, and secondly the Ministerial Code, and my question is specifically about the Ministerial Code. She will know that finally the Prime Minister has appointed an ethics adviser. Officially the adviser’s title is “the independent adviser on ministerial interests”, but I ask whether she considers the job title somewhat misleading. Only the Prime Minister can decide to initiate an investigation and only the Prime Minister has a veto as the sole arbiter of whether the code has been broken. Either the adviser has the independence that the job title implies, or at minimum should be able to investigate. In the interests of integrity and clarity, should the job title not be changed to “the Prime Minister’s adviser on ministerial interests”? It is very hard to see where the independence applies. Will the Minister tell the House whether she considers that change to be appropriate?
The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
I do not think we should make the change that the noble Baroness suggests. I draw the House’s attention to the fact that the terms of reference for the role of the independent adviser were strengthened in May 2022 when the noble Lord, Lord Geidt, was in the post. The changes made expanded the powers of the independent adviser, in particular giving the office holder the ability to initiate investigations. Where the independent adviser considers that an alleged breach of the Ministerial Code warrants further investigation and that has not already been referred to him, he may initiate an investigation. Before doing so, he will consult the Prime Minister, who will normally give his consent.
I am very pleased that we now have the independent adviser and, for completeness, I should revert to one or two of the points made in response to this Question when it was asked yesterday in the other place. The list of Ministers’ interests was published by the independent adviser on Ministers’ interests on 19 April. The list is not exhaustive but is designed to be read in conjunction with the register of interests in this House, which we all complete. I am very happy to answer further questions in relation to the list of Ministers’ interests, which has now been published in relation to all 120 Ministers.
Lord Newby (LD)
My Lords, can I therefore ask the Minister a further question in relation to the list of Ministers’ interests? Does she agree that, in the interests of accountability, it needs to be updated regularly on the same monthly basis as the register of Members’ interests rather than a couple of times a year at best, as has recently been the case? More generally, does she accept that the Civil Service provides advice to Ministers with impartiality and integrity, and to argue that this is not the case, as some Ministers and former Ministers have done in recent days, is unfair, untrue and damaging to Civil Service morale?
Baroness Neville-Rolfe (Con)
The noble Lord asks why the register is not updated on a monthly basis in the same way as the register of interests that applies in our House and in the other place. It is important to understand that they are different. The list published by the independent adviser is a list: it is published every six months as the public endpoint of an ongoing process. Ministers’ interests are declared on appointment and on an ongoing basis to Permanent Secretaries, and are reviewed by the independent adviser. Any changes have to be notified in real time but, because of the nature of ministerial office, the number of new interests is normally fairly small at any point in time, so it makes sense to publish a new list every six months. There was a delay because of changes in government, which the noble Lord will be well aware of.
I started life as a civil servant and I have worked as a Minister with many brilliant civil servants, a view I know is shared by my colleagues. I believe in an independent Civil Service, and its fearless and impartial advice is vital to this country.
Baroness Donaghy (Lab)
My Lords, is it not true that the so-called independent adviser is still a creature of the Prime Minister? The Committee on Standards in Public Life made a number of recommendations to improve the situation, most of which were not adopted. Will the Government reconsider those recommendations from the committee and adopt them so that this position could be seen to be genuinely independent and not a creature of the Prime Minister?
Baroness Neville-Rolfe (Con)
The Government’s work on reforms to strengthen ethics and integrity in central government is now nearing conclusion and we hope to publish our response soon. There have been a number of reports, including Upholding Standards in Public Life, the recommendations of Sir Nigel Boardman’s report on supply chain finance, and PACAC’s fourth report, so we can look forward to a response.
Lord Wallace of Saltaire (LD)
My Lords, we welcome the belated publication of the latest version of ministerial interests. There is a related document which we are also impatiently awaiting, which is the Cabinet Manual. The Government have promised that they will publish it within the foreseeable future, and I understand that there is already a draft in Whitehall. Can the Minister give us any indication of when that Cabinet Manual draft will be complete and will be published?
Baroness Neville-Rolfe (Con)
Work is in progress and it will be published in due course.
Lord Watson of Wyre Forest (Lab)
The Tolley report into the former Deputy Prime Minister spends a lot of time listing the sources he used to define “bullying”, but concludes that his role
“is not to determine as a matter of law what ‘bullying’ means for the purpose of the Ministerial Code”.
Given that the former Deputy Prime Minister disputes that he was a bully, and that other Ministers have supported him, does the Minister think it would be wise for the Prime Minister to amend the Ministerial Code to put his definition of bullying into it, so there is no ambiguity going forward?
Baroness Neville-Rolfe (Con)
Since the noble Lord mentions the former Deputy Prime Minister, I remind the House that he made an important contribution to the country, not least by his work during the pandemic. On a personal note, he supported me and indeed the Bench opposite on justice for retail workers facing harassment. He felt obliged to resign following the Tolley report, and I respect his decision. The noble Lord may have seen the letter to the former Deputy Prime Minister from the Prime Minister. It said,
“it is clear that there have been shortcomings in the historic process that have negatively affected everyone involved. We should learn from this how to better handle such matters in future”.
Lord Hope of Craighead (CB)
My Lords, the Tolley report, which looked into the matter in great detail, referred to intimidation rather than bullying as the cause of the conduct which led the former Deputy Prime Minister to resign. There is a difference between intimidation and bullying, and that should be recognised.
Baroness Neville-Rolfe (Con)
I do not think I have a great deal to add to the Prime Minister’s reply, other than to underline the point that has been made about how we learn to better handle such matters in future. The points that noble Lords have made are, of course, relevant to that.
The Earl of Courtown (Con)
My Lords, it is the turn of the Conservative Benches.
Baroness Berridge (Con)
My Lords, we have a code of conduct that governs the behaviour of special advisers, the Civil Service Code and the Ministerial Code. In most other environments, those in authority in organisations have the protection of the whistleblowing Act. Has anybody considered—perhaps my noble friend could ask the independent adviser on ethics to consider it —how we are making good the gap that exists, potentially, where there are not those protections for those in office when one might need to blow the whistle?
Baroness Neville-Rolfe (Con)
I obviously come from a business background, where whistleblowing is a very important and helpful constraint on wrongful behaviour. I will certainly reflect on my noble friend’s point about whistleblowing in the work that we do following up on these issues.
Online Safety Bill
Tuesday 25th April 2023
(1 year ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 87(Rev)-III Third marshalled list for Committee - (25 Apr 2023)
Baroness Kidron
“(d) an internet service, other than a regulated user-to-user service or search service, that meets the child user condition and enables or promotes harmful activity and content as set out in Schedule (Online harms to children).”Member’s explanatory statement
This amendment would mean any service that meets the 'child user condition' and enables or promotes harmful activity and content to children, as per a new Schedule, would be in scope of the regulation of the bill.
Baroness Kidron (CB)
My Lords, I refer the Committee to my interests as put in the register and declared in full at Second Reading. I will speak to Amendment 2 in my name and those of the right reverend Prelate the Bishop of Oxford and the noble Baroness, Lady Harding, to Amendments 3 and 5 in my name, and briefly to Amendments 19, 22, 298 and 299 in the name of the noble Baroness, Lady Harding.
The digital world does not have boundaries in the way that the Bill does. It is an ecosystem of services and products that are interdependent. A user journey is made up of incremental signals, nudges and enticements that mean that, when we use our devices, very often we do not end up where we intended to start. The current scope covers user-to-user, search and commercial porn services, but a blog or website that valorises self-harm and depression or suggests starving yourself to death is still exempt because it has limited functionality. So too are games without a user-to-user function, in spite of the known harm associated with game addiction highlighted recently by Professor Henrietta Bowden-Jones, national expert adviser on gambling harms, and the World Health Organization in 2019 when it designated gaming disorder as a behavioural addiction.
There is also an open question about immersive technologies, whose protocols are still very much in flux. I am concerned that the Government are willing to assert that these environments will meet the bar of user-to-user when those that are still building immersive environments make quite clear that that is not a given. Indeed, later in Committee I will be able to demonstrate that already the very worst harms are happening in environments that are not clearly covered by the Bill.
Another unintended consequence of the current drafting is that the task of working out whether you are on a regulated or unregulated service is left entirely to children. That is not what we had been promised. In December the Secretary of State wrote in a public letter to parents,
“I want to reassure every person reading this letter that the onus for keeping young people safe online will sit squarely on the tech companies’ shoulders”.
It is likely that the Minister will suggest that the limited- functionality services will be caught by the gatekeepers. But, as in the case of immersive technology, it is dangerous to suggest that, just because search and user- to-user are the primary access points in 2023, that will remain the case. We must be more forward thinking and ensure that services likely to be accessed that promote harm are in scope by default.
Amendments 3 and 5 are consequential, so I will not debate them now. I have listened to the Government and come back with a reasonable and implementable amendment that applies only to services that are likely to be accessed by children and that enable harm. I now ask the Government to listen and do likewise.
Amendments 92 and 193 cover the child user condition. The phrase “likely to be accessed”, introduced in this House into what became the Data Protection Act 2018, is one of the most unlikely successful British exports. Both the phrase and its definition, set out by the ICO, have been embedded in regulations in countries the world over—yet the Bill replaces this established language while significantly watering down the definition.
The Bill requires
“a significant number of children”
to use the service, or for the service to be
“likely to attract a significant number of users who are children”.
“Significant” in the Bill is defined relative to the overall UK user base, which means that extremely large platforms could deem a few thousand child users not significant compared with the several million-strong user base. Since only services that cross this threshold need comply with the child safety duties, thousands of children will not benefit from the safety duties that the Minister told us last week were at the heart of the Bill.
Amendment 92 would put the ICO’s existing and much-copied definition into the Bill. It says a service is
“likely to be accessed by children”
if
“the service is designed or intended for use by children … children form a substantive and identifiable user group … the possibility of a child accessing the service is more probable than not, taking into consideration … the nature and content of the service and whether that has particular appeal for children … the way in which the service is accessed and any measures in place to prevent children gaining access … market research, current evidence on user behaviour, the user base of similar or existing services”
that are likely to be accessed.
Having two phrases and definitions is bad for business and even worse for regulators. The ICO has first-mover advantage and a more robust test. It is my contention that parents, media and perhaps even our own colleagues would be very shocked to know that the definition in the Bill has the potential for many thousands, and possibly tens of thousands, of children to be left without the protections that the Bill brings forward. Perhaps the Minister could explain why the Government have not chosen regulatory alignment, which is good practice.
Finally, I will speak briefly in support of Amendments 19, 22, 298 and 299. I am certain that the noble Baroness, Lady Harding, will spell out how the app stores of Google and Apple are simply a subset of “search”, in that they are gatekeepers to accessing more than 5 million apps worldwide and the first page of each is indeed a search function. Their inclusion should be obvious, but I will add a specific issue about which I have spoken directly with both companies and about which the 5Rights Foundation, of which I am chair, has written to the ICO.
When we looked at the age ratings of apps across Google Play Store and Apple, four things emerged. First, apps are routinely rated much lower than their terms and conditions: for example, Amazon Shopping says 18 but has an age rating of 4 on Apple. This pattern goes across both platforms, covering social sites, gaming, shopping, et cetera.
Secondly, the same apps and services did not have the same age rating across both services, which, between them, are gatekeepers for more than 95% of the app market. In one extreme case, an app rated four on one of them was rated 16 on the other, with other significant anomalies being extremely frequent.
Thirdly, almost none of the apps considered their data protection duties in coming to a decision on their age rating, which is a problem, since privacy and safety and inextricably linked.
Finally, in the case of Apple, using a device registered to a 15 year-old, we were able to download age-restricted apps including a dozen or more 18-plus dating sites. In fairness, I give a shoutout to Google, which, because of the age-appropriate design code, chose more than a year ago not to show 18-plus content to children in its Play Store. So this is indeed a political and business choice and not a question of technology. Millions of services are accessed via the App Store. Given the Government’s position—that gatekeepers have specific responsibilities in relation to harmful content and activity—surely the amendments in the name of the noble Baroness, Lady Harding, are necessary.
My preference was for a less complicated Bill based on principles and judged on outcomes. I understand that that ship has sailed, but it is not acceptable for the Government now to use the length and complexity of the Bill as a reason not to accept amendments that would fill loopholes where harm has been proven. It is time to deliver on the promises made to parents and children, and to put the onus for keeping young people safe online squarely on tech companies’ shoulders. I beg to move.
Baroness Harding of Winscombe (Con)
My Lords, I rise to speak to Amendments 19, 22, 298 and 299 in my name and those of the noble Baroness, Lady Stowell, and the noble Lords, Lord Knight and Lord Clement-Jones. I will also briefly add at the end of my speech my support for the amendments in the name of my friend, the noble Baroness, Lady Kidron. It has been a huge privilege to be her support act all the way from the beginnings of the age-appropriate design code; it feels comfortable to speak after her.
I want briefly to set out what my amendments would do. Their purpose is to bring app stores into the child protection elements of the Bill. Amendment 19 would require app stores to prepare
“risk assessments equal to user-to-user services due to their role in distributing online content through apps to children and as a primary facilitator of user-to-user”
services reaching children. Amendment 22 would mandate app stores
“to use proportionate and proactive measures, such as age assurance, to prevent children”
coming into contact with
“primary priority content that is harmful to children”.
Amendments 298 and 299 would simply define “app” and “app stores”.
Let us be clear what app stores do. They enable customers to buy apps and user-to-user services. They enable customers to download free apps. They offer up curated content in the app store itself and decide what apps someone would like to see. They enable customers to search for apps for user-to-user content. They provide age ratings; as the noble Baroness, Lady Kidron, said, they may be different age ratings in different app stores for the same app. They sometimes block the download of apps based on the age rating and their assessment of someone’s age, but not always, and it is different for different app stores.
Why should they be included in this Bill—if it is not obvious from what I have already said? First, two companies are profiting from selling user-to-user products to children. Two app stores account for some 98%-plus of all downloads of user-to-user services, with no requirements to assess the risk of selling those products to children or to mitigate those risks. We do not allow that in the physical world so we should not allow it in the digital world.
Secondly, parents and teenagers tell us that this measure would help. A number of different studies have been done; I will reference just two. One was by FOSI, the Family Online Safety Institute, which conducted an international research project in which parents consistently said that having age assurance at the app store level would make things simpler and more effective for them; ironically, the FOSI research was conducted with Google.
The Lord Bishop of Oxford
My Lords, it is a pleasure to follow the two noble Baronesses. I remind the Committee of my background as a board member of the Centre for Data Ethics and Innovation. I also declare an indirect interest, as my oldest son is the founder and studio head of Mediatonic, which is now part of Epic Games and is the maker of “Fall Guys”, which I am sure is familiar to your Lordships.
I speak today in support of Amendments 2 and 92 and the consequent amendments in this group. I also support the various app store amendments proposed by the noble Baroness, Lady Harding, but I will not address them directly in these remarks.
I was remarkably encouraged on Wednesday by the Minister’s reply to the debate on the purposes of the Bill, especially by the priority that he and the Government gave to the safety of children as its primary purpose. The Minister underlined this point in three different ways:
“The main purposes of the Bill are: to give the highest levels of protection to children … The Bill will require companies to take stringent measures to tackle illegal content and protect children, with the highest protections in the Bill devoted to protecting children … Children’s safety is prioritised throughout this Bill”.—[Official Report, 19/4/23; col. 724.]
The purpose of Amendments 2 and 92 and consequent amendments is to extend and deepen the provisions in the Bill to protect children against a range of harms. This is necessary for both the present and the future. It is necessary in the present because of the harms to which children are exposed through a broad range of services, many of which are not currently in the Bill’s scope. Amendment 2 expands the scope to include any internet service that meets the child user condition and enables or promotes harmful activity and content as set out in the schedule provided. Why would the Government not take this step, given the aims and purposes of the Bill to give the highest protection to children?
Every day, the diocese of Oxford educates some 60,000 children in our primary and secondary schools. Almost all of them have or will have access to a smartphone, either late in primary, hopefully, or early in secondary school. The smartphone is a wonderful tool to access educational content, entertainment and friendship networks, but it is also a potential gateway for companies, children and individuals to access children’s inner lives, in secret, in the dead of night and without robust regulation. It therefore exposes them to harm. Sometimes that harm is deliberate and sometimes unintentional. This power for harm will only increase in the coming years without these provisions.
The Committee needs to be alert to generational changes in technology. When I was 16 in secondary school in Halifax, I did a computer course in the sixth form. We had to take a long bus ride to the computer building in Huddersfield University. The computer filled several rooms in the basement. The class learned how to program using punch cards. The answers to our questions came back days later, on long screeds of printed paper.
When my own children were teenagers and my oldest was 16, we had one family computer in the main living room of the house. The family was able to monitor usage. Access to the internet was possible, but only through a dial-up modem. The oldest of my grandchildren is now seven and many of his friends have smartphones now. In a few years, he will certainly carry a connected device in his pocket and, potentially, have access to the entire internet 24/7.
I want him and millions of other children to have the same protection online as he enjoys offline. That means recognising that harms come in a variety of shapes and sizes. Some are easy to spot, such as pornography. We know the terrible damage that porn inflicts on young lives. Some are more insidious and gradual: addictive behaviours, the promotion of gambling, the erosion of confidence, grooming, self-harm and suicidal thoughts, encouraging eating disorders, fostering addiction through algorithms and eroding the barriers of the person.
The NSPCC describes many harms to children on social networks that we are all now familiar with, but it also highlights online chat, comments on livestream sites, voice chat in games and private messaging among the vectors for harm. According to Ofcom, nine in 10 children in the UK play video games, and they do so on devices ranging from computers to mobile phones to consoles. Internet Matters says that most children’s first interaction with someone they do not know online is now more likely to be in a video game such as “Roblox” than anywhere else. It also found that parents underestimate the frequency with which their children are contacted by strangers online.
The Gambling Commission has estimated that 25,000 children in the UK aged between 11 and 16 are problem gamblers, with many of them introduced to betting via computer games and social media. Families have been left with bills, sometimes of more than £3,000, after uncontrolled spending on loot boxes.
Online companies, we know, design their products with psychological principles of engagement firmly in view, and then refine their products by scraping data from users. According to the Information Commissioner, more than 1 million underage children could have been exposed to underage content on TikTok alone, with the platform collecting and using their personal data.
As the noble Baroness, Lady Kidron, has said, we already have robust and tested definitions of scope in the ICO’s age-appropriate design code—definitions increasingly taken up in other jurisdictions. To give the highest protection to children, we need to build on these secure definitions in this Bill and find the courage to extend robust protection across the internet now.
We also need to future-proof this Bill. These key amendments would ensure that any development, any new kind of service not yet imagined which meets the child user condition and enables or promotes harmful activity and content, would be in scope. This would give Ofcom the power to develop new guidance and accountabilities for the applications that are certain to come in the coming years.
We have an opportunity and a responsibility, as the Minister has said, to build the highest protection into this Bill. I support the key amendments standing in my name.
Baroness Stowell of Beeston (Con)
My Lords, first, I beg the indulgence of the Committee to speak briefly at this juncture. I know that no one from the Lib Dem or Labour Benches has spoken yet, but I need to dash over to the Moses Room to speak to some amendments I am moving on the Bill being considered there. Secondly, I also ask the Committee that, if I do not get back in time for the wind-ups, I be forgiven on this occasion.
I simply wanted to say something briefly in support of Amendments 19, 22, 298 and 299, to which I have added my name. My noble friend Lady Harding has already spoken to them comprehensively, so there little I want to add; I just want to emphasise a couple of points. But first, if I may, I will pick up on something the right reverend Prelate said. I think I am right in saying that the most recent Ofcom research shows that 57% of 7 year-olds such as his grandchild have their own phone, and by the time children reach the age of 12 they pretty much all have their own phone. One can only imagine that the age at which children possess their own device is going to get lower.
Turning to app stores, with which these amendments are concerned, currently it is the responsibility of parents and developers to make sure that children are prevented from accessing inappropriate content. My noble friend’s amendments do not dilute in any way the responsibility that should be held by those two very important constituent groups. All we are seeking to do is ensure that app stores, which are currently completely unregulated, take their share of responsibility for making sure that those seeking to download and then use such apps are in the age group the apps are designed for.
As has already been very powerfully explained by my noble friend and by the noble Baroness, Lady Kidron, different age ratings are being given by the two different app stores right now. It is important for us to understand, in the context of the digital markets and competition Bill, which is being introduced to Parliament today—I cannot tell noble Lords how long we have waited for that legislation and how important it is, not least because it will open up competition, particularly in app stores—that the more competition there will be across app stores and the doorways through which children can go to purchase or download apps, the more important it is that there is consistency and some regulation. That is why I support my noble friend and was very happy to add my name to her amendments.
Lord Allan of Hallam (LD)
My Lords, it falls to me to inject some grit into what has so far been a very harmonious debate, as I will raise some concerns about Amendments 2 and 22.
I again declare my interest: I spent 10 years working for Facebook, doing the kind of work that we will regulate in this Bill. At this point noble Lords are probably thinking, “So it’s his fault”. I want to stress that, if I raise concerns about the way the regulation is going, it is not that I hold those views because I used to work for the industry; rather, I felt comfortable working in the industry because I always had those views, back to 2003 when we set up Ofcom. I checked the record, and I said things then that are remarkably consistent with how I feel today about how we need to strike the balance between the power of the state and the power of the citizen to use the internet.
I also should declare an interest in respect of Amendment 2, in that I run a blog called regulate.tech. I am not sure how many children are queueing up to read my thoughts about regulation of the tech industry, but they would be welcome to do so. The blog’s strap- line is:
“How to regulate the internet without breaking it”.
It is very much in that spirit that I raise concerns about these two amendments.
I certainly understand the challenges for content that is outside of the user-to-user or search spaces. I understand entirely why the noble Baroness, Lady Kidron, feels that something needs to be done about that content. However, I am not sure that this Bill is the right vehicle to address that kind of content. There are principled and practical reasons why it might be a mistake to extend the remit here.
The principle is that the Bill’s fundamental purpose is to restrict access to speech by people in the United Kingdom. That is what legislation such as this does: it restricts speech. We have a framework in the Human Rights Act, which tells us that when we restrict speech we have to pass a rigorous test to show that those restrictions are necessary and proportionate to the objective we are trying to achieve. Clearly, when dealing with children, we weight very heavily in that test whether something is necessary and proportionate in favour of the interest of the welfare of the children, but we cannot do away with the test altogether.
It is clear that the Government have applied that test over the years that they have been preparing this Bill and determined that there is a rationale for intervention in the context of user-to-user services and search services. At the same time, we see in the Bill that the Government’s decision is that intervention is not justified in all sorts of other contexts. Email and SMS are excluded. First-party publisher content is excluded, so none of the media houses will be included. We have a Bill that is very tightly and specifically framed around dealing with intermediaries, whether that is user-to-user intermediaries who intermediate in user-generated content, or search as an intermediary, which scoops up content from across the internet and presents it to you.
This Bill is about regulating the regulators; it is not about regulating first-party speakers. A whole world of issues will come into play if we move into that space. It does not mean that it is not important, just that it is different. There is a common saying that people are now bandying around, which is that freedom of speech is not freedom of reach. To apply a twist to that, restrictions on reach are not the same as restrictions on speech. When we talk about restricting intermediaries, we are talking about restricting reach. If I have something I want to say and Facebook or Twitter will not let me say it, that is a problem and I will get upset, but it is not the same as being told that I cannot say it anywhere on the internet.
My concern about Amendment 2 is that it could lead us into a space where we are restricting speech across the internet. If we are going to do that—there may be a rationale for doing it—we will need to go back and look at our necessity and proportionality test. It may play out differently in that context from user-to-user or intermediary-based services.
From a practical point of view, we have a Bill that, we are told, will give Ofcom the responsibility of regulating 25,000 more or less different entities. They will all be asked to pay money to Ofcom and will all be given a bunch of guidance and duties that they have to fulfil. Again, those duties, as set out in painful length in the Bill, are very specifically about the kind of things that an intermediary should do to its users. If we were to be regulating blogs or people’s first-party speech, or publishers, or the Daily Telegraph, or whoever else, I think we would come up with a very different set of duties from the duties laid out in the Bill. I worry that, however well-motivated, Amendment 2 leads us into a space for which this Bill is not prepared.
