Grand Committee

Tuesday 9th May 2023 Grand Committee

Tuesday 9 May 2023

Arrangement of Business

Tuesday 9th May 2023 Grand Committee

Announcement

15:45

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

Good afternoon, my Lords, and welcome to the Grand Committee. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes. I should say, however, that we are not expecting a Division.

Economic Crime and Corporate Transparency Bill

Committee stage
Tuesday 9th May 2023 Grand Committee

Committee (6th Day)

Amendment 91A

Moved by

[Lord Goldsmith of Richmond Park]

91A: After Clause 187, insert the following new Clause—
“Sanctions enforcement: monetary penalties
(1) In section 143 of the Policing and Crime Act 2017 (interpretation), in subsection (4) (meaning of “financial sanctions legislation”), in paragraph (f)—(a) the words from “contains” to the end become sub-paragraph (i);(b) at the end of that sub-paragraph insert—“;(ii) makes supplemental provision (within the meaning of section 1(6) of that Act) in connection with any prohibition or requirement mentioned in sub-paragraph (i).”(2) The Sanctions and Anti-Money Laundering Act 2018 is amended as follows.(3) In section 17 (enforcement), in subsection (9), in paragraph (a), after “(2)” insert “or makes supplemental provision in connection with any such prohibition or requirement”.(4) After section 17 insert—“17A Enforcement: monetary penalties(1) The provision that may be made by virtue of section 17(2) (enforcement of prohibitions or requirements) includes provision authorising a prescribed person to impose a monetary penalty on another person if satisfied, to the prescribed standard of proof, that the other person has breached a prohibition, or failed to comply with a requirement, that is imposed by or under regulations.(2) Regulations authorising the Treasury to impose a monetary penalty in respect of a breach or failure for which the Treasury could impose a monetary penalty under Part 8 of the Policing and Crime Act 2017 may not be made unless the regulations also make provision of the kind mentioned in section 17(9) to disapply Part 8 of that Act in respect of that breach or failure.(3) Regulations authorising the imposition of a monetary penalty may make provision that, in determining for the purposes of the regulations whether a person has breached a prohibition, or failed to comply with a requirement, any requirement relating to the person’s knowledge or intention is to be ignored. (4) Regulations authorising the imposition of a monetary penalty must provide that—(a) a person is not liable to such a penalty in respect of conduct amounting to an offence if—(i) proceedings have been brought against the person for that offence in respect of that conduct and the proceedings are ongoing, or(ii) the person has been convicted of that offence in respect of that conduct, and(b) no proceedings may be brought against a person in respect of conduct amounting to an offence if the person has been given such a penalty under the regulations in respect of that conduct.(5) Where regulations authorising the imposition of a monetary penalty authorise a prescribed person to determine the amount of the penalty, the regulations must provide for a maximum penalty.(6) The maximum penalty may be a prescribed sum of any amount or may be calculated in accordance with the regulations.(7) In this section—“conduct” means an act or omission;“regulations” mean regulations under section 1.””Member’s explanatory statement
This clause makes it clear that Treasury can impose monetary penalties under the Policing and Crime Act 2017 for breaches of provisions that are supplemental to financial sanctions and that regulations made under section 1 of SAMLA 2018 can include provision conferring power to impose monetary penalties.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, I rise to move Amendment 91A in the name of my noble friend Lord Sharpe of Epsom.

The Government take the enforcement of their sanctions regimes seriously. Ensuring that we have a firm basis for enforcement action is especially important given the unprecedented sanctions measures that we have implemented in response to Putin’s illegal invasion of Ukraine last year.

There are various methods to enforce UK sanctions, one of which is the imposition of civil monetary penalties, also known as CMPs, which are fines levied by the Government for breaches of sanctions. CMPs do not require a criminal prosecution and involve far less cost to the justice system than criminal prosecutions. To date, the Office of Financial Sanctions Implementation, which is known as OFSI and is part of His Majesty’s Treasury, has levied nine CMPs totalling more than £20 million since it was set up in 2016. The UK Government’s ability to impose CMPs is likely to factor in the calculations of those seeking to breach sanctions for financial gain.

This amendment is part of the Government’s work to strengthen enforcement across our UK sanctions regimes. The new clause will amend the Sanctions and Anti-Money Laundering Act 2018—SAMLA—to provide express provision in relation to the imposition of CMPs. New Section 17A of SAMLA clarifies and reinforces the broad enforcement powers contained in Section 17 of SAMLA, that:

“Regulations may make provision … for the enforcement of any prohibitions or requirements imposed by regulations”.


The amendment also strengthens the basis for CMPs to be imposed by the Treasury under the Policing and Crime Act 2017 for offences that are supplemental to financial sanctions. Again, this is a clarificatory amendment. While criminal and civil enforcement options are already in place, this measure provides clarity on the Treasury’s power to impose a CMP for such offences. The amendment also provides for the Policing and Crime Act 2017 to be disapplied where the Treasury has the power under both sanctions regulations and the Policing and Crime Act to impose CMPs in respect of prohibitions or requirements.

Of course, putting these powers on a firmer footing is worth while only if we invest the necessary resources to make use of them. In the recent Integrated Review Refresh, the Prime Minister announced a new £50 million economic deterrence initiative which will improve our sanctions implementation and enforcement. This will maximise the impact of our trade, transport and financial sanctions, including by cracking down on sanctions evasion. It will also be used to prepare the Government for future scenarios where the UK may need to deter or respond to hostile acts.

I hope that noble Lords will support this amendment. I beg to move.

[Lord Alton of Liverpool (CB)]

My Lords, there has been a change of Minister since we discussed this matter last week when we had a curtain-raiser on Amendment 85, which I moved in Grand Committee. It is always good to see the noble Lord, Lord Goldsmith, in his place; indeed, he had to answer the debate initiated in this Room last week by the right reverend Prelate the Bishop of St Albans. He also had to answer the question about how sanctions can be used to deter autocrats and flag British values against the values of authoritarian regimes; we discussed that issue at some length. As one would expect, the noble Lord gave a competent and welcome reply.

I notice, however, that the Minister’s noble friend Lord Johnson is sitting alongside him—

[Lord Fox (LD)]

No, he is not.

[Lord Alton of Liverpool (CB)]

Oh, is he not? I am sorry; I had better put my spectacles back on.

[Lord Coaker (Lab)]

Specsavers.

[Lord Alton of Liverpool (CB)]

I apologise to the noble Lord, Lord Evans. It seems that the noble Lord, Lord Johnson, is still travelling back from Hong Kong, but I can see that the noble Lord, Lord Sharpe of Epsom, is sitting in his place. He dealt with our debate last week; no one in this Committee knows more about Hong Kong than he does, having worked there. He will recall the discussions that we had not just on that occasion but on other occasions as well.

The matter was very much on my mind when reading the reports about the visit of the noble Lord, Lord Johnson. I wondered how the imprisonment of more than 1,000 legislators and lawmakers in Hong Kong has been dealt with during that visit, not least the position of Jimmy Lai, who is a British citizen. Indeed, in this very Room, sitting at the back of our proceedings just a couple of weeks ago was Sebastian Lai, his son. I know from our subsequent discussion that he felt deeply that not enough had been done by the United Kingdom in raising the case of his imprisoned father, who might well die in prison. I hope again as I press the Minister, as I did last week, that he will be able to tell us what the response has been from James Cleverly, the Foreign Secretary, and the Prime Minister, to the requests that have been made. Mr Sebastian Lai, who is also a British citizen, and his international legal team should have the opportunity to discuss his case, the role of assets and why no one in Hong Kong has been sanctioned, whereas British parliamentarians have been sanctioned. Despite the sanctioning of the former leader of the Conservative Party Sir Iain Duncan Smith and colleagues such as the noble Baroness, Lady Kennedy of The Shaws, we nevertheless continue business as usual by promoting closer and deeper business links, as the noble Lord, Lord Johnson, has been doing in Hong Kong. How does that link to the need for us to assess the assets that are held in this country by people who have been responsible for the incarceration of pro-democracy legislators and activists, more than 1,000 of whom are currently in jails in Hong Kong?

The main purpose of the amendment that I moved last week and of Amendment 91A before us today is to concentrate on the sanctions regime that has been imposed as a result of the war in Ukraine. I pay tribute to the Government for what they have tried to do, often in exacting circumstances, after the war erupted, but when I went to see the noble Lord, Lord Sharpe, and a member of his Bill team to discuss this last week, he was very straightforward in saying that there is nothing new in Amendment 91A and that it entrenches the current situation. It could be said to be sending a signal, but legislation is about more than semaphore and sending signals. Will the Minister say what is new in this amendment that is not already on the statute book?

Britain’s sanctions regime is broken, which is why some of the players who have been involved in the appalling events in Ukraine have been getting away with murder. Brave people have been laying down their lives defending not just their own country but our shared values of democracy and freedom. From the outset, we must recognise that our sanctions have always been held back by murky layers of financial secrecy in this country, which is why we need more than what is in Amendment 91A and why I hope that the noble Lord, Lord Sharp of Epsom, in particular, will continue to engage with those who spoke in favour of the amendment that I moved last week—they included the noble Lords, Lord Coaker and Lord Leigh, my noble friend Lord Fox and the noble Baroness, Lady Altmann. I therefore hope that Amendment 85 in its fullness, or something like it, will be put in place of Amendment 91A when the Bill comes back on Report.

It feels like every week we get a new story about this oligarch putting his wealth “in the hands of his young children” or that oligarch shrouding his UK assets behind so many shell companies and opaque trusts that we simply cannot track them down. I mentioned Roman Abramovich as a particularly high-profile example. The so-called oligarch files which were leaked earlier this year revealed how he was allegedly able rapidly to move at least $4 billion of his wealth away from law enforcement by transferring the beneficial ownership of several secretive trusts to his children just before he was slapped with sanctions by the Government.

We do not need to take a much closer look at the network of professional enablers who make this type of wrongdoing possible to see what is involved. There are accountants, lawyers and bankers who wilfully subvert our sanctions regime in exchange for tainted roubles. This is all absolutely legal. We have built a financial services sector in which people have been able to play an interminable game of cat and mouse with law enforcement, where the official owner of a given asset—if we can identify who that is in the first place—can change with little more than a stroke of the pen and no questions asked. Now we are finding that those same people—oligarchs, kleptocrats, call them what you will —know the rules of this game and its loopholes better than we do.

Accepting that our existing sanctions policy is not fit for purpose is important, but right now we can and should find a way to make sure that what sanctioned Russian assets we have managed to identify and freeze are taken away from these oligarchs and put towards Ukrainian reconstruction efforts. As it stands, if the war in Ukraine were to end tomorrow, we would have little choice but to hand back £18 billion of frozen assets to their dubious owners, with no questions asked. This is the distinction between freezing and seizing. We simply cannot allow that to happen. Ukrainian schools, hospitals and homes need to be rebuilt in their thousands and scores of unexploded bombs and mines need to be cleared to do so.

The question for us is whether this amendment goes anywhere at all towards achieving that. The cost of rebuilding the country could top £1 trillion, according to recent estimates. Ukraine’s death toll is 60,000 and rising, with millions more people displaced. Under international law, Russia has to pay for the damage that it has caused, yet so far it is the British taxpayer who has forked out £2.3 billion in military support and another £220 million in humanitarian aid. Secrecy and inertia are enabling this—two main reasons why our sanctions regime is not working and why we need to do more than what is contained in this amendment.

I have sympathy with the Government. The sanctions regime relating to Russia was hastily constructed, as I suggested at the outset of my remarks, in the wake of a conflict that has shocked the world. The seizure of assets that belong to individuals is certainly a complex issue. The rule of law, due process and property rights should all be considered, as I discussed with the noble Lord, Lord Sharpe. This is exactly why the Government must not miss the opportunity in this Bill to make a difference, without violating any of these principles.

Our allies have already put wheels in motion. The European Union is looking to seize €300 billion of frozen Russian central bank reserves and €19 billion in oligarch assets that it holds, while Canada has made good progress on a law to allow the seizure of frozen assets. What study have we made of what is happening elsewhere in the world? Should we not emulate those pieces of legislation and ensure that we act in concert? If the Minister thinks that I am asking the UK Government to go it alone on these things, I can assure him that he is mistaken. I recognise that we have to do this with others, but others seem to be ahead of the game. As it currently stands, I do not feel that this amendment is the way we should proceed. I look forward to hearing what the Minister has to say in response.

[Lord Fox (LD)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Alton. Briefly, I am trying to get a sense of the proportion of this amendment. The noble Lord set a high expectation bar, whereas the Minister seemed to set a low one. I think that I heard the Minister say that it clarifies something that already exists, which sounds a little like fiddling around the margins, so it would be helpful if he could explain what this does that we cannot do already and how many cases will be brought as a result of having this power that are currently impossible to prosecute. In other words, what is this actually for, how many people do we expect it to be applied to and what sort of scale of penalty does he envision would be applied? Without that context, we will all leave the Room feeling that it really is fiddling around the margins. If he could give us a sense of scope and scale, he may be able to send us away with a slightly stronger feeling about this otherwise modest amendment.

16:00

[Baroness Blake of Leeds (Lab)]

I will add some brief comments. I thank noble Lords for their contributions. I would like to understand whether this is adequate in terms of the opportunity that we now have. We know that if we miss this opportunity now, the risk is that it will not come round again for a long time. As we have heard, the situation is desperate and there have been enormous failings. I ask the Minister who will monitor the success of this and, assuming that the amendment is agreed, whether we will have an opportunity in future to understand whether it is having the desired impact.

The point has been well made: looking at other countries and other collections of companies around the globe that are grappling with this issue, are we missing a trick? Is there more that we could do at this stage? Context is everything. We have heard about the gaps that exist and the fact that too many people are getting away with not fully complying with the sanctions. We as a country need to take that very seriously. I would appreciate the Minister’s response to those questions, for clarification.

[Lord Goldsmith of Richmond Park (Con)]

I thank noble Lords for their contributions to this short exchange. I will start by addressing some of the points raised by the noble Lord, Lord Alton, who, as I have said many times—we seem to find ourselves in the same debates—is an indefatigable champion for human rights and has shone the light so often on abuses in China, Hong Kong and beyond. It is worth putting that on the record again. I am afraid that I cannot tell him what was raised in discussions between the Foreign Secretary, the Prime Minister and representatives of the CCPIT. I do not have that record, but I will try to uncover an answer for him in due course; I know that my colleagues will have taken a note of his question.

The noble Lord and the noble Lord, Lord Fox, are right to point to the scale of this amendment. A new package is not being introduced; that is not what this amendment is about. That is not to say that changes are not required or that no more can be done with the tools that have been assembled by the Government, not least through SAMLA, but this amendment is just a tidying-up exercise; it is about removing ambiguity. It will not answer the calls that we have heard from speakers in this debate, but it is not designed to. We have the tools that we need. As I mentioned, we now have SAMLA and the ability to tailor a specific sanctions regime using secondary legislation. The noble Lord, Lord Alton, is right that we should focus on using those tools to the maximum effect. There are plenty of places, organisations and people who perhaps ought to be on the sharp end of that sanctions regime. I cannot go into detail—I do not think that any Minister can or would—about any potential future sanctions, not least because doing so and highlighting them now would reduce their impact, but we are always looking to update the—

[Lord Alton of Liverpool (CB)]

I am grateful to the Minister. Will he look again at a proposal that a number of us have put before the House at various times for some degree of parliamentary oversight of the so-called Magnitsky sanctions? At the moment, they are opaque. Often, they seem very random and arbitrary: some are chosen and some are not. There may be good reasons for that. I recognise that we cannot sit in an open committee and discuss these things but, in camera, there is no reason at all why a Joint Committee of both Houses or one of our senior Select Committees, such as the House of Lords International Relations and Defence Committee, which is charged with looking at issues of genocide, for instance, should not be able to look at the details of sanctions and how and why they are imposed. I do not expect a straightforward reply from the Minister now, but will he give an assurance that he will look again at the way in which this regime is determined?