I have a lot of sympathy with the views of the noble Baroness, Lady Harding, around the app stores. They are absolutely more like intermediaries, or search, but again the tools in the Bill are not necessarily dedicated to how one would deal with app stores. I was interested in the comments of the noble Baroness, Lady Stowell, on what will be happening to our competition authorities; a lot will be happening in that space. On app stores, I worry about what is in Amendment 22: we do not want app stores to think that it is their job to police the content of third-party services. That is Ofcom’s job. We do not want the app stores to get in the middle, not least because of these commercial considerations. We do not want Apple, for instance, thinking that, to comply with UK legislation, it might determine that WhatsApp is unsafe while iMessage is safe. We do not want Google, which operates Play Store, to think that it would have a legal rationale for determining that TikTok is unsafe while YouTube is safe. Again, I know that this is not the noble Baroness’s intention or aim, but clearly there is a risk that we open that up.
There is something to be done about app stores but I do not think that we can roll over the powers in the Bill. When we talk about intermediaries such as user-to-user services and search, we absolutely want them to block bad content. The whole thrust of the Bill is about forcing them to restrict bad content. When it comes to app stores, the noble Baroness set out some of her concerns, but I think we want something quite different. I hesitate to say this, as I know that my noble friend is supportive of it, but I think that it is important as we debate these issues that we hear some of those concerns.
Lord Knight of Weymouth (Lab)
Could it not be argued that the noble Lord is making a case for regulation of app stores? Let us take the example of Apple’s dispute with “Fortnite”, where Apple is deciding how it wants to police things. Perhaps if this became a more regulated space Ofcom could help make sure that there was freedom of access to some of those different products, regardless of the commercial interests of the people who own the app stores.
Lord Allan of Hallam (LD)
The noble Lord makes a good point. I certainly think we are heading into a world where there will be more regulation of app stores. Google and Apple are commercial competitors with some of the people who are present in their stores. A lot of the people in their stores are in dispute with them over things such as the fees that they have to pay. It is precisely for that reason that I do not think we should be throwing online safety into the mix.
There is a role for regulating app stores, which primarily focuses on these commercial considerations and their position in the market. There may be something to be done around age-rating; the noble Baroness made a very good point about how age-rating works in app stores. However, if we look at the range of responsibilities that we are describing in this Bill and the tools that we are giving to intermediaries, we see that they are the wrong, or inappropriate, set of tools.
Baroness Harding of Winscombe (Con)
Would the noble Lord acknowledge that app stores are already undertaking these age-rating and blocking decisions? Google has unilaterally decided that, if it assesses that you are under 18, it will not serve up over-18 apps. My concern is that this is already happening but it is happening indiscriminately. How would the noble Lord address that?
Lord Allan of Hallam (LD)
The noble Baroness makes a very good point; they are making efforts. There is a role for app stores to play but I hope she would accept that it is qualitatively different from that played by a search engine or a user-to-user service. If we were to decide, in both instances, that we want app stores to have a greater role in online safety and a framework that allows us to look at blogs and other forms of content, we should go ahead and do that. All I am arguing is that we have a Bill that is carefully constructed around two particular concepts, a user-to-user service and a search engine, and I am not sure it will stretch that far.
Baroness Kidron (CB)
I want to reassure the noble Lord: I have his blog in front of me and he was quite right—there were not a lot of children on that site. It is a very good blog, which I read frequently.
I want to make two points. First, age-rating and age-gating are two different things, and I think the noble Lord has conflated them. There is a lot of age- rating going on, and it is false information. We need good information, and we have not managed to get it by asking nicely. Secondly, I slightly dispute his idea that we have a very structured Bill regarding user-to-user and so on. We have a very structured Bill from a harms perspective that describes the harms that must be prevented—and then we got to commercial porn, and we can also get to these other things.
I agree with the noble Lord’s point about freedom of speech, but we are talking about a fixed set of harms that will, I hope, be in the Bill by the end. We can then say that if children are likely to be accessed by this test, and known harm is there, that is what we are looking at. We are certainly not looking at the noble Lord’s blog.
Lord Allan of Hallam (LD)
I appreciate the intervention by the noble Baroness; I hope through this grit we may conjure up a pearl of some sort. The original concept of the Bill, as championed by the noble Baroness, would have been a generalised set of duties of care which could have stretched much more broadly. It has evolved in a particular direction and become ever more specific and tailored to those three services: user-to-user, search, and pornography services. Having arrived at that point, it is difficult to then open it back up and stretch it to reach other forms of service.
My intention in intervening in this debate is to raise some of those concerns because I think they are legitimate. I may be at the more sceptical end of the political world, but I am at the more regulation-friendly end of the tech community. This is said in a spirit of trying to create a Bill that will actually work. I have done the work, and I know how hard Ofcom’s job will be. That sums up what I am trying to say: my concern is that we should not give Ofcom an impossible job. We have defined something quite tight—many people still object to it, think it is too loose and do not agree with it—but I think we have something reasonably workable. I am concerned that, however tempting it is, by re-opening Pandora’s box we may end up creating something less workable.
That does not mean we should forget about app stores and non-user-to-user content, but we need to think of a way of dealing with those which does not necessarily just roll over the mechanism we have created in the Online Safety Bill to other forms of application.
Baroness Healy of Primrose Hill (Lab)
I strongly support the amendments in the name of the noble Baroness, Lady Kidron, because I want to see this Bill implemented but strengthened in order to fulfil the admirable intention that children must be safe wherever they are online. This will not be the case unless child safety duties are applicable in all digital environments likely to be accessed by children. This is not overly ambitious or unrealistic; the platforms need clarity as to these new responsibilities and Ofcom must be properly empowered to enforce the rules without worrying about endless legal challenges. These amendments will give that much-needed clarity in this complex area.
As the Joint Committee recommended, this regulatory alignment would simplify compliance with businesses while giving greater clarity to people who use the service and greater protection for children. It would give confidence to parents and children that they need not work out if they are in a regulated or unregulated service while online. The Government promised that the onus for keeping young people safe online would sit squarely on the tech companies’ shoulders.
Without these amendments, there is a real danger that a loophole will remain whereby some services, even those that are known to harm, are exempt, leaving thousands of children exposed to harm. They would also help to future-proof the Bill. For example, some parts of the metaverse as yet undeveloped may be out of scope, but already specialist police units have raised concerns that abuse rooms, limited to one user, are being used to practise violence and sexual violence against women and girls.
We can and must make this good Bill even better and support all the amendments in this group.
Lord Russell of Liverpool (CB)
My Lords, as I listen to the words echoing around the Chamber, I try to put myself in the shoes of parents or children who, in one way or another, have suffered as a result of exposure to things happening online. Essentially, the world that we are talking about has been allowed to grow like Topsy, largely unregulated, at a global level and at a furious pace, and that is still happening as we do this. The horses have not just bolted the stable; they are out of sight and across the ocean. We are talking about controlling and understanding an environment that is moving so quickly that, however fast we move, we will be behind it. Whatever mousetraps we put in place to try to protect children, we know there are going to be loopholes, not least because children individually are probably smarter than we are collectively at knowing how to get around well-meaning safeguards.
There are ways of testing what is happening. Certain organisations have used what they term avatars. Essentially, you create mythical profiles of children, which are clearly stated as being children, and effectively let them loose in the online world in various directions on various platforms and observe what happens. The tests that have been done on this—we will go into this in more detail on Thursday when we talk about safety by design—are pretty eye-watering. The speed with which these avatars, despite being openly stated as being profiles of children, are deluged by a variety of content that should be nowhere near children is dramatic and incredibly effective.
I put it to the Minister and the Bill team that one of the challenges for Ofcom will be not to be so far behind the curve that it is always trying to catch up. It is like being a surfer: if you are going to keep going then you have to keep on the front side of the wave. The minute you fall behind it, you are never going to catch up. I fear that, however well-intentioned so much of the Bill is, unless and until His Majesty’s Government and Ofcom recognise that we are probably already slightly behind the crest of the wave, whatever we try to do and whatever safeguards we put in place are not necessarily going to work.
One way we can try to make what we do more effective is the clever, forensic use of approaches such as avatars, not least because I suspect their efficacy will be dramatically increased by the advent and use of AI.
Lord Bethell (Con)
Tim Cook, the CEO of Apple, put it very well:
“Kids are born digital, they’re digital kids now … And it is, I think, really important to set some hard rails around it”.
The truth is that in the area of app stores, Google and Apple, which, as we have heard, have a more than 95% share of the market, are just not voluntarily upholding their responsibilities in making the UK a safe place for children online. There is an air of exceptionalism about the way they behave that suggests they think the digital world is somehow different from the real world. I do not accept that, which is why I support the amendments in the name of my noble friend Lady Harding and others—Amendments 19, 22, 298, 299 and other connected amendments.
There are major holes in the app stores’ child safety measures, which mean that young teens can access adult apps that offer dating, random chats, casual sex and gambling, even when Apple and Google emphatically know that the user is a minor. I will give an example. Using an Apple ID for a simulated 14 year-old, the Tech Transparency Project looked at 80 apps in the App Store that are theoretically limited to 17 and older. It found that underage users could very easily evade age restrictions in the vast majority of cases. There is a dating app that opens directly into pornography before ever asking the user’s age; adult chat apps filled with explicit images that never ask the user’s age, and a gambling app that lets the minor account deposit and withdraw money.
What kind of apps are we talking about here? We are talking about apps such as UberHoney; Eros, the hook-up and adult chat app; Hahanono—Chat & Get Naughty, and Cash Clash Games: Win Money. The investigation found that Apple and other apps essentially pass the buck to each other when it comes to blocking underage users, making it easy for young teens to slip through the system. My day-to-day experience as a parent of four children completely echoes that investigation, and it is clear to me that Apple and Google just do not share age data with the apps in their app stores, or else children would not be able to download those apps.
There is a wilful blindness to minors tweaking their age. Parental controls on mobile phones are, to put it politely, a joke. It takes a child a matter of minutes to circumvent them—I know from my experience—and I have wasted many hours fruitlessly trying to control these arrangements. That is just not good enough for any business. It is not good enough because so many teenagers have mobile phones, as we discussed—two-thirds of children have a smartphone by the age of 10. Moreover, it is not good enough because they are accessing huge amounts of filthy content, dodgy services and predatory adults, things that would never be allowed in the real world. The Office of the Children’s Commissioner for England revealed that one in 10 children had viewed pornography by the time they were nine years old. The impact on their lives is profound: just read the testimony on the recent Mumsnet forums about the awful impact of pornography on their children’s lives.
To prevent minors from accessing adult-only apps, the most efficient measure would be, as my noble friend Lady Harding pointed out, to check users’ ages during the distribution step, which means directly in the app store or on the web browser, prior to the app store or the internet browser initiating the app or the platform download. This can be done without the developer knowing the user’s specific age. Developing a reliable age-verification regime applied at that “distribution layer” of the internet supply chain would significantly advance the UK’s objective of creating a safer online experience and set a precedent that Governments around the world could follow. It would apply real-world principles to the internet.
This would not absolve any developer, app or platform of their responsibilities under existing legislation—not at all: it would build on that. Instead, it would simply mandate that every player in the ecosystem, right from the app store distribution layer, was legally obliged to promote a safer experience online. That is completely consistent with the principles and aims of the Online Safety Bill.
These amendments would subject two of the biggest tech corporations to the same duties regarding their app stores as we do the wider digital ecosystem and the real world. It is all about age assurance and protecting children. To the noble Lord, Lord Allan, I say that I cannot understand why my corner shop requires proof of age to buy cigarettes, pornography or booze, but Apple and Google think it is okay to sell apps with inappropriate content and services without proper age-verification measures and with systems that are wilfully unreliable.
There is a tremendous amount that is very good about Tim Cook’s commitment to privacy and his objections to the data industrial complex; but in this matter of the app stores, the big tech companies have had a blind spot to child safety for decades and a feeling of exceptionalism that is just no longer relevant. These amendments are an important step in requiring that app store owners step up to their responsibilities and that we apply the same standards to shopkeepers in the digital world as we would to shopkeepers in the real world.
Lord Storey (LD)
My Lords, I enter this Committee debate with great trepidation. I do not have the knowledge and expertise of many of your Lordships, who I have listened to with great interest. What I do have is experience working with children, for over 40 years, and as a parent myself. I want to make what are perhaps some innocent remarks.
I was glad that the right reverend Prelate the Bishop of Oxford raised the issue of online gaming. I should perhaps declare an interest, in that I think Liverpool is the third-largest centre of online gaming in terms of developing those games. It is interesting to note that over 40% of the entertainment industry’s global revenue comes from gaming, and it is steadily growing year on year.
If I am an innocent or struggle with some of these issues, imagine how parents must feel when they try to cope every single day. I suppose that the only support they currently have, other than their own common sense of course, are rating verifications or parental controls. Even the age ratings confuse them, because there are different ratings for different situations. We know that films are rated by the British Board of Film Classification, which also rates Netflix and now Amazon. But it does not rate Disney, which has its own ratings system.
We also know that the gaming industry has a different ratings system: the PEGI system, which has a number linked to an age. For example PEGI 16, if a parent knew this, says that that rating is required when depiction of violence or sexual activity reaches a stage where it looks realistic. The PEGI system also has pictures showing that.
Thanks to the Video Recordings Act 1984, the PEGI 12, PEGI 16 and PEGI 18 ratings became legally enforceable in the UK, meaning that retailers cannot sell those video games to those below those ages. If a child or young person goes in, they could not be sold those games. However, the Video Recordings Act does not currently apply to online games, meaning that children’s safety in online gaming relies primarily on parents setting up parental controls.
I will listen with great interest to the tussles between various learned Lords, as all these issues show to me that perhaps the most important issue will come several Committee days down the path, when we talk about media literacy. That is because it is not just about enforcement, regulation or ratings; it is about making sure that parents have the understanding and the capacity. Let us not forget this about young people: noble Lords have talked about them all having a phone and wanting to go on pornographic sites, but I do not think that is the case at all. Often, young people, because of peer pressure and because of their innocence, are drawn into unwise situations. Then there are the risks that gaming can lead to: for example, gaming addiction was mentioned by the right reverend Prelate the Bishop of Oxford. There is also the health impact and maybe a link with violent behaviour. There is the interactive nature of video game players, cyber bullying and the lack of a feeling of well-being. All these things can happen, which is why we need media literacy to ensure that young people know of those risks and how to cope with them.
The other thing that we perhaps need to look at is standardising some of the simple gateposts that we currently have, hence the amendment.
Baroness Wyld (Con)
My Lords, it is a pleasure to follow the noble Lord, Lord Storey. I support Amendments 19, 22 and so on in the name of my noble friend Lady Harding, on app stores. She set it out so comprehensively that I am not sure there is much I can add. I simply want to thank her for her patience as she led me through the technical arguments.
The Lord Bishop of Guildford
My Lords, one of our clergy in the diocese of Guildford has been campaigning for more than a decade, as have others in this Committee, on children’s access to online pornography. With her, I support the amendments in the names of the noble Baronesses, Lady Kidron and Lady Harding.
Her concerns eventually made their way to the floor of the General Synod of the Church of England in a powerful debate in July last year. The synod voted overwhelmingly in favour of a motion, which said that we
“acknowledge that our children and young people are suffering grave harm from free access to online pornography”
and urged us to
“have in place age verification systems to prevent children from having access to those sites”.
It asked Her Majesty’s Government to use their best endeavours to secure the passage and coming into force of legislation requiring age-verification systems preventing access by people under the age of 18. It also recommended more social and educational programmes to increase awareness of the harms of pornography, including self-generated sexually explicit images.
Introducing the motion, my chaplain, Reverend Jo Winn-Smith, said that age verification
“ought to be a no-brainer … Exposure to sexualised material is more likely to lead to young people engaging in more sexualised behaviour and to feel social pressure to have sex”,
as well as normalising sexual violence against girls and women. A speech from the chaplain-general of the Prison Service towards the end of the debate highlighted just where such behaviours and pressures could lead in extreme circumstances.
One major theme that emerged during the debate is highlighted by the amendments this afternoon: that access to online pornography goes far beyond materials that fall into what the Bill defines as Part 5 services. Another is highlighted in a further group of amendments: age assurance needs to be both mandatory and effective beyond reasonable doubt.
It was also commented on how this whole area has taken such an age to get on to the statute book, given David Cameron’s proposals way back in 2013 and further legislation proposed in 2018 that was never enacted. Talk of secondary legislation to define harmful content in that regard is alarming, as a further amendment indicates, given the dragging of feet that has now been perpetuated for more than a decade. That is a whole generation of children and young people.
In an imaginative speech in the synod debate, the most reverend Primate the Archbishop of York, Archbishop Stephen, reminded us that the internet is not a platform; it is a public space, where all the rights and norms you would expect in public should apply. In the 1970s, he continued, we famously put fluoride in the water supply, because we knew it would be great for dental health; now is the opportunity to put some fluoride into the internet. I add only this: let us not water down the fluoride to a point where it becomes feeble and ineffective.
Baroness Benjamin (LD)
My Lords, I will speak in support of the amendments in this group in the names of the intrepid noble Baroness, Lady Kidron, the noble Baroness, Lady Harding, and my noble friend Lord Storey—we are kindred spirits.
As my noble friend said, the expectations of parents are clear: they expect the Bill to protect their children from all harm online, wherever it is encountered. The vast majority of parents do not distinguish between the different content types. To restrict regulation to user-to-user services, as in Part 3, would leave a great many websites and content providers, which are accessed by children, standing outside the scope of the Bill. This is a flagship piece of legislation; there cannot be any loopholes leaving any part of the internet unregulated. If there is a website, app, online game, educational platform or blog—indeed, any content that contains harmful material—it must be in the scope of the Bill.
The noble Baroness, Lady Kidron, seeks to amend the Bill to ensure that it aligns with the Information Commissioner’s age-appropriate design code—it is a welcome amendment. As the Bill is currently drafted, the threshold for risk assessment is too high. It is important that the greatest number of children and young people are protected from harmful content online. The amendments achieve that to a greater degree than the protection already in the Bill.
While the proposal to align with the age-appropriate design code is welcome, I have one reservation. Up until recently, it appears that the ICO was reluctant to take action against pornography platforms that process children’s data. It has perhaps been deemed that pornographic websites are unlikely to be accessed by children. Over the years, I have shared with this House the statistics of how children are accessing pornography and the harm it causes. The Children’s Commissioner also recently highlighted the issue and concerns. Pornography is being accessed by our children, and we must ensure that the provisions of the Bill are the most robust they can be to ensure that children are protected online.
I am concerned with ensuring two things: first, that any platform that contains harmful material falls under the scope of the Bill and is regulated to ensure that children are kept safe; and, secondly, that, as far as possible, what is harmful offline is regulated in the same way online. The amendments in the name of my noble friend Lord Storey raise the important question of online-offline equality. Amendments 33A and 217A seek to regulate online video games to ensure they meet the same BBFC ratings as would be expected offline, and I agree with that approach. Later in Committee, I will raise this issue in relation to pornographic content and how online content should be subject to the same BBFC guidance as content offline. I agree with what my noble friend proposes: namely, that this should extend to video game content as well. Video games can be violent and sexualised in nature, and controls should be in place to ensure that children are protected. The BBFC guidelines used offline appear to be the best way to regulate online as well.
Children must be kept safe wherever they are online. This Bill must have the widest scope possible to keep children safe, but ensuring online/offline alignment is crucial. The best way to keep children safe is to legislate for regulation that is as far reaching as possible but consistently applied across the online/offline world. These are the reasons why I support the amendments in this group.
Baroness Berridge (Con)
My Lords, I will lend my support to Amendments 19 and 22. It is a pleasure to speak after the noble Baroness, Lady Benjamin. I may be one of those people in your Lordships’ House who relies significantly on the British Board of Film Classification for movie watching, as I am one of the faint-hearted.
In relation to app stores, it is not just children under 18 for whom parents need the age verification. If you are a parent of a child who has significant learning delay, the internet is a wonderful place where they can get access to material and have development that they might not ordinarily have had. But, of course, turning 17 or 18 is not the threshold for them. I have friends who have children with significant learning delay. Having that assurance, so they know which apps are which in the app store, goes well beyond 18 for them. Obviously it will not be a numerical equivalent for their child—now a young adult—but it is important to them to know that the content they get on a free app or an app purchased from the app store is suitable.
I just wanted to raise that with noble Lords, as children and some vulnerable adults—not all—would benefit from the kind of age verification that we have talked about. I appreciate the points that the noble Lord, Lord Allan, raised about where the Bill has ended up conceptually and the framework that Ofcom will rely on. Like him, I am a purist sometimes but, pragmatically, I think that the third concept raised by the noble Baroness, Lady Kidron, about protection and putting this in the app store and bringing it parallel with things such as classification for films and other video games is really important.
Lord Clement-Jones (LD)
My Lords, this has been a really fascinating debate and I need to put a stake in the ground pretty early on by saying that, although my noble friend Lord Allan has raised some important points and stimulated an important debate, I absolutely agree with the vast majority of noble Lords who have spoken in favour of the amendment so cogently put forward by the noble Baronesses, Lady Kidron and Lady Harding.
Particularly as a result of the Bill’s being the subject of a Joint Committee, it has changed considerably over time in response to comment, pressure, discussion and debate and I believe very much that during Committee stage we will be able to make changes, and I hope the Minister will be flexible enough. I do not believe that the framework of the Bill is set in concrete. There are many things we can do as we go through, particularly in the field of making children safer, if we take some of the amendments that have been put forward on board. In particular, the noble Baroness, Lady Kidron, set out why the current scope of the Bill will fail to protect children if it is kept to user-to-user and search services. She talked about blogs with limited functionalities, gaming without user functionalities and mentioned the whole immersive environment, which the noble Lord, Lord Russell, described as eye-watering. As she said, it is not fair to leave parents or children to work out whether they are on a regulated service. Children must be safe wherever they are online.
As someone who worked with the noble Baroness, Lady Kidron, in putting the appropriate design code in place in that original Data Protection Act, I am a fervent believer that it is perfectly appropriate to extend in the way that is proposed today. I also support her second amendment, which would bring the Bill’s child user condition in line with the threshold of the age-appropriate design code. It is the expectation—I do not think it an unfair expectation—of parents, teachers and children themselves that the Bill will apply to children wherever they are online. Regulating only certain services will mean that emerging technologies that do not fit the rather narrow categories will not be subject to safety duties.
Lord Knight of Weymouth (Lab)
My Lords, I echo the comments of the noble Lord, Lord Clement-Jones. This is an important group of amendments, and it has been a useful debate. I was slightly concerned when I heard the noble Baroness, Lady Harding, talk about using her daughter’s device to see whether it could access porn sites in terms of what that is going to do to her daughter’s algorithm and what it will now feed her. I will put that concern to one side, but any future report on that would be most welcome.
Amendments 2, 3 and 5, introduced so well by the noble Baroness, Lady Kidron, test what should be in scope to protect children. Clearly, we have a Bill that has evolved over some time, with many Ministers, to cover unambiguously social media, as user-to-user content, and search. I suspect that we will spend a lot more time discussing social media than search, but I get the rationale that those are perhaps the two main access points for a lot of the content we are concerned about. However, I would argue that apps are also main access points. I will come on to discuss the amendments in the name of the noble Baroness, Lady Harding, which I have also signed. If we are going to go with access points, it is worth probing and testing the Government’s intent in excluding some of these other things. The noble Lord, Lord Storey, raises in his amendments the issue of games, as others have done. Games are clearly a point of access for lots of children, as well as adults, and there is plenty of harm that can be created as a result of consuming them.
Along with some other noble Lords, some time ago I attended an all-party group which looked at the problems related to incel harm online and how people are breadcrumbed from mainstream sites to quite small websites to access the really problematic, most hateful and most dangerous content. Those small websites, as far as I can see, are currently excluded from the regime in the Bill, but the amendments in the name of the noble Baroness, Lady Kidron, potentially would bring them into scope. That meeting also discussed cloud services and the supply chain of the technical infrastructure that such risks, including incels and other things, use. Why are cloud services not included in some context in terms of the harms that might be created?
Questions have been asked about large language model AIs such as ChatGPT. These are future technologies that have now arrived, which lots of people are talking about and variously freaking out about or getting excited by. There is an important need to bring those quite quickly into the scope of regulation by Ofcom. ChatGPT is a privately owned platform—a privately owned technology—that is offering up not only access to the range of knowledge that is online but, essentially, the range of human concepts that are online in interaction with that knowledge—privately owned versions of truth.
What is to stop any very rich individual deciding to start their own large language model with their own version of the truth, perhaps using their own platform? Former President Trump comes to mind as someone who could do that and I suggest that, if truth is now a privatised thing, we might want to have some regulation here.
The future-proofing issues are why we should be looking very seriously at the amendments in the name of the noble Baroness, Lady Kidron. I listened carefully to the noble Lord, Lord Allan, as always, and I have reflected a lot on his very useful car safety and plane safety regulation analogy from our previous day in Committee. The proportionality issue that he raised in his useful contribution this time is potentially addressed by the proposed new clause we discussed last time. If the Bill sets out quite clearly the aim of the legislation, that would set the frame for the regulator and for how it would regulate proportionately the range of internet services that might be brought into scope by this set of amendments.