[Lord Goldsmith of Richmond Park (Con)]

The noble Lord makes an important point. I cannot answer it, because it is not an area over which I have any direct responsibility, as he can probably tell. However, it would be beneficial somehow to design a mechanism which would allow greater oversight. I do not know what that would look like, because there are risks associated with it. If the targets of any particular sanctions regime became aware in advance, we know what would happen. It is not an easy problem to solve, but in principle what the noble Lord has just said makes a lot of sense. If there is a way of doing so and injecting a bit more transparency—but not too much, for all the obvious reasons—I would certainly support that.

It is also worth saying that sanctions are just one tool that we have. For example, in relation to Hong Kong, as noble Lords know, we opened the doors of this country to a very large number from Hong Kong who were looking for safety and a home, where their fundamental rights would be respected. We created a bespoke immigration channel and suspended the UK- Hong Kong extradition treaty indefinitely. We extended the arms embargo that has applied to mainland China since 1989 to include Hong Kong—and so on. This is one tool in our arsenal; it is not the only tool.

I make one further point in relation to something raised by the noble Lord, Lord Alton, on the distinction between freezing and seizing. While I cannot provide him with a detailed answer—that is going to have to come from another Minister—I can tell him that the Government are sympathetic to proposals to use frozen funds to assist in the reconstruction of Ukraine following the bombardment that it has received from Vladimir Putin. The Government are actively looking at options continually to improve transparency around those assets that are held by—

[Baroness Kramer (LD)]

Just for clarification, the Minister said that there was an intention to use frozen funds for the reconstruction of Ukraine. I fully support that idea, but is it legal without a seizure?

[Lord Goldsmith of Richmond Park (Con)]

I have said that there are “proposals”. It is something that has been proposed, but I am not sure that I can use the word “intention”. If there is a way in which those frozen assets can be used to rebuild Ukraine, it is something that the UK Government will look very seriously at—but it is not something that the UK alone will be doing.

[Lord Fox (LD)]

To make the necessary legislation, the Government would need a Bill in which to do it, and this would seem to be the Bill that is tailor made to have those discussions. Could the Minister encourage colleagues to use this Bill as the medium by which the seizure process may be made legal?

[Lord Goldsmith of Richmond Park (Con)]

I thank the noble Lord, but I do not know what the legislative mechanism would look like to make that possible. I am afraid that it is something that I am going to have to—

[Baroness Altmann (Con)]

I thank my noble friend for giving way. I realise that he is in a somewhat difficult position, but I add my encouragement to him to discuss with colleagues the possible amendments that we have laid—

[Lord Fox (LD)]

Amendment 85.

[Baroness Altmann (Con)]

Yes, Amendment 85 would allow seizure of assets with a view, one hopes, eventually to being able to use them to reconstruct Ukraine in this case, but for other purposes as well. It would be an ideal way to pave the way for this to happen.

[Lord Goldsmith of Richmond Park (Con)]

The noble Baroness makes a similar point. It is not for me to determine the legislative or other route for achieving the possibility of using those frozen assets. It is something that I know that the Government are looking at and are sympathetic to, but I cannot go into any further details, because it is not an area where I have any particular expertise or authority. But I know that the Government are looking closely at the possibilities of doing so and recognise that there is a huge value in doing so, if we can.

[Lord Alton of Liverpool (CB)]

My Lords, I shall not intervene again on this, but I am extremely grateful to the Minister. To return to the point that the Minister’s noble friend Lady Altmann has just made, to those who took part in the debate on Amendment 85 last week, which would do some of things that he has just described, it was suggested that we might have a chance to meet the noble Lord, Lord Sharpe, again before Report. It would be helpful if the Minister could at least in principle assure us that such a meeting will take place with those who participated in that debate last week. Other noble Lords and noble Baronesses, such as the noble Baroness, Lady Kramer, could be invited as well—those who are interested and are Members of the Committee—to see whether we can build on Amendment 85 to do some of the things that I was very pleased to hear the Minister just say that the Government are keen to do.

[Lord Goldsmith of Richmond Park (Con)]

As the noble Lord knows, I have not had an opportunity to consult my noble friend Lord Sharpe, but I am delighted to volunteer him for such a meeting—I am sure he will be very happy.

I will move on briefly to the question about who will monitor—I am so sorry; I cannot remember who made the point. The answer is that a government department is responsible for that, so if it is a financial sanction, HMT will be responsible for ensuring that it is working and successful, and if it is transport, it will be the Department for Transport, and so on.

This is a small but important change to ensure that we have a firm basis for enforcement action. It will provide greater clarity and reinforce those enforcement powers by making them explicit, removing ambiguity. The amendment should also demonstrate that the UK Government take their sanctions enforcement responsibilities seriously, and we will continue to intensify our enforcement of those sanctions. I hope that noble Lords will support it.

Amendment 91A agreed.

Amendment 92

Moved by

[Baroness Kramer]

92: After Clause 187, insert the following new Clause—
“Whistleblowing: economic crime
(1) Whistleblowing is defined for the purposes of this section as any disclosure of information suggesting that, in the reasonable opinion of the whistleblower, an economic crime—(a) has occurred,(b) is occurring, or(c) is likely to occur.(2) The Secretary of State must by regulations made by statutory instrument, within the period of 12 months beginning with the day on which this Act is passed, set up a body corporate, to be known as the Office for Whistleblowers, to receive reports of whistleblowing as defined in subsection (1). (3) Regulations under subsection (2) may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by, each House of Parliament.(4) The Office for Whistleblowers must—(a) protect whistleblowers from detriment resulting from their whistleblowing,(b) ensure that disclosures by whistleblowers are investigated, and(c) escalate information and evidence of wrongdoing outside of its remit to such other appropriate authority as the regulations may provide or otherwise as the Office may determine.(5) The objectives of the Office for Whistleblowers are—(a) to encourage and support whistleblowers to make whistleblowing reports,(b) to provide an independent, confidential and safe environment for making and receiving whistleblowing information,(c) to provide information and advice on whistleblowing, and(d) to act on evidence of detriment to the whistleblower according to such guidance as may be set out by the Secretary of State in the regulations.(6) The Office for Whistleblowers must report annually to Parliament on the exercise of its duties, objectives and functions.”Member’s explanatory statement
This amendment would require the Secretary of State to set up an Office for Whistleblowers to receive reports of whistleblowing in relation to economic crime.

[Baroness Kramer (LD)]

My Lords, I understand that the noble Earl, Lord Minto, will reply for the Government on this amendment, which gives me the opportunity to welcome him to his role on the Government Front Bench. We shall look forward to hearing him—indeed, I hope to hear very positive responses from the noble Earl. This is also my opportunity to thank the noble Baroness, Lady Altmann, and the right reverend Prelate the Bishop of St Albans, who join me in proposing Amendment 92. I hope that we will hear from both of them.

My amendment is similar to amendments that I brought before your Lordships’ House in previous Bills in that it sets up an office of the whistleblower in relation to economic crime, which must support whistleblowers, protect them from detriment and ensure that disclosures are investigated and acted on. I will not go into a lot of detail because I have done so often in this House and we are under pressure of time today. However, whistleblowing legislation in the UK is badly out of date. The Public Interest Disclosure Act 1998 provides for confidential disclosure by whistleblowers who are “workers”, which is quite a difficult term. It means employees but not all—it may include some contractors—and there are many people you would think of as being workers who do not count. That group of workers can make disclosures to prescribed people, in this case primarily the financial regulator.

However, of course, most whistleblowers have spoken out long before they make a formal report, having already alerted colleagues and management to wrongdoing. Some firms have decent internal whistleblowing reporting systems, but many do not; for many, it is a system on paper and not a system in fact. Indeed, in many cases, the information disclosed by a whistleblower, even if anonymous, exposes their identity because of the few people who would have access to that particular knowledge.

The consequence is that many whistleblowers are subject to retaliation. Many lose their careers, or, if they are outside contractors or clients, their businesses. If they are workers, they can challenge in an employment tribunal. However, I tell your Lordships now—the Minister can confirm it if he wishes to look—that that will cost them their savings and all they can borrow from their friends; it costs something between £44,000 to £100,000 to be able to bring a case, and of course there is no legal aid. It will drag on for years; we have had cases going on for seven years, finding steadily in favour of the whistleblower but constantly appealed by the institution or employer on the other side.

In the end, most whistleblowers settle and sign non- disclosure agreements. People break down and their careers shudder to a halt as they are informally and very effectively blacklisted. Of course, there is no formal blacklisting, but word of mouth through an industry essentially bars most of them from any future opportunity.

16:15

So it is not a wonder that so many in the UK choose not to be martyrs, knowing the cost, and do not speak out. Those who do so are lauded but then left to fend for themselves. No regulator has ever given evidence to an employment tribunal in defence of a whistleblower. It is no wonder that, in the financial services sector, PPI, Libor, money laundering, derivatives mis-selling and mini-bond scams have all flourished in the UK.

Part of the problem is cultural. The FCA looks to supervision and monitoring to deal with wrongdoing, with whistleblowing as a minor adjunct, and basically treats it as a complaints system. In the United States, the Securities and Exchange Commission declares itself on its website to be the “whistleblowers’ advocate”. Speak to any US financial regulator and they will tell you that they could not police the huge, complex world of financial services, where the incentive of money so often tempts people, without a “citizens’ army”—I am quoting a federal prosecutor—of whistleblowers.

Some 80% of successful financial prosecutions in the US depend on whistleblowers, so let me illustrate with some numbers. Since the Office of the Whistleblower was set up in the Securities and Exchange Commission in 2010, under the Dodd-Frank Act, the SEC and its related regulator, the CFTC, have recovered $2.8 billion, due primarily to whistleblowers. A related $7.2 billion has been recovered thanks mainly to whistleblowers under the Foreign Corrupt Practices Act.

I cannot get equivalent numbers for the UK—perhaps the Minister can—but I can tell you this: in 2021-22, the FCA took significant action on only three whistle- blowing reports and lesser direct action on 96 cases. The Securities and Exchange Commission in the same year took significant action on 3,000 cases, most of them resulting in successful prosecutions. The issue is not just harmful to the UK but a major international embarrassment, with many UK financial whistleblowers now turning to the US regulator; in fact, they do a fairly regular roadshow to try to get the message through that the US regulator is available.

In March, the Government agreed to review the whistleblowing framework, but I am very troubled that I can find no assurances that they are looking beyond minor tweaks. So I ask the Minister very directly: can he assure me that an independent office of the whistle- blower or something similar to that is part of the research that is being done to revise this framework and is under serious consideration?

The FCA has just revised its whistleblowing policy. It carried out a survey, which revealed whistleblowers’

“significant dissatisfaction with their experience of whistleblowing to the FCA”.

It was actually appalling; the FCA could barely find anyone who thought they had had a reasonably satisfactory experience. The changes that it is introducing to deal with this problem focus mostly on informing whistleblowers of what is going on with their information. That is important, but it is the least change that the organisation could make. There is not an ounce of additional protection for whistleblowers who are subjected to retaliation.

I am quite troubled because we have just had the new fraud strategy issued and—I may be wrong because I had to skim it very fast—I cannot find “whistleblowing” or the other term that is sometimes used, “speaking out”, in there. Perhaps the Minister could direct me. I point this out because any auditor or compliance officer will tell you that 40% of fraud in financial services is exposed by whistleblowers and has been missed by the auditors, compliance officers and others who are doing supervision and monitoring. To anyone who thinks that 40% is a satisfactory number, I would say that there should be a whistleblower in every case of wrongdoing. There are always people who know what is happening and know that it should be challenged and reported.

The current situation cannot continue. I am obviously going to withdraw my amendment today, but I want to hear from the Government a real commitment to change, to provide a proper framework and context for whistleblowers—one that includes some form of independent office that can stand up on their behalf, stand between them and the powerful employer or institution, and cover those people who do not qualify as workers. It does not have to mirror the US system; that merely stands as a lesson in what can be achieved when there is not only recognition of the significance of whistleblowing but a commitment to make sure that it serves our community by giving us the earliest possible notice of wrongdoing and acting as an extremely effective deterrent.

[Baroness Altmann (Con)]

My Lords, I support Amendment 92, so ably and powerfully moved by the noble Baroness, Lady Kramer. I have added my name to it because, as I have personally seen, this issue is potentially beneficial yet in practice harmful in the financial services sector. It is very often a career-ending move if somebody decides to blow the whistle on fraudulent practice or wrongdoing in their place of work. I had a friend in the City who ended up blowing the whistle but only because she had already decided she was going to retire. She knew that it would be the end of her career and she did not wish to go to the expense of a tribunal, but it was the early warning that the authorities needed to discover that wrongdoing was going on. The problem we have is that those who are inside are best placed to identify the wrongdoing before it becomes more widely known and before more people are perhaps damaged by whatever the wrongdoing is, yet, as the noble Baroness, Lady Kramer, described, there is inadequate protection to recognise the benefits of having a canary in the coal mine being able to identify directly that something is amiss.

Therefore, I hope that we would be able to accept that having an independent office that can oversee and provide a safe space for individuals to notify their concerns, presumably having raised them internally first, could be very helpful in fighting economic crime and fraud. Normally, you would suggest that somebody raises a concern internally, but they might feel that that could be detrimental—there have been threats to people’s lives when they have blown the whistle, so it is not just a financial matter.

I warmly welcome my noble friend to his place. I look forward to hearing his answer and thank him for his engagement with me so far. I look forward to speaking to him on this issue and perhaps others as we proceed with the Bill. I hope that he will be able to accept that there are reasons why the Public Interest Disclosure Act is inadequate and why putting an amendment of this nature in this Bill makes enormous sense. I hope that we will therefore be better able to uncover criminal offences, fraud and deliberate cover-ups that it is in the public interest to expose rather than waiting for after-the-fact things to emerge having caused much more damage.

[The Lord Bishop of St Albans]

My Lords, I think I can be quite brief thanks to the noble Baroness, Lady Kramer, as I have been able to ditch most of what I was going to say because she has already made it so clear. I was persuaded to put my name to this amendment simply because I met a woman in one of my churches on a Sunday after worship who is currently in precisely this situation, and her whole life has basically fallen apart.

She came across something that it was clear to her was wrongdoing; she agonised for weeks and tried to take advice, which was difficult to get because of confidentiality. Eventually she decided that she needed to blow a whistle. She was immediately suspended, taken through a disciplinary process and dismissed. She is now trying to decide whether she can afford to take this through the courts. Her view is that she would probably have to sell her house to do so. It really is a David and Goliath situation.

As has been said, often the best people to spot what is going on are not necessarily the auditors—they try their best, but it is difficult for them; we see constantly how they do not always manage to spot what is going on and get an accurate picture—but those on the inside. Since the whole of our financial services sector, which is one of our great achievements and a fantastic part of our life, relies ultimately on trust—our greatest currency in this country—the integrity issue absolutely kicks in. In a world in which trust is at a low ebb, this is terribly important.

The reason people give for not wanting to be a whistleblower is the cost. A public consultation conducted by the European Commission revealed that the most common reason for not wanting to come forward with allegations of wrongdoing was simply the fear of legal consequences, which 80% of individual respondents reported as their primary reason. After that came fear of financial consequences at 78% and fear of what it would do to your reputation at 45%. As the noble Baroness, Lady Kramer, said, an informal blackballing goes on behind the scenes. The woman I mentioned is now fairly clear that, even if she wins this case, it is very unlikely that she will ever get another job in the financial sector. These are legitimate fears. A 2021 survey conducted by the charity Protect found that over 60% of whistleblowers reported experiencing negative consequences such as being dismissed, victimised or subject to harassment or bullying.

I hope that His Majesty’s Government will look closely at this or at somehow strengthening how we can support whistleblowers, for the long-term prospering of financial services in this country. I look forward to hearing the Minister’s response to this amendment.