I also support Amendment 92, on bringing in safety by design and the regime that has been so successful in respect of the age-related design code and the probability of access by children, rather than what is set out in the Bill.
I turn to Amendments 19, 22, 298 and 299 in the names of the noble Baronesses, Lady Harding and Lady Stowell, the noble Lord, Lord Clement-Jones, and myself. Others, too, have drawn the analogy between app stores and corner shops selling alcohol, and it makes sense to think about the distribution points in the system—the pinch points that all users go through—and to see whether there is a viable way of protecting people and regulating through those pinch points. The Bill seeks to protect us via the platforms that host and promote content having regulation imposed on them, and risk assessments and so on, but it makes a lot of sense to add app stores, given how we now consume the internet.
I remember, all those years ago, having CD drives—floppy disk drives, even—in computers, and going off to buy software from a retail store and having to install it. I do not go quite as far back as the right reverend Prelate the Bishop of Oxford, but I remember those days well. Nowadays as consumers almost all of us access our software through app stores, be it software for our phones or software for our laptops. That is the distribution point for mobiles and essentially it is, as others have said, a duopoly that we hope will be addressed by the Digital Markets, Competition and Consumers Bill.
As others have said, 50% of children under 10 in this country use smartphones and tablets. When you get to the 12 to 15 bracket, you find that 97% of them use mobile phones and tablets. We have, as noble Lords have also said, Google Family Link and the Apple Family Sharing function. That is something we use in my family. My stepdaughter is 11—she will be 12 in June—and I appear to be in most cases the regulator who has to give her the Family Link code to go on to Google Classroom when she does her homework, and who has to allow her to download an app or add another contact—there is a whole range of things on her phone for which I provide the gatekeeper function. But you have to be relatively technically competent and confident to do all those things, and to manage her screen time, and I would like to see more protection for those who do not have that confidence—and indeed for myself as well, because maybe I would not have to be bothered quite as often.
It is worth noting that the vast majority of children in this country who have smartphones—the last time I looked at the stats, it was around 80%—have iPhones; there must be a lot of old iPhones that have been recycled down the family. To have an iCloud account, if you are under 13, you have to go through a parent or other suitable adult. However, if you are over 13, you can get on with it; that raises a whole set of issues and potential harms for children over the age of 13.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I share noble Lords’ determination to deliver the strongest protections for children and to develop a robust and future-proofed regulatory regime. However, it will not be possible to solve every problem on the internet through this Bill, nor through any piece of legislation, flagship or otherwise. The Bill has been designed to confer duties on the services that pose the greatest risk of harm—user-to-user services and search services—and where there are proportionate measures that companies can take to protect their users.
As the noble Baroness, Lady Kidron, and others anticipated, I must say that these services act as a gateway for users to discover and access other online content through search results and links shared on social media. Conferring duties on these services will therefore significantly reduce the risk of users going on to access illegal or harmful content on non-regulated services, while keeping the scope of the Bill manageable and enforceable.
As noble Lords anticipated, there is also a practical consideration for Ofcom in all this. I know that many noble Lords are extremely keen to see this Bill implemented as swiftly as possible; so am I. However, as the noble Lord, Lord Allan, rightly pointed out, making major changes to the Bill’s scope at this stage would have significant implications for Ofcom’s implementation timelines. I say this at the outset because I want to make sure that noble Lords are aware of those implications as we look at these issues.
I turn first to Amendments 2, 3, 5, 92 and 193, tabled by the noble Baroness, Lady Kidron. These aim to expand the number of services covered by the Bill to incorporate a broader range of services accessed by children and a broader range of harms. I will cover the broader range of harms more fully in a separate debate when we come to Amendment 93, but I am very grateful to the noble Baroness for her constructive and detailed discussions on these issues over the past few weeks and months.
These amendments would bring new services into scope of the duties beyond user-to-user and search services. This could include services which enable or promote commercial harms, including consumer businesses such as online retailers. As I have just mentioned in relation to the previous amendments, bringing many more services into scope would delay the implementation of Ofcom’s priorities and risk detracting from its work overseeing existing regulated services where the greatest risk of harm exists—we are talking here about the services run by about 2.5 million businesses in the UK alone. I hope noble Lords will appreciate from the recent communications from Ofcom how challenging the implementation timelines already are, without adding further complication.
Amendment 92 seeks to change the child-user condition in the children’s access assessment to the test in the age-appropriate design code. The test in the Bill is already aligned with the test in that code, which determines whether a service is likely to be accessed by children, in order to ensure consistency for providers. The current child-user condition determines that a service is likely to be accessed by children where it has a significant number or proportion of child users, or where it is of a kind likely to attract a significant number or proportion of child users. This will already bring into scope services of the kind set out in this amendment, such as those which are designed or intended for use by children, or where children form a—
Baroness Kidron (CB)
I am sorry to interrupt. Will the Minister take the opportunity to say what “significant” means, because that is not aligned with the ICO code, which has different criteria?
Lord Parkinson of Whitley Bay (Con)
If I can finish my point, this will bring into scope services of the kind set out in the amendments, such as those designed or intended for use by children, or where children form a substantial and identifiable user group. The current condition also considers the nature and content of the service and whether it has a particular appeal for children. Ofcom will be required to consult the Information Commissioner’s Office on its guidance to providers on fulfilling this test, which will further support alignment between the Bill and the age-appropriate design code.
On the meaning of “significant”, a significant number of children means a significant number in itself or a significant proportion of the total number of UK-based users on the service. In the Bill, “significant” has its ordinary meaning, and there are many precedents for it in legislation. Ofcom will be required to produce and publish guidance for providers on how to make the children’s access assessment. Crucially, the test in the Bill provides more legal certainty and clarity for providers than the test outlined in the code. “Substantive” and “identifiable”, as suggested in this amendment, do not have such a clear legal meaning, so this amendment would give rise to the risk that the condition is more open to challenge from providers and more difficult to enforce. On the other hand, as I said, “significant” has an established precedent in legislation, making it easier for Ofcom, providers and the courts to interpret.
The noble Lord, Lord Knight, talked about the importance of future-proofing the Bill and emerging technologies. As he knows, the Bill has been designed to be technology neutral and future-proofed, to ensure that it keeps pace with emerging technologies. It will apply to companies which enable users to share content online or to interact with each other, as well as to search services. Search services using AI-powered features will be in scope of the search duties. The Bill is also clear that content generated by AI bots is in scope where it interacts with user-generated content, such as bots on Twitter. The metaverse is also in scope of the Bill. Any service which enables users to interact as the metaverse does will have to conduct a child access test and comply with the child safety duties if it is likely to be accessed by children.
Lord Knight of Weymouth (Lab)
I know it has been said that the large language models, such as that used by ChatGPT, will be in scope when they are embedded in search, but are they in scope generally?
Lord Parkinson of Whitley Bay (Con)
They are when they apply to companies enabling users to share content online and interact with each other or in terms of search. They apply in the context of the other duties set out in the Bill.
Amendments 19, 22, 298 and 299, tabled by my noble friend Lady Harding of Winscombe, seek to impose child safety duties on application stores. I am grateful to my noble friend and others for the collaborative approach that they have shown and for the time that they have dedicated to discussing this issue since Second Reading. I appreciate that she has tabled these amendments in the spirit of facilitating a conversation, which I am willing to continue to have as the Bill progresses.
As my noble friend knows from our discussions, there are challenges with bringing application stores—or “app stores” as they are popularly called—into the scope of the Bill. Introducing new duties on such stores at this stage risks slowing the implementation of the existing child safety duties, in the way that I have just outlined. App stores operate differently from user-to-user and search services; they pose different levels of risk and play a different role in users’ experiences online. Ofcom would therefore need to recruit different people, or bring in new expertise, to supervise effectively a substantially different regime. That would take time and resources away from its existing priorities.
We do not think that that would be a worthwhile new route for Ofcom, given that placing child safety duties on app stores is unlikely to deliver any additional protections for children using services that are already in the scope of the Bill. Those services must already comply with their duties to keep children safe or will face enforcement action if they do not. If companies do not comply, Ofcom can rely on its existing enforcement powers to require app stores to remove applications that are harmful to children. I am happy to continue to discuss this matter with my noble friend and the noble Lord, Lord Knight, in the context of the differing implementation timelines, as he has asked.
Lord Stevenson of Balmacara (Lab)
The Minister just said something that was material to this debate. He said that Ofcom has existing powers to prevent app stores from providing material that would have caused problems for the services to which they allow access. Can he confirm that?
Lord Parkinson of Whitley Bay (Con)
Perhaps the noble Lord could clarify his question; I was too busy finishing my answer to the noble Lord, Lord Knight.
Lord Stevenson of Balmacara (Lab)
It is a continuation of the point raised by the noble Baroness, Lady Harding, and it seems that it will go part of the way towards resolving the differences that remain between the Minister and the noble Baroness, which I hope can be bridged. Let me put it this way: is it the case that Ofcom either now has powers or will have powers, as a result of the Bill, to require app stores to stop supplying children with material that is deemed in breach of the law? That may be the basis for understanding how you can get through this. Is that right?
Lord Parkinson of Whitley Bay (Con)
Services already have to comply with their duties to keep children safe. If they do not comply, Ofcom has powers of enforcement set out, which require app stores to remove applications that are harmful to children. We think this already addresses the point, but I am happy to continue discussing it offline with the noble Lord, my noble friend and others who want to explore how. As I say, we think this is already covered. A more general duty here would risk distracting from Ofcom’s existing priorities.
Lord Allan of Hallam (LD)
My Lords, on that point, my reading of Clauses 131 to 135, where the Bill sets out the business disruption measures, is that they could be used precisely in that way. It would be helpful for the Minister responding later to clarify that Ofcom would use those business disruption measures, as the Government explicitly anticipate, were an app store, in a rogue way, to continue to list a service that Ofcom has said should not be made available to people in the United Kingdom.
Lord Parkinson of Whitley Bay (Con)
I will be very happy to set that out in more detail.
Amendments 33A and 217A in the name of the noble Lord, Lord Storey, would place a new duty on user-to-user services that predominantly enable online gaming. Specifically, they would require them to have a classification certificate stating the age group for which they are suitable. We do not think that is necessary, given that there is already widespread, voluntary uptake of approval classification systems in online gaming.
Baroness Kidron (CB)
I thank the Minister for an excellent debate; I will make two points. First, I think the Minister was perhaps answering on my original amendment, which I have narrowed considerably to services
“likely to be accessed by children”
and with proven harm on the basis of the harms described by the Bill. It is an “and”, not an “or”, allowing Ofcom to go after places that have proven to be harmful.
Secondly, I am not sure the Government can have it both ways—that it is the same as the age-appropriate design code but different in these ways—because it is exactly in the ways that it is different that I am suggesting the Government might improve. We will come back to both those things.
Finally, what are we asking here? We are asking for a risk assessment. The Government say there is no risk assessment, no harm, no mitigation, nothing to do. This is a major principle of the conversations we will have going forward over a number of days. I also believe in proportionality. It is basic product safety; you have a look, you have standards, and if there is nothing to do, let us not make people do silly things. I think we will return to these issues, because they are clearly deeply felt, and they are very practical, and my own feeling is that we cannot risk thousands of children not benefiting from all the work that Ofcom is going to do. With that, I beg leave to withdraw.
Baroness Fox of Buckley
Member’s explanatory statement
This amendment replaces the two tests currently set out in subsection (5) of clause 3, relating to a service’s links with the United Kingdom, with a requirement that the service have at least a million monthly United Kingdom users.
Baroness Fox of Buckley (Non-Afl)
My Lords, in moving Amendment 4, I will also speak to Amendments 6 to 8 and 12 and consequential Amendments 288 and 305, largely grouped under the heading “exemptions”. In this group I am also particularly sympathetic to Amendment 9 in the names of the noble Lords, Moylan and Lord Vaizey, and I will leave them to motivate that. I look forward to hearing from the noble Lord, Lord Knight, an explanation for his Amendment 9A.
Last Wednesday we discussed the purposes of the Bill, and there was much agreement across the Chamber on one issue at least: that we need to stay focused and make sure that an already highly complex piece of legislation does not become even more unwieldy. My concern in general is that the Bill already suffers throughout from being overly broad in its aims, resulting in restricting the online experience and expressions of everyone. This series of amendments is about trying to rein in the scope, allowing us to focus on clear targets rather than a one-size-fits-all Bill that sweeps all in its wake with perhaps unintended and damaging consequences.
The Bill creates an extraordinary set of regulatory burdens on tens of thousands of British businesses, micro-communities and tech platforms, no matter the size. The impact assessment claims that 25,000 businesses are in scope, and that is considered a conservative estimate. This implies that an extraordinary range of platforms, from Mumsnet and Wikipedia to whisky-tasting forums and Reddit, will be caught up in this Bill. Can we find a way of removing the smaller platforms from scope? It will destroy too many of them if they have to comply with the regulatory burden created with huge Silicon Valley behemoths in mind.
Let us consider some of the regulatory duties that these entities are expected to comply with. They will need to undertake extensive assessments that must be repeated whenever a product changes. They will need to proactively remove certain types of content, involving assessing the risk of users encountering each type of illegal content, the speed of dissemination and functionality, the design of the platform and the nature and severity of the risk of harms presented to individual users. This will mean assessing their user base and implementing what are effectively surveillance systems to monitor all activity on their platforms.
Let us consider what a phrase such as “prevent from encountering” would mean to a web host such as Wikipedia. It would mean that it would need to scan and proactively analyse millions of edits across 250 languages for illegality under UK-specific law and then block content in defiance of the wishes of its own user community. There is much more, of course. Rest assured, Ofcom’s guidance and risk assessment will, over time, increase the regulatory complexity and the burdens involved.
Those technological challenges do not even consider the mountain of paperwork and administrative obligations that will be hugely costly and time consuming. All that might be achievable, if onerous, for larger platforms. But for smaller ones it could prove a significant problem, with SMEs and organisations working with a public benefit remit particularly vulnerable. Platforms with the largest profits and the most staff dedicated to compliance will, as a consequence, dominate at the expense of start-ups, small companies and community-run platforms.
No doubt the Government and the Minister will assure us that the duties are not so onerous and that they are manageable and proportionate. The impact assessment estimates that implementing the Bill will cost businesses £2.5 billion over the first 10 years, but all the commentators I have read think this is likely to be a substantial underestimate, especially when we are told in the same impact assessment that the legal advice is estimated to cost £39.23 per hour. I do not know what lawyers the Government hang out with, but they appear not to have a clue about the going rate for specialist law firms.
Also, what about the internal staff time? Again, the impact assessment assumes that staff will require only 30 minutes to familiarise themselves with the requirements of the legislation and 90 minutes to read, assess and change the terms and conditions in response to the requirements. Is this remotely serious? Even working through the groups of amendments has taken me hours. It has been like doing one of those 1,000-piece jigsaws, but at least at the end of those you get to see the complete picture. Instead, I felt as though somebody had come in and thrown all the pieces into the air again. I was as confused as ever.
If dealing with groups of amendments to this Bill is complex, that is nothing on the Bill itself, which is dense and often impenetrable. Last week, the Minister helpfully kept telling us to read the Explanatory Notes. I have done that several times and I am still in a muddle, yet somehow the staff of small tech companies will conquer all this and the associated regulatory changes in an hour and a half.
Many fear that this will replicate the worst horrors of GDPR, which, according to some estimates, led to an 8% reduction in the profits of smaller firms while it had little or no effect on the profits of large tech companies. That does not even take into account the cost of the near nervous breakdowns that GDPR caused small organisations, as I know from my colleagues at the Academy of Ideas.
These amendments try to tackle this disproportionate burden on smaller platforms—those companies that are, ironically, often useful challenges and antidotes to big tech’s dominance. The amendments would exempt them unless there is a good reason for specific platforms to be in scope. Of course, cutting out those in scope may not appeal to everyone here. From looking at the ever-increasing amendments list, it seems that some noble Lords have an appetite for expanding the number of services the legislation will apply to; we have already heard the discussion about app stores and online gaming. But we should note that the Government have carved out other exemptions for certain services that are excluded from the new regulatory system. They have not included emails, SMS messages, one-to-one oral communications and so on. I am suggesting some extra exemptions and that we remove services with fewer than 1 million monthly UK users. Ofcom would have the power to issue the provider with a notice bringing them into scope, but only based on reasonable grounds, having identified a safety risk and with 30 days’ notice.
If we do not tackle this, I fear that there is a substantial, serious and meaningful risk that smaller platforms based outside and inside the UK will become inaccessible to British users. It is notable that over 1,000 US news websites blocked European users during the EU’s introduction of GDPR, if noble Lords remember. Will there be a similar response to this law? What, for example, will the US search engine DuckDuckGo conclude? The search engine emphasises privacy and refuses to gather information on its users, meaning that it will be unable to fulfil the duties contained in the Bill of identifying or tailoring search results to users based on their age. Are we happy for it to go?
I fear that this Bill will reduce the number of tech platforms operating in the UK. This is anti-competitive. I do not say that because I have a particular commitment to competition and the free market, by the way. I do so because competition is essential and important for users’ choice and empowerment, and for free speech—something I fear the Bill is threatening. Indeed, the Lords’ Communications and Digital Committee’s extensive inquiry into the implications of giving large tech companies what is effectively a monopoly on defining which speech is free concluded:
“Increasing competition is crucial to promoting freedom of expression online. In a more competitive market, platforms would have to be more responsive to users’ concerns about freedom of expression and other rights”.
That is right. If users are concerned that a platform is failing to uphold their freedom of expression, they can join a different platform with greater ease if there is a wide choice. Conversely, users who are concerned that they do not want to view certain types of material would be more easily able to choose another platform that proscribes said material in its terms and conditions.
I beg to move the amendment as a way of defending diversity, choice and innovation—and as a feeble attempt to make the Bill proportionate.
Lord Moylan (Con)
My Lords, before I speak to my Amendment 9, which I will be able to do fairly briefly because a great deal of the material on which my case rests has already been given to the Committee by the noble Baroness, Lady Fox of Buckley, I will make the more general and reflective point that there are two different views in the Committee that somehow need to be reconciled over the next few weeks. There is a group of noble Lords who are understandably and passionately concerned about child safety. In fact, we all share that concern. There are others of us who believe that this Bill, its approach and the measures being inserted into it will have massive ramifications outside the field of child safety, for adults, of course, but also for businesses, as the noble Baroness explained. The noble Baroness and I, and others like us, believe that these are not sufficiently taken into account either by the Bill or by those pressing for measures to be harsher and more restrictive.
Some sort of balance needs to be found. At Second Reading my noble friend the Minister said that the balance had been struck in the right place. It is quite clear that nobody really agrees with that, except on the principle, which I think is always a cop-out, that if everyone disagrees with you, you must be right, which I have never logically understood in any sense at all. I hope my noble friend will not resort to claiming that he has got it right simply because everyone disagrees with him in different ways.
My amendment is motivated by the considerations set out by the noble Baroness, which I therefore do not need to repeat. It is the Government’s own assessment that between 20,000 and 25,000 businesses will be affected by the measures in this Bill. A great number of those—some four-fifths—are small businesses or micro-businesses. The Government appear to think in their assessment that only 120 of those are high risk. The reason they think they are high risk is not that they are engaged in unpleasant activities but simply that they are engaged in livestreaming and contacting new people. That might be for nefarious purposes but equally, it might not, so the 120 we need to worry about could actually be a very small number. We handle this already through our own laws; all these businesses would still be subject to existing data protection laws and complying with the law generally on what they are allowed to publish and broadcast. It would not be a free-for-all or a wild west, even among that very small number of businesses.
My Amendment 9 takes a slightly different approach to dealing with this. I do not in any way disagree with or denigrate the approach taken by the noble Baroness, Lady Fox, but my approach would be to add two categories to the list of exemptions in the schedules. The first of these is services provided by small and medium-sized enterprises. We do not have to define those because there is already a law that helps define them for us: Section 33 of the Small Business, Enterprise and Employment Act 2015. My proposal is that we take that definition, and that those businesses that comply with it be outside the scope of the Bill.
The second area that I would propose exempting was also referred to by the noble Baroness, Lady Fox of Buckley: community-based services. The largest of these, and the one that frequently annoys us because it gets things wrong, is Wikipedia. I am a great user of Wikipedia but I acknowledge that it does make errors. Of course, most of the errors it makes, such as saying, “Lord Moylan has a wart on the end of his nose”, would not be covered by the Bill anyway. Nothing in the Bill will force people to correct factual statements that have been got wrong—my year of birth or country of birth, or whatever. That is not covered. Those are the things they usually get wrong and that normally annoy us when we see them.
However, I do think that these services are extremely valuable. Wikipedia is an immense achievement and a tremendous source of knowledge and information for people. The fact that it has been put together in this organic, community-led way over a number of years, in so many languages, is a tremendous advantage and a great human advance. Yet, under the proposed changes, Wikipedia would not be able to operate its existing model of people posting their comments.
Currently, you go on Wikipedia and you can edit it. Now, I know this would not apply to any noble Lords but, in the other place, it has been suggested that MPs have discovered how to do this. They illicitly and secretly go on to and edit their own pages, usually in a flattering way, so it is possible to do this. There is no prior restraint, and no checking in advance. There are moderators at Wikipedia—I do not know whether they are employed—who review what has been done over a period, but they do not do what this Bill requires, which is checking in advance.
It is not simply about Wikipedia; there are other community sites. Is it sensible that Facebook should be responsible if a little old lady alters the information on a community Facebook page about what is happening in the local parish? Why should Facebook be held responsible for that? Why would we want it to be responsible for it—and how could it do it without effectively censoring ordinary activities that people want to carry out, using the advantages of the internet that have been so very great?
What I am asking is not dramatic. We have many laws in which we very sensibly create exemptions for small and medium-sized enterprises. I am simply asking that this law be considered under that heading as well, and similarly for Wikipedia and community-based sites. It is slightly unusual that we have had to consider that; it is not normal, but it is very relevant to this Bill and I very much hope the Government will agree to it.
The answer that I would not find satisfactory—I say this in advance for the benefit of my noble friend the Minister, in relation to this and a number of other amendments I shall be moving in Committee—is that it will all be dealt with by Ofcom. That would not be good enough. We are the legislators and we want to know how these issues will be dealt with, so that the legitimate objectives of the Bill can be achieved without causing massive disruption, cost and disbenefit to adults.
Lord Allan of Hallam (LD)
My Lords, I rise to speak in support of Amendment 9, tabled by the noble Lord, Lord Moylan, and in particular the proposed new paragraph 10A to Schedule 1. I hope I will find myself more in tune with the mood of the Committee on this amendment than on previous ones. I would be interested to know whether any noble Lords believe that Ofcom should be spending its limited resources supervising a site like Wikipedia under the new regime, as it seems to me patently obvious that that is not what we intend; it is not the purpose of the legislation.
The noble Lord, Lord Moylan, is right to remind us that one of the joys of the internet is that you buy an internet connection, plug it in and there is a vast array of free-to-use services which are a community benefit, produced by the community for the community, with no harm within them. What we do not want to do is interfere with or somehow disrupt that ecosystem. The noble Baroness, Lady Fox, is right to remind us that there is a genuine risk of people withdrawing from the UK market. We should not sidestep that. People who try to be law-abiding will look at these requirements and ask themselves, “Can I meet them?” If the Wikimedia Foundation that runs Wikipedia does not think it can offer its service in a lawful way, it will have to withdraw from the UK market. That would be to the detriment of children in the United Kingdom, and certainly not to their benefit.
There are principle-based and practical reasons why we do not want Ofcom to be operating in this space. The principle-based one is that it makes me uncomfortable that a Government would effectively tell their regulator how to manage neutral information sites such as Wikipedia. There are Governments around the world who seek to do that; we do not want to be one of those.
The amendment attempts to define this public interest, neutral, informational service. It happens to be user-to-user but it is not like Facebook, Instagram or anything similar. I would feel much more comfortable making it clear in law that we are not asking Ofcom to interfere with those kinds of services. The practical reason is the limited time Ofcom will have available. We do not want it to be spending time on things that are not important.
Definitions are another example of how, with the internet, it can often be extremely hard to draw bright lines. Functionalities bleed into each other. That is not necessarily a problem, until you try to write something into law; then, you find that your definition unintentionally captures a service that you did not intend to capture, or unintentionally misses out a service that you did intend to be in scope. I am sure the Minister will reject the amendment because that is what Ministers do; but I hope that, if he is not willing to accept it, he will at least look at whether there is scope within the Bill to make it clear that Wikipedia is intended to be outside it.