[Lord Cromwell (CB)]

I support Amendment 92 in the name of the noble Baroness, Lady Kramer. I have for a long time supported the better treatment of whistleblowers, who are treated appallingly badly. It is a difficult task, because many organisations—no matter how big their policy on whistleblowing—immediately close ranks against the whistleblower, who often starts out as someone trying to help and not even feeling that they are a whistleblower.

I will illustrate this briefly with two points. When I asked an Oral Question on whistleblowing some time ago, one of our esteemed colleagues, who is no longer with us, was sitting near me and said, “What are you asking about? Whistleblowers? Do you mean snitches?” In my Question, I was going to name someone in the financial services world whose solicitor contacted me minutes before I stood up to say that they had changed their mind and asked me not to name them, because they were so frightened of what would happen to them as a result. That makes a strong case—as do the powerful speeches that we have heard—for having a body such as an office for whistleblowers.

I was on an interesting call a little while ago with people interested in whistleblowing in America. It struck me how interested the investors were. One of them said, “I’ve put several million into this company; I want to hear from whistleblowers and know what’s going on with my money”. You do not hear that often enough. Investors have a direct interest in whistle- blowers delivering proper information about what is going on.

To help bolster even further my emphatic support for this amendment, I have a couple of questions for the noble Baroness, Lady Kramer. First, how would the office do what it is required to under subsections (4)(a) and (4)(b) of the proposed new clause? Secondly, can she clarify—the noble Baroness, Lady Altmann, touched on this—when the office for whistleblowers would come into play? Is it from the beginning or at the end, as a last recourse? How would it interact with the employer? I am not quite clear about how that would work. Fear not: I am entirely in support, but it would help me to have some clarity on those points.

16:30

[Lord Agnew of Oulton (Con)]

My Lords, I support the amendment tabled by the noble Baroness, Lady Kramer. I welcome our new Minister to the hot seat. I will not speak for long because we have heard the main arguments but, for me, as a businessman, whistle- blowing is an extremely cost-effective way of uncovering bad practice at scale. We have so many examples, such as the Post Office Horizon scandal and the Danske Bank laundromat, one of the largest recent financial crimes in Europe, involving some $230 billion of illegal Russian money, which came alive because of whistle- blowing through UK limited partnerships.

We know that the system is not working. Only about 4% of whistleblowers who take cases at the moment end up being successful. They take huge risks, as we heard from the right reverend Prelate. As usual, we are falling behind in the world league of effectiveness. The US National Defense Authorization Act creates a new whistleblowing programme and establishes a private right of action for whistleblowers who have experienced retaliation.

I ask my noble friend the Minister why we are so timid about this. I accept that he is newly in post, but I would like some evaluation of why we are told that a new office for whistleblowers would be expensive. I do not believe that it would be expensive; it would save money because it would create one focal point for all those with legitimate claims to go to, in addition to the money that would be recovered from economic crime. As we also know, we are awash with economic crime, so why not take this simple step towards dealing with it?

[Baroness Blake of Leeds (Lab)]

I add my thanks to everyone who has put so much effort and work into this issue over a significant amount of time. I thank everyone for their contributions, which have given powerful testimony of those who have suffered. We should note the fact that so many noble Lords in this Committee alone personally know people to whom this has happened.

I confirm that we support this amendment and I look forward to the Minister’s comments about the request for creating an office for whistleblowers. As has been said throughout the debate, it is clear that facilitating whistleblowing would go a significant way to tackling economic crime, whether fraud, money laundering or other crimes. I thank the noble Baroness, Lady Kramer, in particular for her comments about the importance of the earliest possible notice of wrong- doing, which is a key point in this discussion.

I emphasise that the stakes remain too high for an informed insider wanting to blow the whistle. This amendment would be a good starting point. I am not convinced that it will solve all the problems, but we need to see some progress. Too many people are suffering and we need to recognise those individuals as well as the impact on the businesses involved. As the noble Baroness, Lady Altmann, said, the sad truth is that too many people wait until they are leaving a company—either moving on to another or, in the case she mentioned, retiring—before finding the courage to stand up.

I understand there is going to be a review, but surely we have an opportunity now, with this Bill, to make some bold change. I thank the charity, Protect, for its briefing under Speak Up, Stop Harm, which has some very important information that we should all consider. To reference the debate that took place in the Commons, there was strong cross-party support, encouraging support and advice for whistleblowers. I am concerned that the government line remains that taking these important steps is too expensive. I really cannot understand that line of argument. Surely, we should regard this as an investment and not a cost. Tom Tugendhat MP promised more discussion on these matters as part of the debate. Can the Minister inform us where this has got to?

We support the creation of an office to give encouragement and support making reports. We want an ability to provide advice and, most particularly, to act on evidence of detriment to whistleblowers where we know that it occurs. The point in the amendment about making an annual report to Parliament is also important. One area on which I think it would be possible to move is to bring forward the requirement for all organisations to have a proper policy in place as a vital and effective route to preventing crime, which would mean that the courts could use evidence of this as good practice.

As I am sure all noble Lords have seen, 65% of callers to Protect’s confidential advice line say that they have suffered for speaking out, which of course is in direct contravention to the Public Interest Disclosure Act and, therefore, as amended, the Employment Rights Act. This is a very serious issue, which should be picked up and dealt with immediately.

On furlough payments, 41% of clients who contacted the advice line who suspected that fraud was taking place were ignored; 90% attempted to raise concerns with their employer before going to the helpline but, unfortunately, many small organisations still have nowhere to go. It is a matter of how these changes could support businesses that want to do the right thing but do not have the wherewithal to do it.

I look forward to the Minister’s responses to all the points that have been made today. Let us treat this issue with the seriousness that it deserves, as it is an important way in which we can help those who have received information that they want to act on. In the spirit of the Bill itself, it is a vital and effective route to preventing crime.

[Lord Browne of Ladyton (Lab)]

I support the amendment and commend the noble Baroness for tabling it, as well as those who support it. I do not intend to go over anything that anybody else has said about whistleblowing, but I agree with them. I am not in any sense an expert on whistleblowing, but I am speaking because I think I have anticipated in two areas what the Government’s response will be. First, I think that we are all conscious that a review of whistleblowing has been instructed. However, I cannot find in any commentary about it or any of the announcements from the Government whether the possibility of that review recommending the setting up of an office of whistleblower is part of its remit. It does not seem to be—and that brings me to the point that I really want to make.

Some of us contributed to the debate on the Private Member’s Bill on the protection of whistleblowing in the name of the noble Baroness, Lady Kramer on 2 December—I think its formal title is the Protection for Whistleblowing Bill—and because Part 2 of that Bill related to the setting up of an office of the whistle- blower, we have had the benefit of the noble Lord, Lord Callanan, telling us what the Government’s position is. I expect to hear that the Government’s position is that the existing framework provides 80 prescribed persons to whom people can legally blow whistles, many of whom are regulators, that the very diversity of that framework does not need this overarching body because it would not be able to deal with the complexity underneath it, and that should a new body have such a function,

“it would require significant staffing resources, with diverse expertise across a range of sectors, to enable it to carry out these functions effectively”.—[Official Report, 2/12/22; col. 2044.]

In other words, it is not necessary.

That can be said, and that framework exists, but to test whether that is right, I ask the Minister in response to tell us just how effective the framework is. What do these existing regulators and others actually do? What does the data show of their effectiveness? How attractive are they to whistleblowers? How many successful processes have there been—how much criminal or other wrong activity has been uncovered by them, say in the last five years or so—and just how effective have those processes been?

I spoke in that debate on 2 December and I spent quite a bit of time looking for that data, but it does not seem to exist anywhere—there does not seem to be any data that shows how successful the existing framework is. Does the Minister have the data on the number of cases that pass through the current regulatory system, as well as the data on the impact of that? If that data shows what I suspect it does—but only from anecdotal evidence because there is no empirical evidence—then this process is ripe for complete restructuring.

For all the reasons shared with your Lordships’ Committee by the noble Baroness, Lady Kramer, so competently and in such an informed way, the obvious restructuring is to follow the success of the United States of America, where the creation of an office for whistleblowing has dramatically improved the effectiveness of whistleblowing to an extraordinary degree.