Paragraph 4 of Schedule 1 refers to “limited functionality services”. That is a rich vein to mine. It is clear that the intention is to exclude mainstream media, for example. It refers to “provider content”. In this context, Encyclopaedia Britannica is not in scope but Wikipedia is, the difference being that Wikipedia is constructed by users, while Encyclopaedia Britannica is regarded as being constructed by a provider. The Daily Mail is outside scope; indeed, all mainstream media are outside scope. Anyone who declares themselves to be media—we will debate this later on—is likely to be outside scope.
Such provider exemption should be offered to other, similar services, even if they happen to be constructed from the good will of users as opposed to a single professional author. I hope the Minister will be able to indicate that the political intent is not that we should ask Ofcom to spend time and energy regulating Wikipedia-like services. If so, can he point to where in the legislation we might get that helpful interpretation, in order to ensure that Ofcom is focused on what we want it to be focused on and not on much lower priority issues?
Baroness Kidron (CB)
I will speak to a couple of the amendments in this group. First, small is not safe, and you cannot necessarily see these platforms in isolation. For example, there is an incel group that has only 4,000 active users, but it posts a great deal on YouTube and has 24.2 million users in that context. So we have to be clear that small and safe are not the same thing.
However, I am sympathetic to the risk-based approach. I should probably have declared an interest as someone who has given money to Wikipedia on several occasions to keep it going. I ask the Minister for some clarity on the systems and processes of the Bill, and whether the risk profile of Wikipedia—which does not entice you in and then follow you for the next six months once you have looked at something—is far lower than something very small that gets hold of you and keeps on going. I say that particularly in relation to children, but I feel it for myself also.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I will speak to Amendment 4 in the name of the noble Baroness, Lady Fox of Buckley.
At Second Reading, my noble friend Lord Morrow raised the point that the Bill needs to cover all online pornography. A factsheet on the Bill, helpfully circulated to Peers last week by the Government, says:
“The Bill’s regulatory framework will cover all online sites with pornographic content, including commercial pornography sites, social media, video-sharing platforms and fora. It will also cover search engines, which play a significant role in enabling children to access pornography”.
This is a welcome commitment but I would like to explore it further.
The Government say “all”, but the definition of which services are in scope of the Bill, as set out in Clause 3(5) and Clause 71(4), requires that there are either
“a significant number of United Kingdom users, or … United Kingdom users form one of the target markets for the service (or the only target market)”.
At Second Reading, my noble friend Lord Morrow asked the Minister what will be considered as “significant”. Is it significant in terms of the total UK adult users who could use a service, or significant in terms of potential global users?
The noble Baroness, Lady Fox of Buckley, is exploring the same issue in her Amendment 4. She is proposing that the Bill’s current definition be replaced with something much easier to understand: that a site must have at least 1 million users per month in the UK to be within the scope of the Bill. That definition is certainly clear. However, I am looking forward to hearing whether it reflects the Government’s intention. For my part, I am concerned about what it might mean for clarifying which pornographic websites would fall into Part 3.
In December, the Government published an analysis carried out in January 2021 by the British Board of Film Classification on the top 200 pornographic websites. It reported that these 200 sites received 76% of the total UK visits to adult sites, based on data during August 2020. Ofcom published a similar list of the top 10 sites visited in September 2020—the site at number 10 had 3.8 million visitors. We do not know how many visitors there were to websites 100 or 200, but it is not unreasonable to speculate that it could be less than a million and would therefore fall outside the definition proposed by the noble Baroness, and nor is it clear whether those websites would fall within the Government’s original definition.
It is important for the Minister to tell the Committee quite clearly whether he expects the top 200 pornographic websites to be within the scope of Parts 3 and 5 of the Bill. If he does, I ask him to explain how that will be possible within the current definition in the Bill, not because I am trying to trip him up but as a genuine inquiry that the Bill does what we are expect it to do. If he does not expect the top 200 pornographic websites to be in scope, how many does he estimate would fall within Parts 3 and 5? Either way, it seems to me that there could be pornographic websites accessed in the United Kingdom that are not required to have age verification to protect those aged under 18 from accessing this content.
As I said, I doubt that this is what parents expect from this flagship Bill, especially as the Government set out in their factsheet that their own commissioned evidence says,
“exposure to pornography may impact children's perceptions of sex and relationships, may lead to replication of practices found in pornography, increased likelihood of engaging in sexual activities and harmful or aggressive behaviour, and reduced concern for consent from partners”.
It seems to me that “significant” should focus on the significant harm a website or content provider would cause if it were accessed in the UK. The number of visitors or popularity of the site should be irrelevant when considering whether or not children should be allowed to access it. My view is quite simple: if a website, social media or content provider wishes to host pornographic material, that is of potential significant harm to children and should be age-verified. I am therefore interested, given what the Government have said previously, to know whether the Minister agrees that all pornographic content must be age-verified if it is to be accessed in the UK. That is certainly what I believe most parents expect, and I will listen carefully to the Minister’s response.
Lord Strathcarron (Con)
I will speak in support of my noble friend Lord Moylan and Amendment 9. I declare an interest as an author and publisher.
Last week, we had the London Book Fair, and proposed new paragraph 10A could read almost like an executive summary of the main talking point, which was how AI will influence all aspects of the media but particularly publishing. For the sake of future-proofing, paragraph 10A would be a particularly useful step to adopt. Proposed new paragraph 10B would be in the interest of fairness because publishing, and a lot of media, is made up of micro-businesses, often one-man or one-woman companies. This is certain to happen with AI as well, as the intermediary roles are taken up by these. In the interest of future-proofing and fairness, I recommend this amendment.
Lord Vaizey of Didcot (Con)
My Lords, as my name is on Amendment 9, I speak to support these amendments and say that they are worthy of debate. As your Lordships know, I am extremely supportive of the Bill and hope that it will be passed in short order. It is much needed and overdue that we have the opportunity for legislation to provide us with a regulator that is able to hold platforms to account, protect users where it can and enhance child safety online. I can think of no better regulator for that role than Ofcom.
I have listened to the debate with great interest. Although I support the intentions of my noble friend Lord Moylan’s amendment, I am not sure I agree with him that there are two cultures in this House, as far as the Bill is concerned; I think everybody is concerned about child safety. However, these amendments are right to draw attention to the huge regulatory burden that this legislation can potentially bring, and to the inadvertent bad consequences it will bring for many of the sites that we all depend upon and use.
I have not signed many amendments that have been tabled in this Committee because I have grown increasingly concerned, as has been said by many others, that the Bill has become a bit like the proverbial Christmas tree where everyone hangs their own specific concern on to the legislation, turning it into something increasingly unwieldy and difficult to navigate. I thought the noble Baroness, Lady Fox, put it extremely well when she effectively brought to life what it would be like to run a small website and have to comply with this legislation. That is not to say that certain elements of micro-tweaking are not welcome—for example, the amendment by the noble Baroness, Lady Kidron, on giving coroners access to data—but we should be concerned about the scope of the Bill and the burden that it may well put on individual websites.
This is in effect the Wikipedia amendment, put forward and written in a sort of wiki way by this House—a probing amendment in Committee to explore how we can find the right balance between giving Ofcom the powers it needs to hold platforms to account and not unduly burdening websites that all of us agree present a very low risk and whose provenance, if you like, does not fit easily within the scope of the Bill.
I keep saying that I disagree with my noble friend Lord Moylan. I do not—I think he is one of the finest Members of this House—but, while it is our job to provide legislation to set the framework for how Ofcom regulates, we in this House should also recognise that in the real world, as I have also said before, this legislation is simply going to be the end of the beginning. Ofcom will have to find its way forward in how it exercises the powers that Parliament gives it, and I suspect it will have its own list of priorities in how it approaches these issues, who it decides to hold to account and who it decides to enforce against. A lot of its powers will rest not simply on the legislation that we give it but on the relationship that it builds with the platforms it is seeking to regulate.
For example, I have hosted a number of lunches for Google in this House with interested Peers, and it has been interesting to get that company’s insight into its working relationship with Ofcom. By the way, I am by no means suggesting that that is a cosy relationship, but it is at least a relationship where the two sides are talking to each other, and that is how the effectiveness of these powers will be explored.
I urge noble Lords to take these amendments seriously and take what the spirit of the amendments is seeking to put forward, which is to be mindful of the regulatory burden that the Bill imposes; to be aware that the Bill will not, simply by being passed, solve the kinds of issues that we are seeking to tackle in terms of the most egregious content that we find on the internet; and that, effectively, Ofcom’s task once this legislation is passed will be the language of priorities.
Baroness Harding of Winscombe (Con)
My Lords, this is not the first time in this Committee, and I suspect it will not be the last, when I rise to stand somewhere between my noble friend Lord Vaizey and the noble Baroness, Lady Kidron. I am very taken by her focus on risk assessments and by the passionate defences of Wikipedia that we have heard, which really are grounded in a sort of commoner’s risk assessment that we can all understand.
Although I have sympathy with the concerns of the noble Baroness, Lady Fox, about small and medium-sized businesses being overburdened by regulation, I am less taken with the amendments on that subject precisely because small tech businesses become big tech businesses extremely quickly. It is worth pointing out that TikTok did not even exist when Parliament began debating this Bill. I wonder what our social media landscape would have been like if the Bill had existed in law before social media started. We as a country should want global tech companies to be born in the UK, but we want their founders—who, sadly, even today, are predominantly young white men who do not yet have children—to think carefully about the risks inherent in the services they are creating, and we know we need to do that at the beginning of those tech companies’ journeys, not once they have reached 1 million users a month.
While I have sympathy with the desire of the noble Baroness, Lady Fox, not to overburden, just as my noble friend Lord Vaizey has said, we should take our lead from the intervention of the noble Baroness, Lady Kidron: we need a risk assessment even for small and medium-sized businesses. It just needs to be a risk assessment that is fit for their size.
Lord Clement-Jones (LD)
My Lords, it is a pleasure to follow the noble Baroness, Lady Harding. If one is permitted to say this in the digital age, I am on exactly the same page as she is.
There are two elements to the debate on this group. It is partly about compliance, and I absolutely understand the point about the costs of that, but I also take comfort from some of the things that the noble Lord. Lord Vaizey, said about the way that Ofcom is going to deliver the regulation and the very fact that this is going to be largely not a question of interpretation of the Act, when it comes down to it, but is going to be about working with the codes of practice. That will be a lot more user-friendly than simply having to go to expensive expert lawyers, as the noble Baroness, Lady Fox, said—not that I have anything against expensive expert lawyers.
I am absolutely in agreement with the noble Baroness, Lady Kidron, that small is not safe. As the noble Baroness, Lady Harding, described, small can become big. We looked at this in our Joint Committee and recommended to the Government that they should take a more nuanced approach to regulation, based not just on size and high-level functionality but on factors such as risk, reach, user base, safety performance and business model. All those are extremely relevant but risk is the key, right at the beginning. The noble Baroness, Lady Fox, also said that Reddit should potentially be outside, but Reddit has had its own problems, as we know. On that front, I am on absolutely the same page as those who have spoken about keeping us where we are.
The noble Lord, Lord Moylan, has been very cunning in the way that he has drawn up his Amendment 9. I am delighted to be on the same page as my noble friend —we are making progress—but I agree only with the first half of the amendment because, like the noble Baroness, Lady Kidron, I am a financial contributor to Wikipedia. A lot of us depend on Wikipedia; we look up the ages of various Members of this House when we see them in full flight and think, “Good heavens!” Biographies are an important part of this area. We have all had Jimmy Wales saying, as soon as we get on to Wikipedia, “You’ve already looked at Wikipedia 50 times this month. Make a contribution”, and that is irresistible. There is quite a strong case there. It is risk-based so it is not inconsistent with the line taken by a number of noble Lords in all this. I very much hope that we can get something out of the Minister—maybe some sort of sympathetic noises for a change—at this stage so that we can work up something.
I must admit that the briefing from Wikimedia, which many of us have had, was quite alarming. If the Bill means that we do not have users in high-risk places then we will find that adults get their information from other sources that are not as accurate as Wikipedia —maybe from ChatGPT or GPT-4, which the noble Lord, Lord Knight, is clearly very much an expert in—and that marginalised websites are shut down.
Lord Allan of Hallam (LD)
For me, one of the features of the schedule’s list of exempted sites is foreign state entities. Therefore, we could end up in the absurd situation where you could not read about the Ukraine war on Wikipedia, but you would be able to read about the Ukraine war on the Russian Government website.
Lord Clement-Jones (LD)
My Lords, if we needed an example of something that gave us cause for concern, that would be it; but a very good case has been made, certainly for the first half of the amendment in the name of the noble Lord, Lord Moylan, and we on these Benches support it.
Baroness Merron (Lab)
My Lords, it has certainly been an interesting debate, and I am grateful to noble Lords on all sides of the Committee for their contributions and considerations. I particularly thank the noble Lords who tabled the amendments which have shaped the debate today.
In general, on these Benches, we believe that the Bill offers a proportionate approach to tackling online harms. We feel that granting some of the exemptions proposed in this group would be unintentionally counterproductive and would raise some unforeseen difficulties. The key here—and it has been raised by a number of noble Lords, including the noble Baronesses, Lady Harding and Lady Kidron, and, just now, the noble Lord, Lord Clement-Jones, who talked about the wider considerations of the Joint Committee and factors that should be taken into account—is that we endorse a risk-based approach. In this debate, it is very important that we take ourselves back to that, because that is the key.
My view is that using other factors, such as funding sources or volunteer engagement in moderation, cuts right across this risk-based approach. To refer to Amendment 4, it is absolutely the case that platforms with fewer than 1 million UK monthly users have scope to create considerable harm. Indeed, noble Lords will have seen that later amendments call for certain small platforms to be categorised on the basis of the risk—and that is the important word—that they engender, rather than the size of the platform, which, unfortunately, is something of a crude measure. The point that I want to make to the noble Baroness, Lady Fox, is that it is not about the size of the businesses and how they are categorised but what they actually do. The noble Baroness, Lady Kidron, rightly said that small is not safe, for all the reasons that were explained, including by the noble Baroness, Lady Harding.
Amendment 9 would exempt small and medium-sized enterprises and certain other organisations from most of the Bill’s provisions. I am in no doubt about the well-meaning nature of this amendment, tabled by the noble Lord, Lord Moylan, and supported by the noble Lord, Lord Vaizey. Indeed, there may well be an issue about how start-ups and entrepreneur unicorns cope with the regulatory framework. We should attend to that, and I am sure that the Minister will have something to say about it. But I also expect that the Minister will outline why this would actually be unhelpful in combating many of the issues that this Bill is fundamentally designed to deal with if we were to go down the road of these exclusions.
In particular, granting exemptions simply on the basis of a service’s size could lead to a situation where user numbers are capped or perhaps even where platforms are deliberately broken up to avoid regulation. This would have an effect that none of us in this Chamber would want to see because it would embed harmful content and behaviour rather than helping to reduce them.
Referring back to the comments of the noble Lord, Lord Moylan, I agree with the noble Lord, Lord Vaizey, in his reflection. I, too, have not experienced the two sides of the Chamber that the noble Lord, Lord Moylan, described. I feel that the Chamber has always been united on the matter of child safety and in understanding the ramifications for business. It is the case that good legislation must always seek a balance, but, to go back to the point about excluding small and medium-sized enterprises, to call them a major part of the British economy is a bit of an understatement when they account for 99.9% of the business population. In respect of the exclusion of community-based services, including Wikipedia—and we will return to this in the next group—there is nothing for platforms to fear if they have appropriate systems in place. Indeed, there are many gains to be had for community-based services such as Wikipedia from being inside the system. I look forward to the further debate that we will have on that.
I turn to Amendment 9A in the name of my noble friend Lord Knight of Weymouth, who is unable to participate in this section of the debate. It probes how the Bill’s measures would apply to specialised search services. Metasearch engines such as Skyscanner have expressed concern that the legislation might impose unnecessary burdens on services that pose little risk of hosting the illegal content targeted by the Bill. Perhaps the Minister, in his response, could confirm whether or not such search engines are in scope. That would perhaps be helpful to our deliberations today.
While we on these Benches are not generally supportive of exemptions, the reality is that there are a number of online search services that return content that would not ordinarily be considered harmful. Sites such as Skyscanner and Expedia, as we all know, allow people to search for and book flights and other travel services such as car hire. Obviously, as long as appropriate due diligence is carried out on partners and travel agents, the scope for users to encounter illegal or harmful material appears to be minimal and returns us to the point of having a risk-based approach. We are not necessarily advocating for a carve-out from the Bill, but it would perhaps be helpful to our deliberations if the Minister could outline how such platforms will be expected to interact with the Ofcom-run online safety regime.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am sympathetic to arguments that we must avoid imposing disproportionate burdens on regulated services, but I cannot accept the amendments tabled by the noble Baroness, Lady Fox, and others. Doing so would greatly reduce the strong protections that the Bill offers to internet users, particularly to children. I agree with the noble Baroness, Lady Merron, that that has long been the shared focus across your Lordships’ House as we seek to strike the right balance through the Bill. I hope to reassure noble Lords about the justification for the existing balance and scope, and the safeguards built in to prevent undue burdens to business.
I will start with the amendments tabled by the noble Baroness, Lady Fox of Buckley—Amendments 4, 6 to 8, 12, 288 and 305—which would significantly narrow the definition of services in scope of regulation. The current scope of the Bill reflects evidence of where harm is manifested online. There is clear evidence that smaller services can pose a significant risk of harm from illegal content, as well as to children, as the noble Baroness, Lady Kidron, rightly echoed. Moreover, harmful content and activity often range across a number of services. While illegal content or activity may originate on larger platforms, offenders often seek to move to smaller platforms with less effective systems for tackling criminal activity in order to circumvent those protections. Exempting smaller services from regulation would likely accelerate that process, resulting in illegal content being displaced on to smaller services, putting users at risk.
These amendments would create significant new loopholes in regulation. Rather than relying on platforms and search services to identify and manage risk proactively, they would require Ofcom to monitor smaller harmful services, which would further annoy my noble friend Lord Moylan. Let me reassure the noble Baroness, however, that the Bill has been designed to avoid disproportionate or unnecessary burdens on smaller services. All duties on services are proportionate to the risk of harm and the capacity of companies. This means that small, low-risk services will have minimal duties imposed on them. Ofcom’s guidance and codes of practice will set out how they can comply with their duties, in a way that I hope is even clearer than the Explanatory Notes to the Bill, but certainly allowing for companies to have a conversation and ask for areas of clarification, if that is still needed. They will ensure that low-risk services do not have to undertake unnecessary measures if they do not pose a risk of harm to their users.
Lord Moylan (Con)
My Lords, while my noble friend is talking about the possibility of excessive and disproportionate burden on businesses, can I just ask him about the possibility of excessive and disproportionate burden on the regulator? He seems to be saying that Ofcom is going to have to maintain, and keep up to date regularly, 25,000 risk assessments—this is on the Government’s own assessment, produced 15 months ago, of the state of the market then—even if those assessments carried out by Ofcom result in very little consequence for the regulated entity.
We know from regulation in this country that regulators already cannot cope with the burdens placed on them. They become inefficient, sclerotic and unresponsive; they have difficulty in recruiting staff of the same level and skills as the entities that they regulate. We have a Financial Services and Markets Bill going through at the moment, and the FCA is a very good example of that. Do we really think that this is a sensible burden to place on a regulator that is actually able to discharge it?
Lord Parkinson of Whitley Bay (Con)
The Bill creates a substantial new role for Ofcom, but it has already substantially recruited and prepared for the effective carrying out of that new duty. I do not know whether my noble friend was in some of the briefings with officials from Ofcom, but it is very happy to set out directly the ways in which it is already discharging, or preparing to discharge, those duties. The Government have provided it with further resource to enable it to do so. It may be helpful for my noble friend to have some of those discussions directly with the regulator, but we are confident that it is ready to discharge its duties, as set out in the Bill.
I was about to say that we have already had a bit of discussion on Wikipedia. I am conscious that we are going to touch on it again in the debate on the next group of amendments so, at the risk of being marked down for repetition, which is a black mark on that platform, I shall not pre-empt what I will say shortly. But I emphasise that the Bill does not impose prescriptive, one-size-fits-all duties on services. The codes of practice from Ofcom will set out a range of measures that are appropriate for different types of services in scope. Companies can follow their own routes to compliance, so long as they are confident that they are effectively managing risks associated with legal content and, where relevant, harm to children. That will ensure that services that already use community moderation effectively can continue to do so—such as Wikipedia, which successfully uses that to moderate content. As I say, we will touch on that more in the debate on the next group.
Amendment 9, in the name of my noble friend Lord Moylan, is designed to exempt small and medium sized-enterprises working to benefit the public from the scope of the Bill. Again, I am sympathetic to the objective of ensuring that the Bill does not impose undue burdens on small businesses, and particularly that it should not inhibit services from providing valuable content of public benefit, but I do not think it would be feasible to exempt service providers deemed to be
“working to benefit the public”.
I appreciate that this is a probing amendment, but the wording that my noble friend has alighted on highlights the difficulties of finding something suitably precise and not contestable. It would be challenging to identify which services should qualify for such an exemption.
Taking small services out of scope would significantly undermine the framework established by the Bill, as we know that many smaller services host illegal content and pose a threat to children. Again, let me reassure noble Lords that the Bill has been designed to avoid disproportionate or unnecessary regulatory burdens on small and low-risk services. It will not impose a disproportionate burden on services or impede users’ access to value content on smaller services.
Amendment 9A in the name of the noble Lord, Lord Knight of Weymouth, is designed to exempt “sector specific search services” from the scope of the Bill, as the noble Baroness, Lady Merron, explained. Again, I am sympathetic to the intention here of ensuring that the Bill does not impose a disproportionate burden on services, but this is another amendment that is not needed as it would exempt search services that may pose a significant risk of harm to children, or because of illegal content on them. The amendment aims to exempt specialised search services—that is, those that allow users to
“search for … products or services … in a particular sector”.
It would exempt specialised search services that could cause harm to children or host illegal content—for example, pornographic search services or commercial search services that could facilitate online fraud. I know the noble Lord would not want to see that.
The regulatory duties apply only where there is a significant risk of harm and the scope has been designed to exclude low-risk search services. The duties therefore do not apply to search engines that search a single database or website, for example those of many retailers or other commercial websites. Even where a search service is in scope, the duties on services are proportionate to the risk of harm that they pose to users, as well as to a company’s size and capacity. Low-risk services, for example, will have minimal duties. Ofcom will ensure that these services can quickly and easily comply by publishing risk profiles for low-risk services, enabling them easily to understand their risk levels and, if necessary, take steps to mitigate them.
The noble Lord, Lord McCrea, asked some questions about the 200 most popular pornographic websites. If I may, I will respond to the questions he posed, along with others that I am sure will come in the debate on the fifth group, when we debate the amendments in the names of the noble Lord, Lord Morrow, and the noble Baroness, Lady Ritchie of Downpatrick, because that will take us on to the same territory.
I hope that provides some assurance to my noble friend Lord Moylan, the noble Baroness, Lady Fox, and others, and that they will be willing not to press their amendments in this group.
Baroness Fox of Buckley (Non-Afl)
My Lords, I thank people for such a wide-ranging and interesting set of contributions. I take comfort from the fact that so many people understood what the amendments were trying to do, even if they did not fully succeed in that. I thought it was quite interesting that in the first debate the noble Lord, Lord Allan of Hallam, said that he might be a bit isolated on the apps, but I actually agreed with him—which might not do his reputation any good. However, when he said that, I thought, “Welcome to my world”, so I am quite pleased that this has not all been shot down in flames before we started. My amendment really was a serious attempt to tackle something that is a real problem.
The Minister says that the Bill is designed to avoid disproportionate burdens on services. All I can say is, “Sack the designer”. It is absolutely going to have a disproportionate burden on a wide range of small services, which will not be able to cope, and that is why so many of them are worried about it. Some 80% of the companies that will be caught up in this red tape are small and micro-businesses. I will come to the small business point in a moment.
The noble Baroness, Lady Harding, warned us that small tech businesses become big tech businesses. As far as I am concerned, that is a success story—it is what I want; is it not what we all want? Personally, I think economic development and growth is a positive thing—I do not want them to fail. However, I do not think it will ever happen; I do not think that small tech businesses will ever grow into big tech businesses if they face a disproportionate burden in the regulatory sense, as I have tried to describe. That is what I am worried about, and it is not a positive thing to be celebrated.
I stress that it is not small tech and big tech. There are also community sites, based on collective moderation. Wikipedia has had a lot of discussion here. For a Bill that stresses that it wants to empower users, we should think about what it means when these user-moderated community sites are telling us that they will not be able to carry on and get through. That is what they are saying. It was interesting that the noble Lord, Lord Clement-Jones, said that he relies on Wikipedia—many of us do, although please do not believe what it says about me. There are all of these things, but then there was a feeling that, well, Reddit is a bit dodgy. The Bill is not meant to be deciding which ones to trust in quite that way, or people’s tastes.
I was struck that the noble Baroness, Lady Kidron, said that small is not safe, and used the incel example. I am not emphasising that small is safe; I am saying that the small entities will not survive this process. That is my fear. I do not mean that the big ones are nasty and dangerous and the small ones are cosy, lovely and Wikipedia-like. I am suggesting that smaller entities will not be able to survive the regulatory onslaught. That is the main reason I raised this.
The noble Baroness, Lady Merron, said that these entities can cause great harm. I am worried about a culture of fear, in which we demonise tens of thousands of innocent tech businesses and communities and end up destroying them when we do not intend to. I tried to put in the amendment an ability for Ofcom, if there are problematic sites that are risky, to deal with them. As the Minister kept saying, low-risk search engines have been exempted. I am suggesting that low-risk small and micro-businesses are exempted, which is the majority of them. That is what I am suggesting, rather than that we assume they are all guilty and then they have to get exempted.
Interestingly, the noble Lord, Lord McCrea, asked how many pornography sites are in scope and which pornographic websites have a million or fewer users. I am glad I do not know the answer to that, otherwise people might wonder why I did. The point is that there are always going to be sites that are threatening or a risk to children, as we are discussing. But we must always bear in mind—this was the important point that the noble Lord, Lord Moylan, made—that in our absolute determination to protect children via this Bill we do not unintendedly damage society as a whole. Adult access to free speech, for example, is one of my concerns, as are businesses and so on. We should not have that as an outcome.
Lord Moylan
“(2A) This Act does not apply in relation to moderation actions taken, or not taken, by users of a Part 3 service.”Member’s explanatory statement
The drafting of some Bill provisions, such as Clauses 17(4)(c) or 65(1), leaves room for debate as to whether community moderation gives rise to liability and obligations for the provider. This amendment, along with the other amendment to Clause 4 in the name of Lord Moylan, clarifies that moderation carried out by the public, for example on Wikipedia, is not fettered by this Bill.
Lord Moylan (Con)
My Lords, I have to start with a slightly unprofessional confession. I accepted the Bill team’s suggestion on how my amendments might be grouped after I had grouped them rather differently. The result is that I am not entirely clear why some of these groupings are quite as they are. As my noble friend the Minister said, my original idea of having Amendments 9, 10 and 11 together would perhaps have been better, as it would have allowed him to give a single response on Wikipedia. Amendments 10 and 11 in this group relate to Wikipedia and services like it.
I am, I hope, going to cause the Committee some relief as I do not intend to repeat remarks made in the previous group. The extent to which my noble friend wishes to amplify his comments in response to the previous group is entirely a matter for him, since he said he was reserving matter that he would like to bring forward but did not when commenting on the previous group. If I do not speak further on Amendments 10 and 11, it is not because I am not interested in what my noble friend the Minister might have to say on the topic of Wikipedia.
To keep this fairly brief, I turn to Amendment 26 on age verification. I think we have all agreed in the Chamber that we are united in wanting to see children kept safe. On page 10 of the Bill, in Clause 11(3), it states that there will be a duty to
“prevent children of any age from encountering”
this content—“prevent” them “encountering” is extremely strong. We do not prevent children encountering the possibility of buying cigarettes or encountering the possibility of being injured crossing the road, but we are to prevent children from these encounters. It is strongly urged in the clause—it is given as an example—that age verification will be required for that purpose.
Of course, age verification works only if it applies to everybody: one does not ask just the children to prove their age; one has to ask everybody online. Unlike when I go to the bar in a pub, my grey hair cannot be seen online. So this provision will almost certainly have to extend to the entire population. In Clause 11(3)(b), we have an obligation to protect. Clearly, the Government intend a difference between “prevent” and “protect”, or they would not have used two different verbs, so can my noble friend the Minister explain what is meant by the distinction between “prevent” and “protect”?
My amendment would remove Clause 11(3) completely. But it is, in essence, a probing amendment and what I want to hear from the Government, apart from how they interpret the difference between “prevent” and “protect”, is how they expect this duty to be carried out without having astonishingly annoying and deterring features built into every user-to-user platform and website, so that every time one goes on Wikipedia—in addition to dealing with the GDPR, accepting cookies and all the other nonsense we have to go through quite pointlessly—we then have to provide age verification of some sort.
What mechanism that might be, I do not know. I am sure that there are many mechanisms available for age verification. I do not wish to get into a technical discussion about what particular techniques might be used—I accept that there will be a range and that they will respond and adapt in the light of demand and technological advance—but I would like to know what my noble friend the Minister expects and how wide he thinks the obligation will be. Will it be on the entire population, as I suspect? Focusing on that amendment—and leaving the others to my noble friend the Minister to respond to as he sees fit—and raising those questions, I think that the Committee would like to know how the Government imagine that this provision will work. I beg to move.
Lord Allan of Hallam (LD)
My Lords, I will speak to the amendments in the name of the noble Lord, Lord Moylan, on moderation, which I think are more important than he has given himself credit for—they go more broadly than just Wikipedia.
There is a lot of emphasis on platform moderation, but the reality is that most moderation of online content is done by users, either individually or in groups, acting as groups in the space where they operate. The typical example, which many Members of this House have experienced, is when you post something and somebody asks, “Did you mean to post that?”, and you say, “Oh gosh, no”, and then delete it. A Member in the other place has recently experienced a rather high-profile example of that through the medium of the newspaper. On a much smaller scale, it is absolutely typical that people take down content every day, either because they regret it or, quite often, because their friends, families or communities tell them that it was unwise. That is the most effective form of moderation, because it is the way that people learn to change their behaviour online, as opposed to the experience of a platform removing content, which is often experienced as the big bad hand of the platform. The person does not learn to change their behaviour, so, in some cases, it can reinforce bad behaviour.
Community moderation, not just on Wikipedia but across the internet, is an enormous public good, and the last thing that we want to do in this legislation is to discourage people from doing it. In online spaces, that is often a volunteer activity: people give up their time to try to keep a space safe and within the guidelines they have set for that space. The noble Lord, Lord Moylan, has touched on a really important area: in the Bill, we must be absolutely clear to those volunteers that we will not create all kinds of new legal operations and liabilities on them. These are responsible people, so, if they are advised that they will incur all kinds of legal risk when trying to comply with the Online Safety Bill, they will stop doing the moderation—and then we will all suffer.
On age-gating, we will move to a series of amendments where we will discuss age assurance, but I will say at the outset, as a teaser to those longer debates, that I have sympathy with the points made by the noble Lord, Lord Moylan. He mentioned pubs—we often talk about real-world analogies. In most of the public spaces we enter in the real world, nobody does any ID checking or age checking; we take it on trust, unless and until you carry out an action, such as buying alcohol, which requires an age check.
It is legitimate to raise this question, because where we fall in this debate will depend on how we see public spaces. I see a general-purpose social network as equivalent to walking into a pub or a town square, so I do not expect to have my age and ID checked at the point at which I enter that public space. I might accept that my ID is checked at a certain point where I carry out various actions. Others will disagree and will say that the space should be checked as soon as you go into it—that is the boundary of the debate we will have across a few groups. As a liberal, I am certainly on the side that says that it is incumbent on the person wanting to impose the extra checks to justify them. We should not just assume that extra checks are cost-free and beneficial; they have a cost for us all, and it should be imposed only where there is a reasonable justification.
Baroness Kidron (CB)
Far be it for me to suggest that all the amendments tabled by the noble Lord, Lord Moylan, are in the wrong place, but I think that Amendment 26 might have been better debated with the other amendments on age assurance.
On community moderation, I underscore the point that Ofcom must have a risk profile as part of its operations. When we get to that subject, let us understand what Ofcom intends to do with it—maybe we should instruct Ofcom a little about what we would like it to do with it for community moderation. I have a lot of sympathy—but do not think it is a get-out clause—with seeing some spaces as less risky, or, at least, for determining what risky looks like in online spaces, which is a different question. This issue belongs in the risk profile: it is not about taking things out; we have to build it into the Bill we have.
On age assurance and AV, I do not think that today is the day to discuss it in full. I disagree with the point that, because we are checking kids, we have to check ourselves—that is not where the technology is. Without descending into technical arguments, as the noble Lord, Lord Moylan, asked us not to, we will bring some of those issues forward.
The noble Lords, Lord Bethell and Lord Stevenson, and the right reverend Prelate the Bishop of Oxford have a package of amendments which are very widely supported across the Committee. They have put forward a schedule of age assurance that says what the rules of the road are. We must stop pretending that age assurance is something that is being invented now in this Bill. If you log into a website with your Facebook login, it shares your age—and that is used by 42% of people online. However, if you use an Apple login, it does not share your age, so I recommend using Apple—but, interestingly, it is harder to find that option on websites, because websites want to know your age.
So, first, we must not treat age assurance as if it has just been invented. Secondly, we need to start to have rules of the road, and ask what is acceptable, what is proportionate, and when we will have zero tolerance. Watching faces around the Committee, I say that I will accept zero tolerance for pornography and some other major subjects, but, for the most part, age assurance is something that we need to have regulated. Currently, it is being done to us rather than in any way that is transparent or agreed, and that is very problematic.
Baroness Finlay of Llandaff (CB)
My Lords, I hesitated to speak to the previous group of amendments, but I want to speak in support of the issue of risk that my noble friend Lady Kidron raised again in this group of amendments. I do not believe that noble Lords in the Committee want to cut down the amount of information and the ability to obtain information online. Rather, we came to the Bill wanting to avoid some of the really terrible harms promoted by some websites which hook into people’s vulnerability to becoming addicted to extremely harmful behaviours, which are harmful not only to themselves but to other people and, in particular, to children, who have no voice at all. I also have a concern about vulnerable people over the age of 18, and that may be something we will come to later in our discussions on the Bill.
Lord Bethell (Con)
My Lords, I violently agree with my noble friend Lord Moylan that the grouping of this amendment is unfortunate. For that reason I am not going to plunge into the issue in huge detail. but there are a couple of things I would like to reassure my noble friend on, and I have a question for the Minister.
The noble Baroness, Lady Kidron, said there is a package of amendments around age verification and that we will have a lot of time to dive into this, and I think that is probably the right format for doing it. However, I reassure my noble friend Lord Moylan that he is absolutely right. The idea is not in any way to shut off the town square from everyone simply because there might be something scary there.
Clause 11(3) refers to priority content, which the noble Lord will know is to do with child abuse and fraudulent and severely violent content. This is not just any old stuff; this is hardcore porn and the rest. As in the real world, that content should be behind an age-verification barrier. At the moment we have a situation on the internet where, because it has not been well-managed for a generation, this content has found itself everywhere: on Twitter and Reddit, and all sorts of places where really it should not be because there are children there. We envisage a degree of tidying up of social media and the internet to make sure that the dangerous content is put behind age verification. What we are not seeking to do, and what would not be a benign or positive action, is to put the entire internet behind some kind of age-verification boundary. From that point of view, I completely agree with my noble friend.
Baroness Benjamin (LD)
My Lords, as might be expected, I will speak against Amendment 26 and will explain why.
The children’s charity Barnardo’s—here I declare an interest as vice-president—has said, as has been said several times before, that children are coming across pornographic content from as young as seven. Often they stumble across the content accidentally, unwittingly searching for terms such as “sex” or “porn”, without knowing what they mean. The impact that this is having on children is huge. It is harming their mental health and distorting their perception of healthy sexual relationships and consent. That will go with them into adulthood.
Age verification for pornography and age assurance to protect children from other harms are crucial to protect children from this content. In the offline world, children are rightly not allowed to buy pornographic DVDs in sex shops but online they can access this content at the click of a button. This is why I will be supporting the amendments from the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, and am fully supportive of their age assurance and age verification schedule.
Baroness Fox of Buckley (Non-Afl)
My Lords, to go back not just to the age question, the noble Lord, Lord Allan of Hallam, reminded us that community-led moderation is not just Wikipedia. What I tried to hint at earlier is that that is one of the most interesting, democratic aspects of the online world, which we should protect.
We often boast that we are a self-regulating House and that that makes us somehow somewhat superior to up the road—we are all so mature because we self-regulate; people do behave badly but we decide. It is a lesson in democracy that you have a self-regulating House, and there are parts of the online world that self-regulate. Unless we think that the citizens of the UK are less civilised than Members of the House of Lords, which I would refute, we should say that it is positive that there are self-moderating, self-regulating online sites. If you can say something and people can object and have a discussion about it, and things can be taken down, to me that is the way we should deal with speech that is inappropriate or wrong. The bulk of these amendments—I cannot remember how many there are now—are right.
I was glad that the noble Lord, Lord Moylan, said he could not understand why this grouping had happened, which is what I said earlier. I had gone through a number of groupings thinking: “What is that doing there? Am I missing something? Why is that in that place?” I think we will come back to the age verification debate and discussion.
One thing to note is that one of the reasons organisations such as Wikipedia would be concerned about age verification—and they are—is anonymity. It is something we have to consider. What is going to happen to anonymity? It is so important for journalists, civil liberty activists and whistleblowers. Many Wikipedia editors are anonymised, maybe because they are politically editing sites on controversial issues. Imagine being a Wikipedia editor from Russia at the moment—you would not want to have to say who you are. We will come back to it but it is important to understand that Amendment 26, and those who are saying that we should look at the question of age verification, are not doing so because they do not care about children and are not interested in protecting them. However, the dilemmas of any age-gating or age verification for adult civil liberties have to be considered. We have to worry that, because of an emphasis on checking age, some websites will decide to sanitise what they allow to be published to make it suitable for children, just in case they come across it. Again, that will have a detrimental impact on adult access to all knowledge.
These will be controversial issues, and we will come back to them, but it is good to have started the discussion.
Lord Clement-Jones (LD)
My Lords, this has been a very strange debate. It has been the tail end of the last session and a trailer for a much bigger debate coming down the track. It was very odd.
We do not want to see everything behind an age-gating barrier, so I agree with my noble friend. However, as the noble Baroness, Lady Kidron, reminded us, it is all about the risk profile, and that then leads to the kind of risk assessment that a platform is going to be required to carry out. There is a logic to the way that the Bill is going to operate.
When you look at Clause 11(3), you see that it is not disproportionate. It deals with “primary priority content”. This is not specified in the Bill but it is self-harm and pornography—major content that needs age-gating. Of course we need to have the principles for age assurance inserted into the Bill as well, and of course it will be subject to debate as we go forward.
There is technology to carry out age verification which is far more sophisticated than it ever was, so I very much look forward to that debate. We started that process in Part 3 of the Digital Economy Act. I was described as an internet villain for believing in age verification. I have not changed my view, but the debate will be very interesting. As regards the tail-end of the previous debate, of course we are sympathetic on these Benches to the Wikipedia case. As we said on the last group, I very much hope that we will find a way, whether it is in Schedule 1 or in another way, of making sure that Wikipedia is not affected overly by this—maybe the risk profile that is drawn up by Ofcom will make sure that Wikipedia is not unduly impacted.
Lord Stevenson of Balmacara (Lab)
Like others, I had prepared quite extensive notes to respond to what I thought the noble Lord was going to say about his amendments in this group, and I have not been able to find anything left that I can use, so I am going to have to extemporise slightly. I think it is very helpful to have a little non-focused discussion about what we are about to talk about in terms of age, because there is a snare and a delusion in quite a lot of it. I was put in mind of that in the discussions on the Digital Economy Act, which of course precedes the Minister but is certainly still alive in our thinking: in fact, we were talking about it earlier today.
The problem I see is that we have to find a way of squaring two quite different approaches. One is to prevent those who should not be able to see material, because it is illegal for them to see it. The other is to find a way of ensuring that we do not end up with an age-gated internet, which I am grateful to find that we are all, I think, agreed about: that is very good to know.
Age is very tricky, as we have heard, and it is not the only consideration we have to bear in mind in wondering whether people should be able to gain access to areas of the internet which we know will be bad and difficult for them. That leads us, of course, to the question about legal but harmful, now resolved—or is it? We are going to have this debate about age assurance and what it is. What is age verification? How do they differ? How does it matter? Is 18 a fixed and final point at which we are going to say that childhood ends and adulthood begins, and therefore one is open for everything? It is exactly the point made earlier about how to care for those who should not be exposed to material which, although legal for them by a number called age, is not appropriate for them in any of the circumstances which, clinically, we might want to bring to bear.
I do not think we are going to resolve these issues today—I hope not. We are going to talk about them for ever, but at this stage I think we still need a bit of thinking outside a box which says that age is the answer to a lot of the problems we have. I do not think it is, but whether the Bill is going to carry that forward I have my doubts. How we get that to the next stage, I do not know, but I am looking forward to hearing the Minister’s comments on it.
Lord Parkinson of Whitley Bay (Con)
My Lords, I agree that this has been a rather unfortunate grouping and has led to a slightly strange debate. I apologise if it is the result of advice given to my noble friend. I know there has been some degrouping as well, which has led to slightly odd combinations today. However, as promised, I shall say a bit more about Wikipedia in relation to my noble friend’s Amendments 10 and 11.
The effect of these amendments would be that moderation actions carried out by users—in other words, community moderation of user-to-user and search services —would not be in scope of the Bill. The Government support the use of effective user or community moderation by services where this is appropriate for the service in question. As I said on the previous group, as demonstrated by services such as Wikipedia, this can be a valuable and effective means of moderating content and sharing information. That is why the Bill does not impose a one-size-fits-all requirement on services, but instead allows services to adopt their own approaches to compliance, so long as these are effective. The noble Lord, Lord Allan of Hallam, dwelt on this. I should be clear that duties will not be imposed on individual community moderators; the duties are on platforms to tackle illegal content and protect children. Platforms can achieve this through, among other things, centralised or community moderation. Ultimately, however, it is they who are responsible for ensuring compliance and it is platforms, not community moderators, who will face enforcement action if they fail to do so.
Lord Moylan (Con)
My Lords I am grateful to all noble Lords who have contributed to this slightly disjointed debate. I fully accept that there will be further opportunities to discuss age verification and related matters, so I shall say no more about that. I am grateful, in particular, to the noble Lord, Lord Allan of Hallam, for supplying the deficiency in my opening remarks about the importance of Amendments 10 and 11, and for explaining just how important that is too. I also thank the noble Lord, Lord Stevenson. It was good of him to say, in the open approach he took on the question of age, that there are issues still to be addressed. I do not think anybody feels that we have yet got this right and I think we are going to have to be very open in that discussion, when we get to it. That is also true about what the noble Lord, Lord Allan of Hallam, said: we have not yet got clarity as to where the age boundary is—I like his expression—for the public space. Where is the point at which, if checks are needed, those checks are to be applied? These are all matters to discuss and I hope noble Lords will forgive me if I do not address each individual contribution separately.
I would like to say something, I hope not unfairly or out of scope, about what was said by the noble Baronesses, Lady Finlay of Llandaff and Lady Kidron, when they used, for the first time this afternoon, the phrase “zero tolerance”, and, at the same time, talked about a risk-based approach. I have, from my own local government experience, a lot of experience of risk-based approaches taken in relation to things—very different, of course, from the internet—such as food safety, where local authorities grade restaurants and food shops and take enforcement action and supervisory action according to their assessment of the risk that those premises present. That is partly to do with their assessment of the management and partly to do with their experience of things that have gone wrong in the past. If you have been found with mouse droppings and you have had to clean up the shop, then you will be examined a great deal more frequently until the enforcement officers are happy; whereas if you are always very well run, you will get an inspection visit maybe only once a year. That is what a risk-based assessment consists of. The important thing to say is that it does not produce zero tolerance or zero outcomes.
Baroness Kidron (CB)
I just want to make the point that I was talking about zero tolerance at the end of a ladder of tolerance, just to be clear. Letting a seven-year-old child into an 18-plus dating app or pornographic website is where the zero tolerance is—everything else is a ladder up to that.
Lord Moylan (Con)
I beg the noble Baroness’s pardon; I took that for granted. There are certain things—access to pornography, material encouraging self-harm and things of that sort—where one has to have zero tolerance, but not everything. I am sorry I took that for granted, so I fully accept that I should have made that more explicit in my remarks. Not everything is to be zero-toleranced, so to speak, but certain things are. However, that does not mean that they will not happen. One has to accept that there will be leakage around all this, just as some of the best-run restaurants that have been managed superbly for years will turn out, on occasion, to be the source of food poisoning. One has to accept that this is never going to be as tight as some of the advocates wanted, but with that, I hope I will be given leave to withdraw—
Baroness Finlay of Llandaff (CB)
May I intervene, because I have also been named in the noble Lord’s response? My concern is about the most extreme, most violent, most harmful and destructive things. There are some terrible things posted online. You would not run an open meeting on how to mutilate a child, or how to stab somebody most effectively to do the most harm. It is at this extreme end that I cannot see anyone in society in the offline world promoting classes for any of these terrible activities. Therefore, there is a sense that exposure to these things is of no benefit but promotes intense harm. People who are particularly vulnerable at a formative age in their development should not be exposed to them, because they would not be exposed to them elsewhere. I am speaking personally, not for anybody else, but I stress that this is the level at which the tolerance should be set to zero because we set it to zero in the rest of our lives.
Lord Moylan (Con)
Everything the noble Baroness has said is absolutely right, and I completely agree with her. The point I simply want to make is that no form of risk-based assessment will achieve a zero-tolerance outcome, but—
Baroness Harding of Winscombe (Con)
I am so sorry, but may I offer just one final thought from the health sector? While the noble Lord is right that where there are human beings there will be error, there is a concept in health of the “never event”—that when that error occurs, we should not tolerate it, and we should expect the people involved in creating that error to do a deep inspection and review to understand how it occurred, because it is considered intolerable. I think the same exists in the digital world in a risk assessment framework, and it would be a mistake to ignore it.
Lord Moylan (Con)
My Lords, I am now going to attempt for the third time to beg the House’s leave to withdraw my amendment. I hope for the sake of us all, our dinner and the dinner break business, for which I see people assembling, that I will be granted that leave.
Member’s explanatory statement
This amendment is consequential on the amendments in the Minister’s name to clause 9 below (because the new duty to summarise illegal content risk assessments in the terms of service is only imposed on providers of Category 1 services).
Lord Parkinson of Whitley Bay (Con)
My Lords, this group of government amendments relates to risk assessments; it may be helpful if I speak to them now as the final group before the dinner break.
Risk management is at the heart of the Bill’s regulatory framework. Ofcom and services’ risk assessments will form the foundation for protecting users from illegal content and content which is harmful to children. They will ensure that providers thoroughly identify the risks on their own websites, enabling them to manage and mitigate the potential harms arising from them. Ofcom will set out the risks across the sector and issue guidance to companies on how to conduct their assessments effectively. All providers will be required to carry out risk assessments, keep them up-to-date and update them before making a significant change to the design or operation of their service which could put their users at risk. Providers will then need to put in place measures to manage and mitigate the risks they identify in their risk assessments, including any emerging risks.
Given how crucial the risk assessments are to this framework, it is essential that we enable them to be properly scrutinised by the public. The government amendments in this group will place new duties on providers of the largest services—that is, category 1 and 2A services—to publish summaries of their illegal and child safety risk assessments. Through these amendments, providers of these services will also have a new duty to send full records of their risk assessments to Ofcom. This will increase transparency about the risk of harm on the largest platforms, clearly showing how risk is affected by factors such as the design, user base or functionality of their services. These amendments will further ensure that the risk assessments can be properly assessed by internet users, including by children and their parents and guardians, by ensuring that summaries of the assessments are publicly available. This will empower users to make informed decisions when choosing whether and how to use these services.
It is also important that Ofcom is fully appraised of the risks identified by service providers. That is why these amendments introduce duties for both category 1 and 2A services to send their records of these risk assessments, in full, to Ofcom. This will make it easier for Ofcom to supervise compliance with the risk assessment duties, as well as other duties linked to the findings of the risk assessments, rather than having to request the assessments from companies under its information-gathering powers.
These amendments also clarify that companies must keep a record of all aspects of their risk assessments, which strengthens the existing record-keeping duties on services. I hope that noble Lords will welcome these amendments. I beg to move.
Lord Allan of Hallam (LD)
My Lords, it is risky to stand between people and their dinner, but I rise very briefly to welcome these amendments. We should celebrate the good stuff that happens in Committee as well as the challenging stuff. The risk assessments are, I think, the single most positive part of this legislation. Online platforms already do a lot of work trying to understand what risks are taking place on their platforms, which never sees the light of day except when it is leaked by a whistleblower and we then have a very imperfect debate around it.