It seems that the fundamental problem—this is part of the problem we have got ourselves into with economic crime—is that the infrastructure we have in any part, either to prevent, detect or prosecute it, is just not of the scale of what is going on in our country. We need something that concentrates some very special resources in a way that makes whistleblowers comfortable to deal with them, protected by the state when they blow the whistle, and where the information they give is properly acted on so that it has the results that we need. I hope that when, as I expect, the Minister pushes back on this amendment, he will be able to tell us where that is in the existing framework. If it is not there, we need an office for the whistleblower, and when we get it is just a question of time.

This is an opportunity we have now. Most of us in your Lordships’ Committee have experience of just how difficult it is to get opportunities for legislation that makes this sort of fundamental change. We should grasp this one when we have it. If we have to build upon it beyond economic crime later on, so be it, but we should do it now.

16:45

[The Minister of State, Department for Business and Trade (The Earl of Minto) (Con)]

My Lords, I first draw attention to my interest as set out in the register, as a non-executive chairman of Not Another Bill Limited. Secondly, I want to thank noble Lords for their warm welcome to the hot seat, which is much appreciated.

I am pleased to be able to represent the Department for Business and Trade in my new role as Minister of State. I thank all noble Lords for their inputs into the debates so far and express my pleasure at being able to speak today on this amendment. I also thank my ministerial colleague and noble friend Lord Johnson of Lainston, who is indeed in Hong Kong, for his support in preparation for today’s debate.

Moving on to the Bill itself, I thank the noble Baroness, Lady Kramer, for raising the important matter of whistleblowing. As a former co-chair of the All-Party Parliamentary Group for Whistleblowing, she has continuously highlighted the important role that whistleblowing plays in shining a light on wrongdoing. The Government have a significant interest in ensuring that our whistleblowing framework is robust. An effective whistleblowing framework is a vital part of the UK’s ability to tackle corruption and all forms of economic crime and illicit finance. As these acts are by their very nature often covert, those working for an organisation can be a key source of intelligence for authorities.

My concern with this amendment, however, is two-fold. First, these reforms risk duplicating elements of the existing framework, leading to a confused landscape, and potentially at considerable cost. As I understand it, this position was explained by my noble friend, Lord Callanan, during Second Reading of the noble Baroness’s Protection for Whistleblowing Bill in December last year. So I will not go into detail here but, just to recap, the Government are concerned about how such an office would interact with the role of regulators. As has been mentioned, a new body could also come at a considerable cost, as it would require significant staffing resources, with diverse expertise across sectors, to enable it to carry out these functions effectively.

Secondly, it would be premature to make legislative change ahead of the review of the whistleblowing framework, which everybody has mentioned. The review, which the Government launched on 27 March this year, will examine the effectiveness of the whistleblowing framework in meeting its intended objectives—that is, to enable workers to come forward to speak up about wrongdoing and to protect those who do so against detriment and dismissal.

The noble Baronesses, Lady Kramer and Lady Altmann, asked whether the review will consider the merits of establishing an office for the whistleblower. The review will consider evidence related to the effectiveness of the whistleblowing framework in meeting its intended objectives. This is to enable workers to come forward to speak up about wrongdoing, and to protect those who do so against detriment and dismissal. As the right reverend Prelate explained, proper protection is needed against terrible misery and personal risk.

The review will consider a number of topics that are central to the whistleblowing framework. These include: how workers are defined for whistleblowing protections; the availability of information and guidance for whistleblowing purposes; and how employers and prescribed persons respond to whistleblowing disclosures, including best practice. The research for the review will conclude in autumn 2023. The full terms of reference for the review are published on GOV.UK.

There have been a number of very specific questions. I think that I have written down all those on data so, if it is all right with noble Lords, I shall respond swiftly in writing to some of the specific questions that were asked. There is no doubt that there is a lot of data behind this amendment; it is important that proper answers are provided.

[Lord Browne of Ladyton (Lab)]

I thank the Minister for giving way. On 2 December, I asked the noble Lord, Lord Callanan, whether he could provide the data on the performance of regulators and other prescribed persons in relation to whistleblowing, specifically asking the same question that I asked the Minister. He did not answer it then and he has not written to me. Does this data exist? I suspect that it does not.

[The Earl of Minto (Con)]

I do not know whether it exists; if it does, I shall find out and let the noble Lord know. I think it must exist, but we will have to see. The other important issue was the expense of going to a tribunal, which is a very serious issue. My understanding is that the review will certainly take that into consideration.

Not long after taking office, my ministerial colleague the parliamentary Under-Secretary of State, Kevin Hollinrake MP, committed during the Public Bill Committee in the other place to get this review moving. We have followed up on this commitment and continued to deliver on whistleblowing policy. On 17 October last year, the Government laid before Parliament the most recent update to the prescribed persons order. This came into force in December and is a significant improvement to the framework, adding six new bodies and all Members of the Scottish Parliament to the list of bodies and individuals that a worker can blow the whistle to. I hope that demonstrates to noble Lords that the Government are very serious about whistle- blowing.

I welcome the continued constructive engagement on this topic, and I know that Minister Hollinrake has valued the discussions to date with parliamentarians and organisations representing whistleblowers in preparing for this review. However, this amendment could create a confused landscape for whistleblowing, potentially at considerable cost. It would also pre-empt the ongoing review of the existing framework. I therefore respectfully ask the noble Baroness, Lady Kramer, to withdraw it.

[Baroness Kramer (LD)]

My Lords, I thank all noble Lords who have spoken in this superb debate. I thank the noble Baroness, Lady Altmann, and the right reverend Prelate the Bishop of St Albans for giving those personal examples. They bring home to people the experience that we are trying to deal with, so that people can relate to them and ask “Would I be brave enough? Would I let this happen to me and my family?” and understand why whistleblower protection is so important.

There were some specific questions. First, if ever I have seen a red herring, this question of cost must be it. In the United States, the Office of the Whistleblower has turned into a profit centre for the US Treasury, because the number of cases it can drive through and the consequences of remuneration, fines and compensation have meant that it not only covers its costs but can return substantial amounts to the Treasury. The Minister is most welcome to get the latest figures on those. I do not have them in front of me, but he will be able to access them very easily. So cost is not the issue.

We are often told that we will need an enormous, monstrous octopus of an office. That is not what we are talking about. We need a place where people can go and know that their disclosure is absolutely safe. As other noble Lords have said, including the noble Lord, Lord Cromwell, people want to know that there is genuine follow-up on the issue. He asked how the language of my amendment on investigation would work. It would work by acting through the regulators. I have had many a conversation with regulators and, interestingly, they are all desperate for something like the Office of the Whistleblower, because dealing with whistleblowing is completely outside their standard remit—how they structure themselves and hire their personnel. This creates that exchange with the Office of the Whistleblower as a director of the information to the regulator. That dynamic gives us the assurance that there will be action. The office can chivvy if action does not follow.

The noble Lord, Lord Cromwell, also asked how the office of the whistleblower would protect individuals from detriment. This is a very abbreviated amendment because it has to come within the scope of the Bill. My Private Member’s Bill deals with the issue in far greater detail, but the logic of it is basically that, when the office determines that a whistleblower has received detriment, it will be able to order the employer—although this applies to all whistleblowers, so it is a broader picture—to provide compensation. However, if that employer or company decided that the compensation was inappropriate, it could take the office of the whistle- blower to the First-tier Tribunal. But in that case, facing each other, you would have the institution of the office of the whistleblower and the institution of the employer or organisation on the other side. You would not have the David and Goliath situation of a poor, lonely whistleblower who has already spent all their savings and is borrowing money to continue their case facing an employer which can afford to pay for the best counsel in the country and continue to drag out the entire process on appeal after appeal. So it changes that dynamic.

I refer noble Lords back to my Private Member’s Bill. I have always said that I am not precious about exactly how all this is done, but the core principles of it need to be seized and taken. I am sad that the Minister again uses the term “workers”, because there are so many people who blow the whistle, including contractors, suppliers and customers, and they are all often subject to retaliation and blacklisting—and that matters.