The fact that platforms will have to do a formal risk assessment and share it with a third-party regulator is huge progress; it will create a very positive dynamic. The fact that the public will be able to see those risk assessments and make their own judgments about which services to use—according to how well they have done them—is, again, a massive public benefit. We should welcome the fact that risk assessments are there and the improvements that this group of amendments makes to them. I hope that was short enough.
Baroness Kidron (CB)
I also welcome these amendments, but I have two very brief questions for the Minister. First, in Amendment 27A, it seems that the child risk assessment is limited only to category 1 services and will be published only in the terms of service. As he probably knows, 98% of people do not read terms of service, so I wondered where else we might find this, or whether there is a better way of dealing with it.
My second question is to do with Amendments 64A and 88A. It seems to me—forgive me if I am wrong—that the Bill previously stipulated that all regulated search and user services had to make and keep a written record of any measure taken in compliance with a relevant duty, but now it seems to have rowed back to only category 1 and 2A services. I may be wrong on that, but I would like to check it for the record.
Lord Clement-Jones (LD)
My Lords, the noble Baroness, Lady Kidron, put her finger exactly on the two questions that I wanted to ask: namely, why only category 1 and category 2A, and is there some rowing back involved here? Of course, none of this prejudices the fact that, when we come later in Committee to talk about widening the ambit of risk assessments to material other than that which is specified in the Bill, this kind of transparency would be extremely useful. But the rationale for why it is only category 1 and category 2A in particular would be very useful to hear.
Baroness Merron (Lab)
My Lords, I am grateful to the Minister for introducing this group, and we certainly welcome this tranche of government amendments. We know that there are more to come both in Committee and as we proceed to Report, and we look forward to seeing them.
The amendments in this group, as other noble Lords have said, amount to a very sensible series of changes to services’ risk-assessment duties. This perhaps begs the question of why they were not included in earlier drafts of the Bill, but we are glad to see them now.
There is, of course, the issue of precisely where some of the information will appear, as well as the wider status of terms of service. I am sure those issues will be discussed in later debates. It is certainly welcome that the department is introducing stronger requirements around the information that must be made available to users; it will all help to make this a stronger and more practical Bill.
We all know that users need to be able to make informed decisions, and it will not be possible if they are required to view multiple statements and various documents. It seems that the requirements for information to be provided to Ofcom go to the very heart of the Bill, and I suggest that the proposed system will work best if there is trust and transparency between the regulator and those who are regulated. I am sure that there will be further debate on the scope of risk assessments, particularly on issues that were dropped from previous iterations of the Bill, and certainly this is a reasonable starting point today.
I will try to be as swift as possible as I raise a few key issues. One is about avoiding warnings that are at such a high level of generality that they get put on to everything. Perhaps the Minister could indicate how Ofcom will ensure that the summaries are useful and accessible to the reader. The test, of course, should be that a summary is suitable and sufficient for a prospective user to form an assessment of the likely risk they would encounter when using the service, taking into account any special vulnerabilities that they might have. That needs to be the test; perhaps the Minister could confirm that.
Is the terms of service section the correct place to put a summary of the illegal content risk assessment? Research suggests, unsurprisingly, that only 3% of people read terms before signing up—although I recall that, in an earlier debate, the Minister confessed that he had read all the terms and conditions of his mobile phone contract, so he may be one of the 3%. It is without doubt that any individual should be supported in their ability to make choices, and the duty should perhaps instead be to display a summary of the risks with due prominence, to ensure that anyone who is considering signing up to a service is really able to read it.
I also ask the Minister to confirm that, despite the changes to Clause 19 in Amendment 16B, the duty to keep records of risk assessments will continue to apply to all companies, but with an enhanced responsibility for category 1 companies.
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords for their questions on this, and particularly grateful to the noble Lord, Lord Allan, and the noble Baroness, Lady Kidron, for their chorus of welcome. Where we are able to make changes, we will of course bring them forward, and I am glad to be able to bring forward this tranche now.
As the noble Lord, Lord Allan, said, ensuring the transparency of services’ risk assessments will further ensure that the framework of the Bill delivers its core objectives relating to effective risk management and increased accountability regarding regulated services. As we have discussed, it is imperative that these providers take a thorough approach to identifying risks, including emerging risks. The Government believe that it is of the utmost importance that the public are able effectively to scrutinise the risk assessments of the largest in-scope services, so that users can be empowered to make informed decisions about whether and how to use their services.
On the questions from the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, about why it is just category 1 and category 2A services, we estimate that there will be around 25,000 UK service providers in scope of the Bill’s illegal and child safety duties. Requiring all these companies to publish full risk assessments and proactively to send them to Ofcom could undermine the Bill’s risk-based and proportionate approach, as we have discussed in previous groups on the burdens to business. A large number of these companies are likely to be low risk and it is unlikely that many people will seek out their risk assessments, so requiring all companies to publish them would be an excessive regulatory burden.
There would also be an expectation that Ofcom would proactively monitor a whole range of services, even ones that posed a minimal risk to users. That in turn could distract Ofcom from taking a risk-based approach in its regulation by overwhelming it with paperwork from thousands of low-risk services. If Ofcom wants to see records of the risk assessments of providers that are not category 1 or category 2A services, it has extensive information-gathering powers that it can use to require a provider to send it such records.
The noble Baroness, Lady Merron, was right to say that I read the terms of my broadband supply—I plead guilty to the nerdiness of doing that—but I have not read all the terms and conditions of every application and social medium I have downloaded, and I agree that many people do skim through them. They say the most commonly told lie on the planet at the moment is “I agree to the terms and conditions”, and the noble Baroness is right to point to the need for these to be intelligible, easily accessible and transparent—which of course we want to see.
In answer to her other question, the record-keeping duty will apply to all companies, but the requirement to publish is only for category 1 and category 2A companies.
The noble Baroness, Lady Kidron, asked me about Amendment 27A. If she will permit me, I will write to her with the best and fullest answer to that question.
I am grateful to noble Lords for their questions on this group of amendments.
Member’s explanatory statement
This amendment is consequential on the amendments in the Minister’s name to clause 19 below (because the new duty to supply records of risk assessments to OFCOM is only imposed on providers of Category 1 services).
Parliamentary Democracy in the United Kingdom
(1 year ago)
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Baroness Jones of Moulsecoomb
To ask His Majesty’s Government what assessment they have made of the strength of parliamentary democracy in the United Kingdom.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am delighted to see so many noble Lords keen to talk about parliamentary democracy; it is absolutely wonderful. I hope I will not shock them too much when I say that we do not really have democracy in this country any more. I extend a welcome to the right reverend Prelate the Bishop of Lichfield, who I think I met in a former existence. It is good to see him here. I hope he will have more than two minutes to make his maiden speech.
I am going to argue that we have a failing democracy. It is exemplified by an Executive who are taking on the powers of Parliament to make, delete and even change laws. It is a power grab that will undoubtedly backfire when Labour comes into government. At the moment, we are seeing a Bill go through—the strikes Bill, which we will debate on Report tomorrow—that is hyper-skeletal and gives sweeping powers to the Minister. I find that quite shocking. In 1929, Lord Hewart, the Lord Chief Justice, warned of the Executive taking on oppressive power through the use of delegated legislation
“to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme”.
A few years later, we saw what that led to in 1930s Germany as a party gained power in an election and then destroyed all the democratic and social institutions that held it in check. We saw a ruling party—a populist party—stir up hatred of foreigners and minorities in a cynical but successful attempt to gain and keep power by fomenting divisions. A security expert recently highlighted the blacklisting from government events by the Leader of the House, Jacob Rees-Mogg MP, of any experts on any subject if they are critical of the Government. This country has proud, wonderful traditions of freedom and fairness but I am afraid that, as he so often is, Gary Lineker is right: we are on a downward track.
The local elections are important for local democracy but, this time round, they are absolutely vital for our national democracy as well. They give electors a chance to warn a corrupt, far-right Government that they have gone too far; their undemocratic will asserting itself is a disaster for Britain. That same Government are using voter ID to suppress the vote, with older people like us able to use our railcard as ID but not younger people. If there is chaos at the local elections, with thousands of voters turned away or long queues putting others off of voting, that will make many question the validity of the results.
Such voter suppression is common in America; it is definitely an import from there. It is used regularly to gerrymander results by those in power who want to stay in power for ever. If there is chaos, delays or dips in turnout at these local elections, the Government will have two choices. They can be honourable and abandon voter ID before the general election, or they can risk destroying what is left of our democratic system. I should say that I will not let the Labour Party off the hook when it becomes the Government, either.
We need proportional representation. We need an elected second Chamber and we need to stop money controlling government policy. The Australians realised that, to save their democracy, they needed an anti-corruption commission; we should do exactly the same. The PPE fast-track contracts? Investigate. The millions of pounds in donations from the fossil fuel industry? Investigate. The ministerial meetings with United States healthcare providers? Investigate. I have not got time to list all the scandals, dodgy deals and Tufton Street connections that would be the bread and butter of any corruption commission. It would take years to go through all of them—I hope that, ultimately, the offenders will go to prison—but it might make MPs think more about their constituents and less about their bank accounts.
Proportional representation could be the foundation of a renewed democracy. It is what the public support in opinion polls and it is what the Labour membership supports at its conference. Please do not talk about first past the post leading to strong and stable government. That is absolute nonsense—we have had three Prime Ministers in the past three years. The problem is that we have had 13 years of the same party in government, which has created a climate where corruption and sleaze are rife. There is no stability or strength when a ruling party with a massive majority has a permanent crisis of allegations involving bullying, sex scandals, cash for questions, PPE contracts and the drawn-out saga of partygate. We now have high interest rates, high food prices and high energy prices. The only thing that is not going up is wages.
I agree with my Labour colleagues that any democracy that works will punish such failure and result in a change of government at the next election, but I would also argue that no healthy democracy would have allowed this messy mix of incompetence and far-right ideology to have dragged us into such an economic and moral sewer. No healthy democracy would allow privatised water companies to give shareholders £52 billion over recent decades while allowing sewage to be pumped into our rivers and coastal waters on an industrial scale; of course, only this afternoon, the other place again voted to allow this to continue. No healthy democracy would allow billions in fraud to be written off with a shrug of the shoulders, which is basically what has happened here. No healthy democracy would allow 13 years of food banks and child poverty to become normal, while the number of billionaires has more than trebled.
A change of party in a failing democracy will not do what we hope it will do. I do not want ever to live through another period of double austerity, social division and environmental damage. I do not for one moment claim that proportional representation is the solution to all our problems, but it might at least allow solutions to emerge.
Finally, I want to run through what I see as the real problems with our democracy at the moment. A democracy is failing when those who support the opposition are discouraged from voting; when protests that are noisy and get noticed get banned; when strikes are also banned; when police spies have legal immunity when infiltrating campaign groups; when the people who oversee the running of elections lose their independence; when international law and treaty commitments are disregarded; when human rights protections and the courts’ ability to question the Executive’s decisions are diluted; when lawyers and judges are declared the enemy within; when corruption is rife and legitimised; when there is one rule for those partying at the top and another rule for us at the bottom; when money buys access, which gets you the contracts, licences and regulations you desire; and when the national broadcaster is run by friends of the ruling party and the independent media is mostly owned by foreign billionaires. This is not a democracy. This is not a country we can be proud of any more. Our traditions have been scrapped, and this Government are responsible for that. I would argue that, at the moment, the strength of parliamentary democracy in the UK is absolutely zero.
Let me say also that I find it offensive when noble Lords opposite sit and chat while I am speaking; it is unnecessary for them to giggle from the Back Benches when they disagree with me. Be brave: stand up and say something in the debate.
Lord Davies of Gower (Con)
My Lords, may I politely remind the House that the speaking limit for this debate is two minutes? We have one hour and we must accommodate both the right reverend Prelate the Bishop of Lichfield’s maiden speech and the noble Lord, Lord Wallace, afterwards. I ask speakers to adhere to two minutes, please.
Lord Frost (Con)
My Lords, I thank the noble Baroness, Lady Jones, for giving us an opportunity to speak on this important subject, even if I do not, I am afraid, recognise her bleak and at times rather fantastic and comic picture of what is going on in this country at the moment. I also look forward to the right reverend Prelate the Bishop of Lichfield’s maiden speech.
In the short time I have, I want to take a step back. As a concept, modern parliamentary democracy is linked to the concept of the nation state. They rose together. We saw the growth of democracies in the late 19th and early 20th centuries, then again after 1990 as peoples found their independence and wanted to give it institutional form. So, although plenty of nation states are not democracies, there are, I think, no democracies that are not also nation states. That is not surprising. The nation state allows for the creation of a common demos, common loyalties and the readiness to settle political differences within an agreed set of rules.
It follows from this that, when the nation state weakens, confidence in democracy weakens. That is just what we saw in this country over the past nearly 50 years during our membership of the EU. Then, we were in practice only a limited democracy. Fewer and fewer issues could be settled in national elections. Policies on trade, agriculture, fisheries, the environment, employment, social issues, migration and citizens’ rights could be changed only by agreement in Brussels, whatever our national electorate said.
It is no wonder that people switched off and stopped believing that voting could change everything. Luckily, we have now escaped that, or at least, 95% of us have escaped that, since the Windsor Framework unfortunately preserves some of these weaknesses—I hope not for too long. Overall, we have brought politics back home. We have revived political life. We can debate and change everything again in this country. Of course, many people clearly are uncomfortable with that, and it sounds like the noble Baroness, Lady Jones, may be one of them. They call it populism when a democracy reflects citizens’ actual views but for me, it is a strength. Our democracy is healing. Politics is coming back to life.
Lord Campbell-Savours (Lab) [V]
My Lords, after 44 years in Westminster, do I believe that UK parliamentary democracy has been strengthened? On the contrary: I believe it has been weakened. What is my measure? General election turnouts, which are a good measure of confidence. The turnout was 77% in 1992 and 67% in the last election. Why the 10% decline?
There are two explanations: the conduct of a few in Westminster’s political class; and the internet, which has hugely increased transparency across the political divide. What has it revealed? First, a breakdown in our criminal justice system, with escalating street and online crime, to which the Government’s response is just more cuts. Secondly, the shift in policy towards the personal funding of hitherto public service provision, breeding inequality while penalising the poor. Thirdly, the state’s ruthless indifference to the scandal of housing policy, which through managed scarcity enriches property owners and exploits those who rent. Finally, government indifference to the income greed of a few, whose settlements insult the intelligence of a hard-working majority living in the real world of deprivation and struggling to survive.
It is against that background that the public increasingly shun the polling booth. I predict that when the scandalous gerrymandering of the electoral system through individual registration is fully exposed, there will be an angry outcry from an alienated, disfranchised public.
Lord Rennard (LD)
My Lords, it is not without irony when this Chamber discusses our democracy. Many people recognise that we often do a very good job here, a much better job than the Commons, of scrutinising legislation. There, MPs are hardly given the time to look at most of it. A second Chamber is therefore needed. However, when we ask MPs to think again, our carefully considered views are too often ignored by government and the overpowerful executive branch imposes its will on MPs.
The preamble to the Parliament Act 1911 promised that we would move from membership here being based on the hereditary principle to the popular principle. We are still waiting for that reform 112 years later, although the coalition Government made a brave attempt at it, winning support from MPs by a majority of 462 to 124 for the Second Reading of a Bill which, if enacted, would by now have meant at least two rounds of elections for Members of this place. This failure came despite commitment to reform having been included in all three main UK parties’ manifestos at the previous general election.
As the parties now prepare their next manifestos, I hope they will pledge to stop the process of electing more hereditary peers, make the recommendations of the House of Lords Appointments Commission binding and spell out their proposals for proper reform here. The House of Lords Reform Bill 2012 would not be a bad start. The manifestos should also include proposals to ensure that we have an electoral system which means that when people vote in a general election, they get the MPs they vote for. Just 43% of those who voted in 2019 gave the Conservative Party an 80-seat majority. A more representative Parliament would have prevented much of what has gone wrong since then.
Baroness Noakes (Con)
My Lords, in 2019 I thought that our parliamentary democracy was doomed. The majority in each House of Parliament seem resolved to frustrate the will of the British people as expressed in the Brexit referendum. Both Houses found devious ways to undermine the Executive and sought to impede our exit from the EU. It was a very unhappy experience.
All of this was exacerbated by the Fixed-term Parliaments Act 2011, itself an unhappy reminder that coalition Governments breed bad legislation. Parliament eventually remembered that the people are the most important part of any democratic system. It allowed a general election, and the great British electorate told us what they thought. They elected my party with a majority to get Brexit done, and we did it. We then expunged the Fixed-term Parliaments Act from the statute book. Parliamentary democracy has been rescued.
That does not mean that there are no problems, but they are not the ones analysed by the noble Baroness, Lady Jones of Moulsecoomb. Two minutes does not allow me to critique the noble Baroness’s speech or to list the challenges that I see, so I shall conclude my remarks with just one observation. Your Lordships’ House is well on the way to reinventing itself as a House of opposition to the elected Government. We may become the weak link in our parliamentary democracy, and that will not end well for your Lordships’ House.
Lord Norton of Louth (Con)
My Lords, I shall focus on trust. Public trust in government is low and getting lower. The survey evidence is that the distrust is not in the institutional structures but in the people who inhabit those structures. A survey by Ipsos MORI in February found that lack of faith in politics, politicians and Governments ranked fourth in response to the question, “What do you see as the most important issue facing Britain?” A survey last summer by YouGov found that when offered a list of 18 options in response to the question, “How much better or worse would democracy in the UK work if …”, the most popular option for working better was if politicians spoke more honestly. A total of 81% answered that it would work a lot or a bit better. Constitutional change in the form of structures and processes came in notably lower, all figuring in the latter half of the list. Fewer than 50% of respondents thought that democracy would work better if the House of Lords was replaced by an elected Chamber. The problem is not structures; it is behaviour.
I make one other related point following the resignation of Dominic Raab. The coverage of it misses the point that the conduct involved was a symptom of a systemic problem with government. In September 2021 I initiated a debate in your Lordships’ House on the need for Ministers and senior civil servants to be trained in core leadership skills. Until there is such training, there will continue to be problems with the capacity of Ministers and officials to deliver good government. Does my noble friend the Minister, who took part in that debate, not agree?
Baroness Pidding (Con)
My Lords, I am proud of this country’s parliamentary democracy. We only have to look a few hours’ flight away from London to find countries such as Russia and Belarus that are denied the rights and freedoms we have, which stemmed from the historic signing of Magna Carta over 800 years ago. Over the years our parliamentary democracy has developed in a powerful way, and individual communities have been able to make their voices heard. Causes that were once seen as niche interests are now settled public policy, because of Back-Benchers sent to Parliament by our democratic systems.
I will give two examples. The campaigner William Wilberforce was laughed at and mocked, at first, before he succeeded in bringing about the Slavery Abolition Act 1833. In more recent times, the securing of equal rights and equal marriage was once a lonely fight confined to a group of fringe MPs, but it is now seen as a basic human right. These different cases both show the power of our parliamentary democracy in providing a platform to campaign about, debate and force social and political change.
However, to continue to strengthen our parliamentary democracy, it is beholden on all our political parties to do two things. First, they must increase engagement with young people to show them that there is a role for them to play in our democracy, make politics relevant to them and dispel apathy. Secondly, they must encourage and nurture talent from every corner and community of the UK, making it easier for those with the ability but who lack the encouragement to enter politics. Much progress has been made over the years, but there is much more that we must do.
Lord Jackson of Peterborough (Con)
My Lords, I welcome this timely debate, notwithstanding the hyperbole of the noble Baroness, Lady Jones. It gives us the opportunity to put forward some practical alternatives.
We have much to learn from the United States. Woodrow Wilson said:
“Quite as important as legislation is vigilant oversight of administration”.
We could take a leaf out of the book of the Committee on Oversight and Reform of the US House of Representatives, with its subpoena powers, substantial administrative heft and sector expertise. Speaker Bercow’s 2010 reforms in the other place made some much-needed progress on the Select Committee model that had existed since 1979, but it is still work in progress. A powerful robust ways and means committee would certainly add to the effectiveness of parliamentary oversight.
HM Treasury is too powerful and stifles innovation and independent thinking across departments. Surely the Northcote-Trevelyan paradigm from the mid-1800s is defunct, as we have seen in the recent contentious cases of Dominic Raab and Sue Gray. The case for a permanent Civil Service is receding and is less compelling than it has ever been. As a former special adviser, I would argue more generally that the bureaucratic impasse of write-rounds and public consultation is inimical to expeditious legislation and governance.
I believe in the bicameral model of Parliament, but this House also needs reform. We need to look at the size of the House and at those who do not regularly attend, and we need to look at the role of the Bishops in this place—notwithstanding the position of the right reverend Prelate the Bishop of Lichfield, who is about to make his maiden speech.
Finally, the judiciary too cannot be immune from the imperative for openness and transparency. Self-selection and lack of transparency reduce accountability and public trust. We need confirmation hearings for senior departmental, executive and judicial appointments across both Houses, via a Joint Committee. This should be debated soon. In short, there is much work to do.
Lord Davies of Gower (Con)
My Lords, we seem to have gone out of sequence, so my noble friend Lord Hannan will now speak where my noble friend Lord Jackson would have spoken.
Viscount Stansgate (Lab)
Well, that ruined my opening line, which was going to be to congratulate the Member who had just spoken before me with “It’s a pleasure to disagree”, but never mind. It is customary to congratulate the Member who secured the debate, but I really want to congratulate the noble Baroness, Lady Jones, who has performed a very useful service to the House as a whole.
I look forward to the maiden speech of the right reverend Prelate. This is an interesting debate in which to give a maiden speech. When I saw this debate on the Order Paper, I thought three things. First, I thought, “What a good debate to have”. I think the House should have debates like this, from time to time, to take the temperature of things and assess where we are.
Secondly, I thought that this debate would attract so many speakers that we would have hardly any time to say anything, which has proved to be the case. I am afraid that this is what might be called a soundbite debate and I am sorry about that; we need more time.
Thirdly, I thought about how we are having this debate in the run-up to the Coronation, which is a rare event when attention naturally falls upon the monarch. It is a timely moment to remind ourselves that we are indeed supposed to be a parliamentary democracy. But what does that mean? Historically, it means that powers that have for centuries been exercised by the monarch are now exercised by the Prime Minister, but how accountable is she or he for that? I hope I will be forgiven if I upset any Members opposite but we have seen, for example, the exercise of what one might call the normal power of Prorogation as a highly political act of some consequence.
Then there are defects in the legislative process: there are too many skeleton Bills, which can reduce Parliament to a rubber stamp, and too many mega-Bills, such as the enormous Police, Crime, Sentencing and Courts Bill. Everyone knows that this House deals with legislation more successfully than the other place. There are balance of power Bills, which, I would argue, restrict and change the individual right of citizens. Of course, we sit far longer than the other place. There is also the question of the future of the Chamber. The light is already flashing. It is no secret that the Opposition have a plan for this House after the next election, but we will have to see what that is.
I end by saying that I know what the Minister is going to say. I rather wish that we could have a debate when she speaks first and then we comment on what the Government have said. Although this is a very short debate and I am about to sit down, I venture to suggest that today’s Hansard may be a slim volume, but it would be worth having.
Lord Balfe (Con)
My Lords, one can say very little in two minutes, so I will concentrate on one subject. I spent a long time in another legislature in another country. One of the conclusions that I drew 30 years ago, which is still with me, is that our electoral system is fundamentally unfair. You cannot talk about parliamentary democracy when you deny large numbers of people representation in Parliament. For many years, I have been a strong supporter of PR. When one talks about strong government, one should think also about stable government; the German, Swedish and Dutch systems have brought forward very sound Governments.
I think the Labour Party—as many in it probably think—would be far better off if Jeremy Corbyn was in an ultra-left party, as exists in most European countries. The House of Commons would be much stronger if the Green Party had a representation that came somewhere near its votes. I also think that Nigel Farage clearly has a following that is worthy of representation. You cannot talk about the strength of parliamentary democracy when you deny so many people a vote and a say in the way that the country is governed. I have believed that for many years and still believe it now.
There is a myth about strong government. We have a strong Government now, but look at some of the things that they have done. I am unhappy with them and I am on their side. God knows what other people think about them. I ask that we give serious consideration to electoral reform as the basis of a strong parliamentary democracy.