I think that I have covered most of the questions that were asked, but I would be glad to continue this conversation off-piste rather than take up more time in Committee today. This is an absolutely fundamental issue. One opportunity in this Bill is to echo how it has been done in the United States, where the Office of the Whistleblower is set within a financial services regulator structure, and this amendment would enable that to happen—or there is the alternative to going to a much broader office of the whistleblower. When you talk to the regulators dealing with education, the National Health Service, nuclear waste or whatever else, they will all say, “For goodness sake, can you take this burden of dealing with whistleblowers off my shoulders? I really need a professional and focused organisation sucking in this information and making sure that I get what I need to act as a regulator”. I can assure the Minister that, while none of them says it publicly, he will find that, privately, the regulators are very much in support of this kind of arrangement. I beg leave to withdraw the amendment.

Amendment 92 withdrawn.

Amendment 93

Moved by

[Lord Coaker]

93: After Clause 187, insert the following new Clause—
“Unexplained Wealth Orders and Vulnerable Adults
(1) The Secretary of State must commission a report each year on Unexplained Wealth Orders where the wealth or property in question was obtained through economic crime.(2) The report must record all cases where Unexplained Wealth Orders have been used in the previous year and revealed cases where property or wealth has been taken from—(a) older people;(b) people living with disabilities;(c) people who use adult social care;(d) adults who lack mental capacity.(3) This first report must be laid before each House of Parliament one year after this Act is passed.(4) Thereafter it must be produced annually.”Member’s explanatory statement
This amendment probes current data kept by the government on property and wealth obtained through economic crime being taken from vulnerable adults.

[Lord Coaker (Lab)]

In the absence of my noble friend Lord Hunt, and with his apologies, I move Amendment 93 in his name. I shall leave the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier, to speak to their amendments, but I agree very much with the points made in Amendment 95.

This is one of those parts of the Bill that we are dealing with in Committee which seems like a very small part of a huge reform that the Government are undertaking with respect to economic crime. However, given that unexplained wealth and the proceeds of crime are an affront to us all, successive Governments—because under the last Labour Government I was involved in the passage of the Proceeds of Crime Act —have singularly failed to ensure that those who benefit from crime do not somehow evade their ill-gotten gains being taken back from them by the state. That is despite the Proceeds of Crime Act and the unexplained wealth orders—and the first part of the amendment would require a report from the Government on unexplained wealth orders.

17:00

It is essential that the Government do this and come forward with a report—no doubt the noble Lord, Lord Faulks, and others will emphasise this—because, while these unexplained wealth orders have been available since January 2018, only nine have been issued, in four cases. According to a House of Commons research paper dated April 2022, none have been issued since the end of 2019.

In the absence of a regular report, can the Minister update the Committee on how many unexplained wealth orders there have been, how much money we have been able to get back from criminals as a result of them, and why the uptake is so low? I read the Government’s paper with respect to this. It basically says that it is very difficult and technical, that we have to proceed carefully, and that it is just one tool in the box.

I know the Minister will not thank me for my next question. With unexplained wealth orders vastly underused, the Government’s key facts paper talks about the need to use the Proceeds of Crime Act. It says that

“the Proceeds of Crime Act 2002 is a complex and technical Act and reform requires careful consideration and consultation”.

Will the Minister comment on why it has taken 21 years for that careful consideration and consultation to take place? The Government say that, except in certain circumstances, unexplained wealth orders are not really necessary because we have the Proceeds of Crime Act; but the Proceeds of Crime Act is regarded as inadequate by the key facts document that the Government themselves published just a year ago. It says that reforming the Act will be difficult and will require careful consideration. Well, it is now 21 years later. Can the Minister update us on how that is going and what has taken place?

Amendment 93 seeks to probe for information on the numbers of unexplained wealth orders, why they have not been used very much and what the actual figures are now. Given that we do not have a report, the Committee needs to have the facts in front of it. The amendment also seeks to understand the impact. Often, when we hear about unexplained wealth orders recovering money et cetera, we think about big criminals, money and investors. The amendment seeks to understand what is happening with respect to unexplained wealth orders in the cases of the different groups of people that it lists. It is clearly probing the Government, asking what the impact has been for

“older people … people living with disabilities … people who use adult social care … adults who lack mental capacity”.

Do the Government have any understanding of whether any recovery action taken under the Proceeds of Crime Act, or through unexplained wealth orders or other measures, has come about as a result of fraud against some of the categories that I have just listed? These are vulnerable people; they deserve our support. It will be interesting to understand how the legislation deals not only with big corporate fraud, kleptocrats and so forth but with some of the people who many of us meet who have been the victims of fraud. We would want to do all we can to protect them.

Having made those brief remarks, I will be interested to hear the comments of other noble Lords and the response of the Minister. I beg to move.

[Lord Young of Cookham (Con)]

My Lords, I shall speak briefly to Amendments 93 and 95. Amendment 95, in the names of the noble Lord, Lord Faulks, and my noble and learned friend Lord Garnier—who, sadly, cannot be here—is closely related to Amendment 93 but has a key difference in that subsection (3) of the proposed new clause says that the annual report must detail how much money has been brought in and how much has been spent in securing it.

UWOs were introduced by the Criminal Finances Act 2017. At the time, I was Treasury spokesman in your Lordships’ House. I have no recollections of piloting this legislation through, but I have some memories of some of the statutory instruments that flowed from it. The background was that this had been tried in other countries with varying degrees of success. I do not think anyone can argue with the principle: an individual has at his or her disposal substantial sums of money for which there is no reasonable explanation—they may be an official working for, or who used to work for, some totalitarian Government, whose official salary in no way could support their standard of living. I see the case for UWOs but, as we just heard from the noble Lord, Lord Coaker, they have not been a stunning success.

When the Bill was going through, the noble Lord, Lord Faulks, tabled some amendments to give the SFO more powers but also to understand the ambition of the Home Office with that legislation. A Home Office assessment in 2017 predicted that there would be about 20 UWO applications per annum. We just heard from the noble Lord, Lord Coaker, that, to date, there have been nine applications against four individuals, with not a lot of money realised. In fact, in one case, the cost of failure against the Aliyev family was about £1.5 million. Since then, we have a cap on the costs that can be awarded against the SFO or the prosecuting authority, but I wonder whether that goes far enough and whether we should not provide that there should be no order for costs against the SFO unless the proceedings were brought maliciously or without any reasonable justification. That would place a burden on the person against whom the UWO was claimed to show, in effect, that the institution of proceedings was abusive.

Related to this, last year the register of overseas entities was introduced, following the invasion of Ukraine. A Joint Committee, chaired by the noble Lord, Lord Faulks, looked into the register of overseas entities and to what extent it could relate to the UWOs. Can my noble friend the Minister update us on that? The register should provide some valuable information in seeking an UWO, and a failure to provide relevant details, or the provision of inadequate details, would clearly be of immense value.

However, at the heart of the problem is something that the noble Lord, Lord Browne, referred to in a previous debate: the inequality of arms in the firepower available to each side. The targets, by definition, will be well resourced, and the SFO considerably less so. This is not the first time in our debates on this Bill that we have emphasised the importance of resources in the fight against economic crime.

My final point is this: we have had two Bills in quick succession on economic crime, and I think we can now expect a legislative silence in this area while Governments of whatever complexion concentrate on other issues. Hence the importance of a provision to keep the Government up to the mark in telling Parliament how they are using the valuable powers that Parliament gave them with the UWOs. That, in effect, is what these two amendments seek to do.

[Lord Trevethin and Oaksey (CB)]

My Lords, having spoken briefly to the noble and learned Lord, Lord Garnier, who regrets that he is not able to speak to his amendment, I think I know broadly what he would have said, and I agree with him. I shall try to articulate it briefly.

The point made by the noble Lord, Lord Cookham, about inequality of arms in this area, is critical. It is very strange and troubling that there have been so few applications of this nature since the jurisdiction came into existence, and the reason, unquestionably, is that the SFO, which is responsible for deciding whether to make these applications, is understandably very wary of the cost consequences of losing.