Lord Hannan of Kingsclere (Con)
My Lords, I welcome the right reverend Prelate the Bishop of Lichfield. He brings to an implausible nine the number of alumni of Oriel College, Oxford. I say “implausible” because, as I am sure the noble Lord, Lord Murphy of Torfaen, will agree, it was a rather philistine place, yet it is punching rather above its weight at this end.
I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, for broadening and enlivening the breadth and nature of our debates. She knows how fond I am of her and how fond my children are of her delicious homemade jam. I agree with much of what she said about the overmighty Executive. I do not dissent from that by one iota, but I urge her not to catastrophise and to be careful about the language that we use in this legislature. If you have disagreements with this Government, it does not follow that they are a moral sewer comparable to 1930s Germany. Using language of that kind can imperil the very democracy which we are debating, because democracy depends on a measure of self-restraint. It depends on losers being prepared to accept the outcome and on winners being prepared not to take a winner-takes-all attitude. Above all, democracy depends on treating the other side as opponents rather than enemies and accepting that people with whom we disagree might still have one or two useful things to tell us. We have to give a lead.
Let me give the example of how quickly we descend to cancel culture and destroy people over one slip or one clumsy phrase. I will aim this more at people on these Benches. Thinking of cases such as Rupa Huq’s unfortunate comments about Kwasi Kwarteng, Gary Lineker on 1930s Germany or, most recently, Diane Abbott’s asinine remarks about whether Jews could suffer from racism, I ask, without defending any of those things: is it not better to live in a world where we have second chances, where there is the possibility of atonement and forgiveness?
“Use every man according to his desert and who should ‘scape whipping?”
If your Lordships’ response is that the other side started it: maybe so. But me? I am more interested in ending it.
Lord Shinkwin (Con) [V]
My Lords, I also thank the noble Baroness, Lady Jones of Moulsecoomb, for securing this debate. It is a pleasure to follow my old noble friend Lord Hannan and precede the right reverend Prelate the Bishop of Lichfield. Having witnessed at first hand his practical commitment to democracy in the way he chairs the Council of Christians and Jews, I have no doubt that his contributions will strengthen your Lordships’ House.
We all know that democracy is not perfect, but it is the best imperfection we have as a bulwark against the wave of totalitarianism once again destabilising the world and causing chaos, as the current situation in Sudan demonstrates. Closer to home, I hope that when making an assessment of the strength of parliamentary democracy, my noble friend the Minister will consider how inclusive and representative our Parliament is of the diversity of the UK population, particularly with regard to the more than 14 million who have a disability. I commend my noble friend the Minister on her personal commitment to getting more disabled people into public appointments.
With little more than 1% of your Lordships’ House having long-term lived experience of disability, I suggest that all party leaders need to follow the Minister’s example and commit to addressing this damaging deficit of lived experience by sending, on merit, more disabled people to this House. I hope this call is something that all noble Lords can support as an opportunity for us to own reform of your Lordships’ House and so strengthen the vital contribution we make to robust and rigorous parliamentary scrutiny and debate.
The Lord Bishop of Lichfield (Maiden Speech)
My Lords, I am very grateful for the opportunity to speak in this House for the first time. I promise that I will be brief. I thank all noble Lords for their warm welcome and all the parliamentary staff and officers for their kindness and patience in explaining to me the procedures, traditions and geography of this extraordinary place.
Throughout my ministry I have had the joy of living and working in places of cheerful diversity—in Leicester, in south London and now in the West Midlands—and it is in the context of a diverse society that the noble Baroness, Lady Jones of Moulsecoomb, has rightly asked this Question about the strength of our parliamentary democracy.
In 2010 the late Pope, His Holiness Benedict XVI, spoke about parliamentary democracy in an address here in Westminster. He pointed out that democracy is a process rather than a value in itself—a process whose vitality depends on its being open to people who are guided by the values and commitments that inform their conscience. He asked the question,
“where is the ethical foundation for political choices to be found?”.
We might all answer that question in different ways, but we can all recognise its importance for the strength of our democracy. For many of us, the answer to the Pope’s question will be found in the faiths and beliefs we hold dear. Our parliamentary democracy has grown out of deep roots in the Christian tradition, as we are reminded at the start of every sitting in this Chamber, when we begin our business with prayer.
For our democracy to remain strong, we must recognise that many people, individuals and communities alike, are motivated by values that are given them by their faith or belief; that they need assurance that their freedom to practise and express their faith or belief is not under threat; and that differences between and within faiths in our society are not a problem or cause of anxiety. To these principles the Church of England is resolutely committed. Church of England parishes cover the whole nation of England, and our clergy and people often find themselves building strong friendships with people of different faiths in their neighbourhoods.
In my own diocese, for example, we have churches twinned with mosques in Walsall and Wolverhampton. During the pandemic, leaders of different faiths came together for online programmes to combat vaccine hesitancy. Over the last winter, people of all faiths and none have together been organising warm spaces and places of welcome. Examples like these could be multiplied across the country; faith or belief gives people values to motivate their civic involvement, and that strengthens our democracy.
As the noble Viscount, Lord Stansgate, reminded us, in 10 days our King will be crowned in a joyful service that will both be deeply Christian and deeply honour people of different faiths. In a speech soon after his accession, the King said:
“The beliefs that flourish in, and contribute to, our richly diverse society differ. They, and our society, can only thrive through a clear collective commitment to those vital principles of freedom of conscience, generosity of spirit and care for others which are, to me, the essence of our nationhood”.
Such a commitment in our diverse society can only strengthen our parliamentary democracy.
Lord Wallace of Saltaire (LD)
My Lords, I am very happy to welcome the right reverend Prelate to this House. He comes from an interesting background. Apart from being a priest in the south of England, Leicester and Staffordshire, he has also worked in Japan. He was involved in setting up the national Christian Muslim Forum and now chairs the Council of Christians and Jews. I gather he is also one of the Church of England’s team of bishops for prisons. That is a good range of expertise from which to speak with authority in this House. We look forward to that, and to him, as with his colleagues, bringing his diocesan perspective to this sometimes rather overly metropolitan House.
Anyone who has read Anthony Seldon’s account of the Johnson Government in the Times in recent days must doubt whether parliamentary democracy has been saved or strengthened since 2019. We should all be worried by the quality of democratic government in the UK and the damage that has been done to its conventions. The events in Washington two years ago have shown how delicate commitment to constitutional democracy can be.
Like the noble Lord, Lord Norton, I worry about the depth of public disillusion in the UK about democratic politics, above all about Westminster and how it operates. I worry even more about the depth of disillusion among the young, few of whom now vote, let alone join political parties, and turn to the streets instead to campaign.
I worry about ministerial attacks on the rule of law—that essential part of democracy. I worry about the colonisation of the Conservative Party by US Republicans, national conservatives and Christian nationalists, with their well-funded organisations, dragging the Conservatives towards an illiberal authoritarianism. I worry that the noble Lord, Lord Frost, has become more of a national conservative than a Conservative, although I am happy that the noble Lord, Lord Hannan, seems to have resisted some of that tendency.
I worry about the creeping spread of conspiracy theories, which inspire and energise anti-democratic fantasists, of allegations about a hidden deep state or a controlling liberal elite. I worry about the willingness of our right-wing media to help spread such theories. I worry about the fringe of right-wing extremists, fired up by social media, who talk about violence, some of whom, sadly, have gone on to kill politicians.
I worry about what would happen if we had a change of Government who then failed to change the way British politics works, leaving at the following election the only effective alternative: a Conservative Party that had drifted further to the right. None of us should be complacent about the strength of our constitution or democracy. We need more than a change of Government; we need a change of political culture and structure.
Baroness Hayman of Ullock (Lab)
My Lords, I thank the noble Baroness, Lady Jones, for bringing forward this brief but fascinating debate, and congratulate the right reverend Prelate the Bishop of Lichfield on his excellent speech. I offer him our warmest welcome to the House.
One of Parliament’s greatest strengths has always been its evolution and ability to adapt. Given the recent decline of faith in politics that we have heard about, now more than ever we need to consider how our democracy can be reformed.
Britain is one of the most centralised states in Europe. That is one of the reasons why Labour has committed to undertake a rebalancing of power, providing a framework and process for economic devolution to towns and cities across England. However, we also recognise the need for a new constitutional settlement here in Westminster, including guarantees over the autonomy of local government, clarification over what citizens can expect from their Government, and a commitment to tackle geographic economic inequalities.
Given recent events, it is important that Westminster reflects on how trust and integrity can be restored. We need powers to clamp down on inappropriate outside earnings for MPs, and to look at how to eliminate foreign and corrupt money from UK politics. As we have heard, it is also important to consider how this Chamber can be more efficient and effective by exploring how the size of the House can be reduced while retaining what works best, because often we work very well.
The UCL Constitution Unit’s third report on democracy said that most people
“wanted a stronger parliament and thought ministers should not be able to change the law without full parliamentary scrutiny”.
We have seen a move in the opposite direction. The one thing I ask the Minister to take from this debate is to take that back to the Prime Minister and the Cabinet.
The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
I welcome the fact that the noble Baroness, Lady Jones of Moulsecoomb, has secured this important and extremely wide-ranging debate. We should spend more time debating these important issues.
I start by congratulating the right reverend Prelate the Bishop of Lichfield on his excellent maiden speech. Lichfield is actually one of my favourite cathedrals, so he is most welcome; may he continue to make insightful contributions to the House. I was particularly glad that he reminded us of the Christian tradition of parliamentary democracy, and of the importance of freedom to practise different faiths.
Turning to the question of the day, my assessment is that, overall, UK parliamentary democracy is in a good state. Of course, like everything else political, it—UK parliamentary democracy—is a human construct, hence failures of one sort or another occur from time to time, and some have been mentioned, but the overall verdict should be a favourable one. I do not agree with the noble Baroness; like my noble friend Lord Hannan, I feel she should be careful about trying to draw parallels with 1930s Germany.
How has the situation that we are in come about? I am tempted to speculate that there may be some intrinsic virtue in the British character but my sober conclusion is that we have benefited from the virtues of evolution as opposed to adopting the follies of revolution as is sometimes espoused elsewhere—advocates of which are not unknown even within these hallowed walls. To sum things up I would like to quote Winston Churchill, who once said that:
“democracy is the worst form of Government except all those other forms that have been tried”.—[Official Report, Commons, 11/11/1947; col. 207.]
Given that position, the need is to protect what we have that is good, to strive to improve it where possible and to adapt to circumstances.
There are, of course, other democratic nations, some of which are, like us, parliamentary democracies, although some are not. All truly democratic nations promote the principles of free and fair elections, the rule of law, a free press and the role of civil society. Autocracies are normally opposed to all these values that we hold so dear—and what a tragic mess that can lead to, as we see in Russia today.
The noble Lord, Lord Campbell-Savours, has rightly mentioned the important role of elections in a functioning democracy, although I do not agree with the noble Lord, Lord Rennard, the noble Baroness, Lady Jones of Moulsecoomb, or my noble friend Lord Balfe that proportional representation would be better. Moreover, this Government were elected on a manifesto commitment to continue to support the first past the post voting system. We believe that this system is robust, secure and well understood by voters, providing strong and clear accountability.
My noble friend Lady Noakes was on great form. She was right to welcome an election that allowed us to get Brexit done—because that was the will of the people, despite strongly held views in many quarters, including in many parts of this House, on all sides. She is right to warn that the House should not become a House of opposition to an elected Government. This House is a very important part of the constitution.
My noble friend Lady Noakes also mentioned the recent repeal of the Fixed-term Parliaments Act. I believe that, by returning to the status quo ante, a Prime Minister will once again be able to call an election at a time of their choosing and avoid the parliamentary gridlock that caused so much trouble during the Brexit process.
As many have said, Members of Parliament as elected representatives have a central role in our system, advocating on behalf of and representing the views of their constituents. Both Houses carefully scrutinise and hold the Government to account and, through transparent engagement with Parliament, the Government facilitate that effective and important scrutiny work.
These are rights and principles that apply to all parts of the UK, whose constituent parts are represented in our parliamentary system, which is defined by a number of important elements. Under the UK’s parliamentary system, the ability of the Government to command the confidence of the House of Commons is the fundamental principle that enables government and Parliament to operate smoothly.
Ours is a representative democracy; because all individuals within the UK are represented, they are incentivised to participate in the electoral process. Government Ministers are, of course, drawn from both Houses, as I am lucky enough to know. The majority of Ministers are drawn from the Commons and not only accountable to the nation as a whole but required to address the local concerns of individuals represented by their individual MP.
Our parliamentary democracy is effective because it is grounded in tradition while being sufficiently flexible and adaptable to the circumstances of the day. This system allows for the development of policy and the passage of legislation under the careful scrutiny of Parliament when there is a majority in favour of the Government’s programme. Our parliamentary democracy allows for a high level of accountability and transparency by various mechanisms, of which noble Lords will be well aware, and to the success of which individuals in this House certainly contribute.
Our House—the Lords—as it is now would not be invented by anyone seeking to design a constitution, and over time we are likely to see further evolution of our constitutional arrangements. Until then, we perform a useful role in providing the scrutiny and accountability I mentioned. I think particular strengths are our scrutiny of Bills and SIs, including the revision of important detailed and complex clauses, and our respective committees, because they are the most fruitful area of engagement with the media; we play a crucial role in accurately informing the press.
I have been struck also by the strength the House gets from diverse specialisms: from different walks of life, from age—young and old, from geography and the wisdom of mature politicians of different persuasions who can help Governments to learn from past mistakes. In a very useful intervention, my noble friend Lord Shinkwin highlighted the role that individuals like himself, with his background and disability, can play in the House. He demonstrates that all the time, and I thank him for his support today.
There is an eclectic mix which brings much benefit, contributing in my view to our stable constitution. However, I must stress that in doing our work it is important that we recognise the primacy of the House of Commons as the elected Chamber. I believe the dilution of this is one of the problems with Gordon Brown’s proposed reforms, which the noble Baroness, Lady Hayman of Ullock, touched on briefly.
The noble Baroness, Lady Jones, mentioned corruption in her opening remarks. I do not believe that this country is systematically corrupt, but corruption does pose a threat to all democracies, the economy and security. Corruption threatens to erode trust in our institutions, which is why the Government are taking steps all the time to address these threats. I refer her, and I think she has had a debate on this subject, to the Home Office-led anti-corruption strategy and to the Defending Democracy Taskforce, which is very important and on which I have the pleasure of sitting.
It has been a good debate and I thank the noble Baroness, Lady Jones of Moulsecoomb, and everyone else who has spoken. I am sorry I have not been able to refer to everybody, but we have had contributions on everything from housing to water, to the more obvious subjects. I agree with my noble friend Lord Norton of Louth—that surprised him—about the importance of trust and honesty in public life, saying what you know to be true in Parliament and elsewhere, and on the value of leadership skills, both for Ministers and for senior civil servants. As a Cabinet Office Minister and as a former director of well-managed international companies, I spend a good deal of time encouraging leadership and skills training, and trying to move things forward.
When assessing the strengths of our parliamentary democracy, one of the greatest is our ability to evolve and develop over time, to meet and resolve different challenges. This flexibility is what makes it so effective, and I was interested that the noble Baroness picked up on this point about flexibility, going forward.
To sum up, we have a vibrant parliamentary democracy; we should be proud of that but, as always, we must strive to maintain and if possible improve on the present position.
Online Safety Bill
Tuesday 25th April 2023
(1 year ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 87(Rev)-III Third marshalled list for Committee - (25 Apr 2023)
“(g) the duties on regulated provider pornographic content set out in section 72.”Member’s explanatory statement
This amendment requires user-to-user services to comply with duties under Part 5.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I wish to speak to the amendments in this group, which are in my name and are also supported by the noble Lord, Lord Morrow. There are three interconnected issues raised by these amendments. First, there should be a level playing field across the Bill for regulating pornographic content. The same duties should apply to all content, whether it is found in social media or a user-to-user pornography site, which fall under Part 3, or a commercial pornography site, with producer content that falls within Part 5 of the Bill. Secondly, these common duties in respect of pornography must come into effect at the same time. My requiring that the same duties under Clause 72 apply to both Part 3 and Part 5 services means that they will be regulated for pornographic content at the same time, ensuring uniformity across the Bill.
Thirdly, through Amendment 125A, I wish to probe how Part 5 will function more specifically. Will any website or platform actually be covered by Part 5 if these amendments are not made? I had the privilege of speaking earlier to the Minister on these issues, and one question I would pose at this stage is, how many sites are covered by Part 5? That is one of the questions to which your Lordships’ House requires an answer.
The issue of ensuring that pornography is named as a harm on the face of the Bill, and that all pornographic content is age-verified, is not new. Indeed, it has been raised from the outset of the Bill, including at Second Reading in your Lordships’ House. In pre-legislative scrutiny even, the Joint Committee on the draft Bill recommended that
“key, known risks of harm to children are set out on the face of the Bill. We would expect these to include (but not be limited to) access to or promotion of age-inappropriate material such as pornography”.
To partly address this issue, the Government added Part 5 to the Bill, which sought to ensure that any platform that was not in scope of Part 3 but which included pornographic content should be subject to age-verification measures. I know that other noble Lords have put forward amendments that would add to the list of online harms on the face of the Bill, which we will be debating later in group 10.
Other amendments add to the duties that platforms hosting pornographic content need to comply with. These include Amendment 184, in the name of the noble Baroness, Lady Kidron, which proposes that consent be obtained from performers, and Amendment 185, in the name of the noble Baroness, Lady Benjamin, which seeks to ensure parity between what is permissible offline and online. The amendments I propose in this group are, I believe, complementary to those amendments. My amendments seek to ensure that duties across Part 3 and Part 5 in respect of pornography are aligned. Therefore, those additional duties contained in other amendments would be aligned across the Bill as well. When we get to that stage in Committee, I will be supporting those amendments.
The harms of pornography are well known and I do not propose to go over those again. I do, however, want to highlight one issue raised in a recent report published by the Children’s Commissioner for England. Her report states:
“Pornography is not confined to dedicated adult sites. We found that Twitter was the online platform where young people were most likely to have seen pornography. Fellow mainstream social networking platforms Instagram and Snapchat rank closely after dedicated pornography sites.”
The report found that 41% of children encountered pornography on Twitter, 33% on Instagram and 32% on Snapchat, while only 37% of children encountered pornography on main commercial websites. This means that children are more likely to encounter pornographic content on social media. That is why we need to ensure that standards across all platforms are uniform. The same standards need to apply to social media as to commercial pornography websites.
Lord Browne of Belmont (DUP)
My Lords, first, I tender an apology from my noble friend Lord Morrow, whose name is attached to the amendments. Unfortunately, he is unable to participate in tonight’s debate, as he had to return home at very short notice. I will speak to the amendments in this group. I thank the noble Baroness, Lady Ritchie, and my noble friend Lord Morrow for tabling the amendments, allowing for a debate on how the duties of Part 5 should apply to Part 3 services and to probe what sites Part 5 will cover once it is implemented.
The Government have devised a Bill which attempts carefully to navigate regulation of several different types of service. I am sure that it will eventually become an exemplar emulated around the world, so I understand why there may be a general resistance on the part of the Government to tamper with the Bill’s architecture. However, these amendments are designed to treat pornographic content as a clear exception wherever it is found online. This can be achieved, because we already know the harm caused by pornography and Part 5 already creates a duty to ensure that rigorous age verification is in place to stop children accessing it.
The Government recognised that the original drafting of the Bill would not address the unfinished business of Part 3 of the Digital Economy Act. In 2017, as many will recall, this House and the other place expressed the clear demand that online pornography should not be accessible to children. Part 5 of the Bill is the evolution of that 2017 debate, but, regrettably, it was bolted on belatedly after pre-legislative scrutiny. That bolt-on approach has had the unfortunate consequence of creating two separate regimes to deal with pornography. Part 5 applies only to “provider pornographic content”, which is content
“published or displayed on the service by the provider … or by a person acting on behalf of the provider”.
Clause 70 makes it clear:
“Pornographic content that is user-generated content … is not to be regarded as provider pornographic content”;
in other words, if pornography is on social media or the large tube sites, it falls under Part 3, not Part 5. That means that not all content will be regulated in the same way or at the same time.
Amendment 125A addresses an issue raised by this two-tier approach to regulation. Clause 49 defines “user-generated content” as content
“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, and … that may be encountered by another user”.
Encounter is defined broadly, meaning to
“read, view, hear or otherwise experience content”,
including adding “comments and reviews”. By including reviews, that seems to be a broad definition. Does it include a like, an up vote or an emoji? That is an important question that Amendment 125A probes. On this basis, it seems that almost all the most popular pornographic websites are user-to-user services, and therefore will fall into Part 3.
Lord Bethell (Con)
My Lords, it is a tremendous honour to follow the noble Lord, Lord Browne, who put the case extremely well; I agree with every word he just said. I thank the noble Baroness, Lady Ritchie, for bringing forward this issue, which she has done extremely well. I thank Christian Action Research and Education, which has been fundamental in thinking through some of these issues and has written an extremely good brief on the subject. There is indeed an urgent need for consistent regulation of pornographic content wherever it occurs online, whether it is in Section 3, Section 4, Section 5 or wherever. That is why, with the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Stevenson, I have tabled amendments to address age verification on pornography and harms in the round.
Our amendments, which we will get to on Thursday and on later days in Committee, are different from those raised by the noble Baroness, Lady Ritchie, and others, but it is worth noting that many of the principles are the same. In particular, all pornographic content should be subject to the same duties, in the interests of consistency and transparency, wherever it is. Porn is porn, regardless of where it occurs online, and it carries the same risk of harm, particularly to children, whether it is accessed on social media or on a dedicated porn site.
We know from the Children’s Commissioner’s research that, for instance, Twitter was absolutely the online platform where young people were most likely to have seen pornography. Not Pornhub or one of the big tubes—on Twitter. We also know that children will consistently watch porn on dedicated porn sites. So why do we have inconsistent regulation of pornographic content in the Bill? This is the question I address to my noble friend the Minister. We can and we will get to the debate on how we will do this—indeed, I welcome further discussion with the Minister on how, and encourage him to have conversations across the House on this.
For today, we must look at why we have inconsistent regulation for pornographic content and what that means. As currently drafted, Part 3 services and Part 5 services are not subject to the same duties, as the noble Baroness rightly pointed out. Part 3 services, which include the biggest and most popular pornographic websites, such as Pornhub and Xvideos, as well as sites that host pornographic content, such as Twitter, will not be subject to regulation, including age verification, until secondary legislation is introduced, thereby delaying regulation of the biggest porn sites until at the very least 2025, if not 2026. This will create a massively unlevel playing field which, as others have said, will disincentivise compliance across the board, as well as leaving children with unfettered access to pornography on both social media sites and other user-to-user sites such as Pornhub.
Meanwhile, whichever commercially produced pornography websites are left in Part 5 will, as has already been suggested, simply change their functionality to become user-to-user and avoid regulation for another three years. I have a way in which this can be prevented and the noble Baroness, Lady Ritchie, has her way, but for today I stand with her in asking why the Government think this lack of consistency and fragmentation in the regulation of an industry that destroys childhoods and has implications that reverberate across society are to be accepted.
I look forward to hearing what the Minister has to say. It is clear to me that there is a consensus across the Committee and at every stage of the Bill that pornography should be regulated in a way that is consistent, clear and implemented as quickly as possible following Royal Assent—I have suggested within six months. Therefore, I would welcome discussions with the noble Baroness, Lady Ritchie, the Minister and others to ensure that this can be achieved.
Lord Allan of Hallam (LD)
My Lords, I want to inject into the debate some counterarguments, which I hope will be received in the constructive spirit in which they are intended. Primarily, I want to argue that a level playing field is not the right solution here and that there is a strong logic for a graduated response. It is often tempting to dial everything up to 11 when you have a problem, and we clearly do have an issue around child access to pornography. But from a practical point of view, the tools we are giving our regulator are better served by being able to treat different kinds of services differently.
I think there are three classes of service that we are thinking about here. The first is a service with the primary purpose and explicit intent to provide pornography and nothing else. A regime dedicated to those sites is quite appropriate. Such a service might have not just the strongest levels of age verification but a whole other set of requirements, which I know we will debate later, around content verification and all sorts of other things that kick into play. The second category is made up of services that are primarily designed for social interaction which prohibit pornography and make quite strenuous efforts to keep it off. Facebook is such a service. I worked there, and we worked hard to try to keep pornography off. We could not guarantee that it was never present, but that was our intent: we explicitly wanted to be a non-pornographic site. Then there are—as the noble Lord, Lord Bethell, pointed out—other services, such as Twitter, where the primary purpose is social but a significant proportion of adult content is allowed.
I suggest that one of the reasons for having a graduated response is that, from our point of view, we would like services to move towards porn reduction, and for those general-purpose services to prohibit porn as far as possible. That is our intent. If we have a regulatory system that says, “Look, we’re just going to treat you all the same anyway”, we may provide a perverse incentive for services not to move up the stack, as it were, towards a regime where by having less pornographic or sexualised content, they are able to see some benefit in terms of their relationship with the regulator. That is the primary concern I have around this: that by treating everybody the same, we do not create any incentive for people to deal with porn more effectively and thereby get some relief from the regulator.
From a practical point of view, the relationship that the regulator has is going to be critical to making all these things work. Look at what has been happening in continental Europe. There have been some real issues around enforcing laws that have been passed in places such as France and Germany because there has not been the kind of relationship that the regulator needs with the providers. I think we would all like to see Ofcom in a better position, and one of the ways it can do that is precisely by having different sets of rules. When it is talking to a pure pornography site, it is a different kind of conversation from the one it is going to have with a Twitter or a Facebook. Again, they need to have different rules and guidance that are applied separately.
The intent is right: we want to stop under-18s getting on to those pure porn sites, and we need one set of tools to do that. When under-18s get on to a social network that has porn on it, we want the under-18s, if they meet the age requirement, to have access—that is perfectly legitimate—but once they get there, we want them kept out of the section that is adult. For a general-purpose service that prohibits porn, I think we can be much more relaxed, at least in respect of pornography but not in respect of other forms of harmful content—but we want the regulator to be focused on that and not on imposing porn controls. That graduated response would be helpful to the regulator.
Some of the other amendments that the noble Lord, Lord Bethell, has proposed will help us to talk about those kinds of measures—what Twitter should do inside Twitter, and so on—but the amendments we have in front of us today are more about dialling it all up to 11 and not allowing for that graduation. That is the intent I heard from the amendments’ proposers. As I say, that is the bit that, respectfully, may end up being counterproductive.
Lord Bethell (Con)
Could the noble Lord advise us on how he would categorise a site such as Twitter, on which it is estimated that 13% of the page deliveries are to do with pornography? Does it qualify as a pornography site? To me, it is ambiguous. Such a large amount of its financial revenue comes from pages connected with pornography that it seems it has a very big foot in the pornography industry. How would he stop sites gaming definitions to benefit from one schedule or another? Does he think that puts great pressure on the regulator to be constantly moving the goalposts in order to capture who it thinks might be gaming the system, instead of focusing on content definition, which has a 50-year pedigree, is very well defined in law and is an altogether easier status to analyse and be sure about?
Lord Allan of Hallam (LD)
The Twitter scenario, and other scenarios of mixed sites, are some of the most challenging that we have to deal with. But I would say, straightforwardly, “Look, 13% is a big chunk, but the primary purpose of Twitter is not the delivery of pornography”. I use Twitter on a daily basis and I have never seen pornography on it. I understand that it is there and that people can go for it, and that is an issue, but I think people out there would say that for most people, most of the time, the primary purpose of Twitter is not pornography.
What we want to do—in answer to the noble Lord’s second point—is create an incentive for people to be recategorised in the right direction. There is an assumption here that it is all going to be about gaming the system. I actually think that there is an opportunity here for genuine changes. There will be a conversation with Twitter. It will be interesting, given Twitter’s current management—apparently it is run by a dog, so there will be a conversation with the dog that runs Twitter. In that conversation, the regulator, Ofcom, on our behalf, will be saying, “You could change your terms of service and get rid of pornography”. Twitter will say yes or no. If it says no, Ofcom will say, “Well, here are all the things we expect you to do in order to wall off that part of the site”.
That is a really healthy and helpful conversation to have with Twitter. I expect it is listening now and already thinking about how it will respond. But it would expect that kind of treatment and conversation to be different; and I think the public would expect that conversation to be a different and better conversation than just saying “Twitter, you’re Pornhub. We’re just going to treat you like Pornhub”.
That is the distinction. As I say, we have an opportunity to get people to be more robust about either limiting or removing pornography, and I fear that the amendments we have in front of us would actually undermine rather than enhance that effort.
Baroness Kidron (CB)
At the centre of this is the question of whether we are trying to block the entire service or block at the level of porn content. It is the purpose of a set of amendments in the names of the noble Lord, Lord Bethell, myself and a number of other noble Lords to do exactly the latter. But I have to say to the noble Baroness that I am very much in sympathy with, first, putting porn behind an age gate; secondly, having a commencement clause; and, thirdly and very importantly—this has not quite come up in the conversation—saying that harms must be on the face of the Bill and that porn is not the only harm. I say, as a major supporter of the Bereaved Families for Online Safety, that “Porn is the only harm children face” would be a horrendous message to come from this House. But there is nothing in the noble Baroness’s amendments, apart from where the action happens, that I disagree with.
I also felt that the noble Baroness made an incredibly important point when she went into detail on Amendment 125A. I will have to read her speech in order to follow it, because it was so detailed, but the main point she made is salient and relates to an earlier conversation: the reason we have Part 5 is that the Government have insisted on this ridiculous thing about user-to-user and search, instead of doing it where harm is. The idea that you have Part 5, which is to stop the loophole of sites that do not have user-to-user, only to find that they can add user-to-user functionality and be another type of site, is quite ludicrous. I say to the Committee and the Minister, who I am sure does not want me to say it, “If you accept Amendment 2, you’d be out of that problem”—because, if a site was likely to be accessed by children and it had harm and we could see the harm, it would be in scope. That is the very common-sense approach. We are where we are, but let us be sensible about making sure the system cannot be gamed, because that would be ludicrous and would undermine everybody’s efforts—those of the Government and of all the campaigners here.
I just want to say one more thing because I see that the noble Lord, Lord Moylan, is back in his place. I want to put on the record that age assurance and identity are two very separate things. I hope that, when we come to debate the package of harms—unfortunately, we are not debating them all together; we are debating harms first, then AV—we get to the bottom of that issue because I am very much in the corner of the noble Lord and the noble Baroness, Lady Fox, on this. Identity and age assurance must not be considered the same thing by the House, and definitely not by the legislation.
Baroness Benjamin (LD)
My Lords, I add my support for all the amendments in this group. I thank the noble Baroness, Lady Ritchie, for bringing the need for the consistent regulation of pornographic content to your Lordships’ attention. Last week, I spoke about my concerns about pornography; I will not repeat them here. I said then that the Bill does not go far enough on pornography, partly because of the inconsistent regulation regimes between Part 3 services and Part 5 ones.
In February, the All-Party Parliamentary Group on Commercial Sexual Exploitation made a series of recommendations on the regulation of pornography. Its first recommendation was this:
“Make the regulation of pornography consistent across different online platforms, and between the online and offline spheres”.
It went on to say:
“The reforms currently contained in the Online Safety Bill not only fail to remedy this, they introduce further inconsistencies in how different online platforms hosting pornography are regulated”.
This is our opportunity to get it right but we are falling short. The amendments in the name of the noble Baroness, Lady Ritchie, go to the heart of the issue by ensuring that the duties that currently apply to Part 5 services will also apply to Part 3 services.
Debates about how these duties should be amended or implemented will be dealt with later on in our deliberations; I look forward to coming back to them in detail then. Today, the question is whether we are willing to have inconsistent regulation of pornographic content across the services that come into the scope of the Bill. I am quite sure that, if we asked the public in an opinion poll whether this was the outcome they expected from the Bill, they would say no.
An academic paper published in 2021 reported on the online viewing of 16 and 17 year-olds. It said that pornography was much more frequently viewed on social media, showing that the importance of the regulation of such sites remains. The impact of pornography is no different whether it is seen on a social media or pornography site with user-to-user facilities that fall within Part 3 or on a site that has only provider content that would fall within Part 5. There should not be an either/or approach to different services providing the same content, which is why I think that Amendment 125A is critical. If all pornographic content is covered by Part 5, what does and does not constitute user-generated material ceases to be our concern. Amendment 125A highlights this issue; I too look forward to hearing the Minister’s response.
There is no logic to having different regulatory approaches in the same Bill. They need to be the same and come into effect at the same time. That is the simple premise of these amendments; I fully support them.
Baroness Harding of Winscombe (Con)
My Lords, earlier today the noble Baroness, Lady Benjamin, referred to a group of us as kindred spirits. I suggest that all of us contributing to this debate are kindred spirits in our desire to see consistent outcomes. All of us would like to see a world where our children never see pornography on any digital platform, regardless of what type of service it is. At the risk of incurring the ire of my noble friend Lord Moylan, we should have zero tolerance for children seeing and accessing pornography.
I agree with the desire to be consistent, as the noble Baroness, Lady Ritchie, and the noble Lord, Lord Browne, said, but it is consistency in outcomes that we should focus on. I am very taken with the point made by the noble Lord, Lord Allan, that we must be very careful about the unintended consequences of a consistent regulatory approach that might end up with inconsistent outcomes.
When we get to it later—I am not sure when—I want to see a regulatory regime that is more like the one reflected in the amendments tabled by the noble Baroness, Lady Kidron, and my noble friend Lord Bethell. We need in the Bill a very clear definition of what age assurance and age verification are. We must be specific on the timing of introducing the regulatory constraints on pornography. We have all waited far too long for that to happen and that must be in the Bill.
I am nervous of these amendments that we are debating now because I fear other unintended consequences. Not only does this not incentivise general providers, as the noble Lord, Lord Allan, described them, to remove porn from their sites but I fear that it incentivises them to remove children from their sites. That is the real issue with Twitter. Twitter has very few child users; I do not want to live in a world where our children are removed from general internet services because we have not put hard age gates on the pornographic content within them but instead encouraged those services to put an age gate on the front door. Just as the noble Lord, Lord Allan, said earlier today, I fear that, with all the best intentions, the desire to have consistent outcomes and these current amendments would regulate the high street rather than the porn itself.
Lord Clement-Jones (LD)
My Lords, there is absolutely no doubt that across the Committee we all have the same intent; how we get there is the issue between us. It is probably about the construction of the Bill, rather than the duties that we are imposing.
It is a pleasure again to follow the noble Baroness, Lady Harding. If you take what my noble friend Lord Allan said about a graduated response and consistent outcomes, you then get effective regulation.
I thought that the noble Baroness, Lady Kidron, had it right. If we passed her amendments in the second group, and included the words “likely to be accessed”, Clause 11 would bite and we would find that there was consistency of outcomes for primary priority content and so on, and we would then find ourselves in much the same space. However, it depends on the primary purpose. The fear that we have is this. I would not want to see a Part 5 service that adds user-generated content then falling outside Part 5 and finding itself under Part 3, with a different set of duties.
I do not see a huge difference between Part 3 and Part 5, and it will be very interesting when we come to debate the later amendments tabled by the noble Lord, Lord Bethell, and the noble Baroness, Lady Kidron. Again, why do we not group these things together to have a sensible debate? We seem to be chunking-up things in a different way and so will have to come back to this and repeat some of what we have said. However, I look forward to the debate on those amendments, which may be a much more effective way of dealing with this than trying to marry Part 5 and Part 3.
I understand entirely the motives of the noble Baroness, Lady Ritchie, and that we want to ensure that we capture this. However, it must be the appropriate way of regulating and the appropriate way of capturing it. I like the language about consistent outcomes without unintended consequences.
Baroness Merron (Lab)
My Lords, this has been a very helpful debate and I hope it sets up the Committee up for when we return to these issues. As the noble Lord, Lord Clement-Jones, just said, it is about having appropriate regulation that does the job that we want. I feel from this debate, as I have felt before, that we are in agreement about what we want; the question, as ever, is how we get there.
The noble Lord, Lord Allan of Hallam, spoke well on the practicalities of the different ways that pornography is accessible and, because they are so different, the need to respond differently. An example is Twitter, which is primarily a social network but its content can be inappropriate when accessed by a group who should not be accessing it—children, in this case. It is important that the way this is approached does not take away the ability of Twitter, for example, to do the job that it is there to do but does protect those who need to be protected. The words that came to mind is that regulation needs to be fit for purpose, but the question is what the purpose is and how we make it fit for it.
I am grateful to all noble Lords who have spoken today. The noble Baroness, Lady Harding, spoke of consistency of outcome. That is a very good place from which to look backwards to see what is required. The noble Baroness, Lady Kidron, was right to say that we must not send out the message that pornography is, somehow, the only harm or that there is a hierarchy of harms. In my view, we are simply debating that at this stage. So pornography is not the only harm, nor is it of a higher order than other harms.
I would like to say how grateful I am to my noble friend Lady Ritchie of Downpatrick, who was supported in the Chamber by the noble Lord, Lord Browne, on behalf of his noble friend the noble Lord, Lord Morrow, who put his name to some of these amendments. I am grateful because the debate in this area facilitated an early debate on the issue of regulation and online pornography, and did it thoroughly. It raised a number of questions that we will need to address when debating later amendments.
There is no denying the damage that can be caused by young people readily having access to pornographic content online. They see material that it would be illegal for them to see offline. If we have already dealt with offline, our challenge is to protect children and young people in the same way online. However, as we will discuss later and probably at some length, this side of the House does not accept that access to illegal pornography is the only issue affecting how children can and should use the internet. Exposure to pornographic content changes young people’s perceptions of sexual activity and, in the worst cases, can contribute to sexual assault. Even in cases where there is consent, evidence is available that shows that depictions of certain high-risk activities in pornographic material mean that many more people are engaging in, for example, choking and asphyxiation, with the predictable but tragic outcome of permanent injury or even death.
Having said that, later we will be debating measures that need to be put in place to protect children of 18 and under from accessing sites that they are likely to encounter. We need to ensure that age-appropriate design is the keystone to the protection of children online. We are relying heavily on effective terms of service to protect vulnerable adults from accessing material which would cause them harm, and that issue definitely needs more debate.
Pornography has an influence on adult sexual behaviour and, regardless of our own personal views, we have to remember that much adult content is in fact perfectly legal, and for whatever reason, it is also very popular. While some of the most widely used user-to-user platforms have opted not to carry adult material, there are others, as we have heard in the debate, such as Twitter and Reddit, that do allow users to share explicit but legal content. There has been an explosion in the number of so-called content creators who upload their own material to sites such as OnlyFans. There has also been an explosion in user-to-user services such as Twitter, which I would presume to be the very valid motivation behind Amendment 183A.
Steps taken to restrict child access to adult content and user-to-user platforms are often easy to bypass, so the question of whether such services should be within the scope of Part 5 is indeed a valid one. There are some platforms that do take their responsibilities seriously, with OnlyFans having engaged with the topic of online safety long before it will be compelled to do so; but others have not. So, on that basis, it is clear that we cannot continue with the status quo given the ever-increasing risk that illegal material does not get taken down by algorithms and automated moderation.
We recognise that the Government have had their own reasons for not implementing Part 3 of the Digital Economy Act. That decision was disappointing, and in fact, the disappointment was made even worse by repeated empty promises, dither and delay. However, the department clearly recognises the issue, which is a welcome first step, and it is not clear that simply rerunning the arguments from the DEA is going to bear fruit this time round. This Bill is largely apolitical, and colleagues on all sides of the House, including from these Benches, have the opportunity to come together; we have the opportunity to agree a way forward to protect children, to reduce exposure to extreme forms of pornography but ultimately to allow adults to consume pornography if they wish to do so. That is the challenge that we have.
These Benches support robust age verification for access to pornographic content, but it is vital that these systems are secure and take appropriate steps to preserve the user’s privacy. The questions raised in this group are extremely valid, and the proposals presented by other colleagues, including the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, deserve very serious consideration. We hope that the Minister can demonstrate in his response that progress is being made.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, first, I will address Amendments 12BA, 183A and 183B, tabled by the noble Baroness, Lady Ritchie of Downpatrick, who I was grateful to discuss them with earlier today, and the noble Lord, Lord Morrow, whose noble friend, the noble Lord, Lord Browne of Belmont, I am grateful to for speaking to them on his behalf.
These amendments seek to apply the duties in Part 5 of the Bill, which are focused on published pornographic content and user-generated pornography. Amendments 183A and 183B are focused particularly on making sure that children are protected from user-to-user pornography in the same way as from published pornography, including through the use of age verification. I reassure the noble Baroness and the noble Lord that the Government share their concerns; there is clear evidence about the impact of pornography on young people and the need to protect children from it.
This is where I come to the questions posed earlier by the noble Lord, Lord McCrea of Magherafelt and Cookstown. The research we commissioned from the British Board of Film Classification assessed the functionality of and traffic to the UK’s top 200 most visited pornographic websites. The findings indicated that 128 of the top 200 most visited pornographic websites—that is just under two-thirds, or 64%—would have been captured by the proposed scope of the Bill at the time of the Government’s initial response to the online harms White Paper, and that represents 85% of the traffic to those 200 websites.
Since then, the Bill’s scope has been broadened to include search services and pornography publishers, meaning that children will be protected from pornography wherever it appears online. The Government expect companies to use age-verification technologies to prevent children accessing services which pose the highest risk to children, such as online pornography. Age-assurance technologies and other measures will be used to provide children with an age-appropriate experience on their service.
As noble Lords know, the Bill does not mandate that companies use specific approaches or technologies when keeping children safe online as it is important that the Bill is future-proofed: what is effective today might not be so effective in the future. Moreover, age verification may not always be the most appropriate or effective approach for user-to-user companies to comply with their duties under the Bill. For instance, if a user-to-user service, such as a social medium, does not allow pornography under its terms of service, measures such as strengthening content moderation and user reporting would be more appropriate and effective for protecting children than age verification. That would allow content to be better detected and removed, instead of restricting children from a service that is designed to be appropriate for their use—as my noble friend Lady Harding of Winscombe puts it, avoiding the situation where children are removed from these services altogether.
While I am sympathetic to the aims of these amendments, I assure noble Lords that the Bill already has robust, comprehensive protections in place to keep children safe from all pornographic content, wherever or however it appears online. This amendment is therefore unnecessary because it duplicates the existing provisions for user-to-user pornography in the child safety duties in Part 3.
It is important to be clear that, wherever they are regulated in the Bill, companies will need to ensure that children cannot access pornographic content online. This is made clear, for user-to-user content, in Clause 11(3); for search services, in Clause 25(3); and for published pornographic content in Clause 72(2). Moving the regulation of pornography from Part 3 to Part 5 would not be a workable or desirable option because the framework is effective only if it is designed to reflect the characteristics of the services in scope.
Part 3 has been designed to address the particular issues arising from the rapid growth in platforms that allow the sharing of user-generated content but are not the ones choosing to upload that content. The scale and speed of dissemination of user-generated content online demands a risk-based and proportionate approach, as Part 3 sets out.
It is also important that these companies understand the risks to children in the round, rather than focusing on one particular type of content. Risks to children will often be a consequence of the design of these services—for instance, through algorithms, which need to be tackled holistically.
I know that the noble Baroness is concerned about whether pornography will indeed be designated as primary priority content for the purposes of the child safety duties in Clauses 11(3) and 25(3). The Government fully intend this to be the case, which means that user-to-user services will need to have appropriate systems to prevent children accessing pornography, as defined in Clause 70(2).
The approach taken in Part 3 is very different from services captured under Part 5, which are publishing content directly, know exactly where it is located on their site and already face legal liability for the content. In this situation the service has full control over its content, so a risk-based approach is not appropriate. It is reasonable to expect that service to prevent children accessing pornography. We do not therefore consider it necessary or effective to apply the Part 5 duties to user-to-user pornographic content.
I also assure the noble Baroness and the noble Lord that, in a case where a provider of user-to-user services is directly publishing pornographic content on its own service, it will already be subject to the Part 5 duties in relation to that particular content. Those duties in relation to that published pornographic content will be separate from and in addition to their Part 3 duties in relation to user-generated pornographic content.
This means that, no matter where published pornographic content appears, the obligation to ensure that children are not normally able to encounter it will apply to all in-scope internet service providers that publish pornographic content. This is made clear in Clause 71(2) and is regardless of whether they also offer user-to-user or search services.
Lord Clement-Jones (LD)
I am sorry, but can the Minister just clarify that? Is he saying that it is not possible to be covered by both Part 3 and Part 5, so that where a Part 5 service has user-generated content it is also covered by Part 3? Can he clarify that you cannot just escape Part 5 by adding user-generated content?
Lord Parkinson of Whitley Bay (Con)
Yes, that is correct. I was trying to address the points raised by the noble Baroness, but the noble Lord is right. The point on whether people might try to be treated differently by allowing comments or reviews on their content is that they would be treated the same way. That is the motivation behind the noble Baroness’s amendment trying to narrow the definition. There is no risk that a publisher of pornographic content could evade their Part 5 duties by enabling comments or reviews on their content. That would be the case whether or not those reviews contained words, non-verbal indications that a user liked something, emojis or any other form of user-generated content.
That is because the Bill has been designed to confer duties on different types of content. Any service with provider pornographic content will need to comply with the Part 5 duties to ensure that children cannot normally encounter such content. If they add user-generated functionality—
Lord Bethell (Con)
I am sorry to come back to the same point, but let us take the Twitter example. As a publisher of pornography, does Twitter then inherit Part 5 responsibilities in as much as it is publishing pornography?
Lord Parkinson of Whitley Bay (Con)
It is covered in the Bill as Twitter. I am not quite sure what my noble friend is asking me. The harms that he is worried about are covered in different ways. Twitter or another social medium that hosts such content would be hosting it, not publishing it, so would be covered by Part 3 in that instance.
Lord Bethell (Con)
Maybe my noble friend the Minister could write to me to clarify that point, because it is quite a significant one.
Lord Parkinson of Whitley Bay (Con)
Perhaps I will speak to the noble Lord afterwards and make sure I have his question right before I do so.
I hope that answers the questions from the noble Baroness, Lady Ritchie, and that on that basis, she will be happy to withdraw her amendment.
Baroness Ritchie of Downpatrick (Lab)
My Lords, this has been a very wide-ranging debate, concentrating not only on the definition of pornography but on the views of noble Lords in relation to how it should be regulated, and whether it should be regulated, as the noble Baroness, Lady Kidron, the noble Lords, Lord Bethell and Lord Browne, and I myself believe, or whether it should be a graduated response, which seems to be the view of the noble Lords, Lord Allan and Lord Clement-Jones.
I believe that all pornography should be treated the same. There is no graduated response. It is something that is pernicious and leads to unintended consequences for many young people, so therefore it needs to be regulated in all its forms. I think that is the point that the noble Lord, Lord Bethell, was making. I believe that these amendments should have been debated along with those of the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, because then we could have an ever wider-ranging debate, and I look forward to that in the further groups in the days to come. The focus should be on the content, not on the platform, and the content is about pornography.
I agree with the noble Baroness, Lady Kidron, that porn is not the only harm, and I will be supporting her amendments. I believe that they should be in the Bill because if we are serious about dealing with these issues, they have to be in there.
I do not think my amendments are suggesting that children will be removed from social media. I agree that it is a choice to remove pornography or to age-gate. Twitter is moving to subscriber content anyway, so it can do it; the technology is already available to do that. I believe you just age-gate the porn content, not the whole site. I agree with the noble Lord, Lord Clement-Jones, as I said. These amendments should have been debated in conjunction with those of the noble Lord, Lord Bethell, and the noble Baroness, Lady Kidron, as I believe that the amendments in this group are complementary to those, and I think I already said that in my original submission.
I found the Minister’s response interesting. Obviously, I would like time to read Hansard. I think certain undertakings were given, but I want to see clearly spelled out where they are and to discuss with colleagues across the House where we take these issues and what we come back with on Report.
I believe that these issues will be debated further in Committee when the amendments from the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, are debated. I hope that in the intervening period the Minister will have time to reflect on the issues raised today about Parts 3 and 5 and the issue of pornography, and that he will be able to help us in further sessions in assuaging the concerns that we have raised about pornography. There is no doubt that these issues will come back. The only way that they can be dealt with, that pornography can be dealt with and that all our children throughout the UK can be dealt with is through proper regulation.
I think we all need further reflection. I will see, along with colleagues, whether it is possible to come back on Report. In the meantime, I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment is consequential on the amendments in the Minister’s name to clause 11 below (because the new duty to summarise children’s risk assessments in the terms of service is only imposed on providers of Category 1 services).
“(za) the duty about illegal content risk assessments set out in section 9(8A),(zb) the duty about children’s risk assessments set out in section 11(10A),”Member’s explanatory statement
This amendment ensures that the new duties set out in the amendments in the Minister’s name to clauses 9 and 11 below (duties to summarise risk assessments in the terms of service) are imposed on providers of Category 1 services only.
(f) the duty about record-keeping set out in section 19(8A).”Member’s explanatory statement
This amendment ensures that the new duty set out in the amendment in the Minister’s name to clause 19 below (duty to supply records of risk assessments to OFCOM) is imposed on providers of Category 1 services only.