As the noble Lord, Lord Young, said, by definition, the respondents to these applications will be well resourced. They will retain City firms whose partners charge £600, £700 or £800 an hour or more—and, in responding to the applications, which will tend to raise quite tricky points of fact and complex issues of foreign law, they will swiftly run up legal bills that extend to hundreds of thousands, even millions, of pounds. If the principle that the loser pays applies to these applications without qualification, the cost consequences of losing, from the point of view of the regulator or prosecutor, will be a considerable deterrent to making applications, even when there is obviously a good reason to do so.

The points that I am considering in these short remarks may come into focus later on this afternoon when we discuss another amendment. The reason for me making them now is that it seems to me that the information that would be yielded by the amendment in the names of the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier, would be of great value both to Parliament and to those who make decisions in this area in deciding how the regime needs to be restructured so that applications are made when they should be made.

[Lord Fox (LD)]

My Lords, I will speak briefly because we have heard some excellent speeches from the noble Lords opposite.

I just want to say, observationally, that we have debated a number of different groups where inequality of arms has been at the centre. When we talked about SLAPPs, we talked about inequality of resources. We have just talked about whistleblowing, where it is the same issue, and here we are again. In a sense, the Government are in different places with different elements of this. We need to have some sort of integrated response on how all people can be equal before the law because they can afford to do it—in other words, they can afford not to win, which is the issue here. We have our law enforcement agencies, we have perfectly innocent people going about their businesses trying to blow a whistle, and we have people who are trying to report issues publicly but are being SLAPPed. All of these important elements are being blocked through the inequality in access to the courts.

To refer back to this group of amendments, it seems to me that, if this amendment is not the answer, there must be some other answer. I look forward to the response from the noble Lord, Lord Sharpe, because it is quite clear that unexplained wealth orders have failed to deliver on whatever promise they may have had. Perhaps the Minister can explain how many of them there have been and what exactly the barrier has been, as well as what the cost per prosecution would be; that is an interesting point of view.

In the end, this is about inequality of arms. The first point here is that the Government must recognise that this is an issue; they then have to settle down and find ways of working with people who understand the law in order to eliminate that inequality. Otherwise, most of what we are talking about here will not happen.

[Lord Leigh of Hurley (Con)]

My Lords, I am prompted to rise by the words of the noble Lord, Lord Trevethin and Oaksey. I think he was referring to Amendment 106C, which we will come on to later this afternoon and which would extend the costs cap beyond UWOs. In the certainty that my noble friend the Minister will seek to ensure that Amendment 106C is agreed to, let me simply say that the amendment we are debating now, in the names of the noble Lord, Lord Faulks, and my noble and learned friend Lord Garnier, would be complementary and extremely helpful to Amendment 106C.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank noble Lords for proposing their amendments. I thank the noble Lord, Lord Coaker, for moving Amendment 93 on behalf of the noble Lord, Lord Hunt of Kings Heath. I also thank the noble Lord, Lord Faulks, for Amendment 95, which was spoken to by my noble friend Lord Young. Both amendments relate to reports connected with unexplained wealth orders, henceforth known as UWOs.

I turn first to Amendment 93, which would require the Government to lay annual reports on UWOs where the property has been obtained through economic crime and taken from vulnerable adults. Economic crimes not only result in financial gain for criminals but leave a trail of suffering. They inflict financial and personal loss, including on the most vulnerable members of our society, which this amendment importantly recognises.

17:15

Protecting victims is a key component of the Government’s economic crime agenda. That is why we are providing £30 million to the City of London Police over the next three years to: improve the support services and reporting tools for victims; provide greater intelligence and insight to policing for investigations; and to expand the Action Fraud National Economic Crime Victim Care Unit. As part of the new Action Fraud work, better victim data will be provided to police forces to help them safeguard and provide bespoke prevention and protect advice to victims.

However, this amendment will not result in the outcome the noble Lord is aiming for. UWOs are investigative tools used to gather information relating to property suspected to be purchased with the proceeds of crime. The information which may be requested as part of the UWO process relates specifically to the interest of that individual or company in the property, and the legitimacy of it.

In answer to the questions from the noble Lord, Lord Coaker, about why UWOs have been used infrequently since their introduction in 2017, they are only one of a number of tools in the arsenal to investigate and recover the proceeds of crime and are used where there is not already enough information to proceed with civil recovery. They should not be viewed in isolation.

In 2020-21, just under £219 million of the proceeds of crime were recovered within England, Wales and Northern Ireland. This continues the general trend of improved performance since 2016-17. In addition, more than £979 million-worth of assets were restrained, frozen or seized in the course of investigations under POCA—I will come back to that in a second—in 2020-21. This includes £614 million restrained through restraint orders, £124.4 million of cash seizures, £99 million of bank accounts frozen using AFOs and £2.6 million of listed assets seizures.

In terms of the numbers, UWOs have been granted in four cases since their introduction in relation to assets with a combined value of £143 million. In October 2020, property worth an estimated £10 million was recovered following the use of an UWO, and they have been applied for in two further investigations.

In answer to the noble Lord, Lord Coaker, about why there has been no reform of POCA for 21 years, in fact there has been. In 2017, the Government significantly reformed and updated the Proceeds of Crime Act by way of the Criminal Finances Act. That Act introduced UWOs, account freezing and forfeiture powers, among other things. AFOs are some of our most valuable powers to date. Prior to that, POCA was reformed in 2009 and 2015. Of course, it is necessary to periodically update these powers to ensure that we keep apace with the criminals and their changing methods.

The amendment will not provide the dataset it seeks and it is not clear how the information that it seeks to obtain would enhance our efforts to improve the experience of victims of crime. Data is already collected on the demographics of victims of crime through the Crime Survey for England and Wales, which would provide a more complete dataset to assist policy development and scrutiny. Existing reporting systems will be able to provide fuller datasets than could be obtained using the UWO framework. I therefore ask the noble Lord to withdraw that amendment.

Amendment 95, which, as I said earlier, was spoken to by my noble friend Lord Young, seeks to require annual reports on UWOs that detail the costs, the value and the nature of the assets subsequently recovered, and the cost of the proceedings. The Government agree with the need to be transparent on the use of UWOs. A measure was introduced in the Economic Crime (Transparency and Enforcement) Act to lay before Parliament annual reports on the number of UWOs that were applied for and obtained each year. The first of those reports will be laid in September.

The additional information requested by this amendment is somewhat different. It should be borne in mind that the agencies that apply for UWOs act independently from government. The costs involved in obtaining a UWO depend on a complex range of factors and operational decision-making: for instance, whether the UWO requires international conversations with overseas partners. The scope to make these decisions freely is important for maintaining operational independence. The Government are committed to recovering more assets from criminals year on year, regardless of whether UWOs are the preferred tool of investigation. The measures in this very Bill will ensure that agencies have as comprehensive a toolkit as possible to support that objective.

It is important to note, as I said earlier, that UWOs are a powerful tool of investigation, but they are just one of a range of powers available to law enforcement agencies to support asset recovery investigations. I have already referred to the £979 million-worth of assets that were restrained, frozen or seized in the course of investigations under POCA in 2020-21.

In addition to the UWO report that I have mentioned, the next iteration of the Asset Recovery Statistical Bulletin will be published on 1 September. This will provide transparency on the use of the full suite of powers at agencies’ disposal. I hope that provides reassurance to the noble Lords, Lord Coaker and Lord Faulks, and my noble friend Lord Young, and I therefore kindly ask them not to press their amendment.

[Lord Fox (LD)]

The Minister set out some interesting statistics. It is clear that UWOs have been accountable for a very small proportion of the total amount of money recovered. The Minister referred to them as a powerful tool. Is he satisfied that UWOs are reaching their potential, in which case we would conclude that they are relatively insignificant compared to the other tools in the hands of enforcement, or are UWOs failing to meet their potential and not as powerful as they could be? Clearly, they are not generating very much money compared to all the other tools available to the enforcement agencies.

[Lord Sharpe of Epsom (Con)]

I am not sure that the question is entirely valid with regard to generating money. The fact is that, since their introduction in 2017, four of these have been issued in relation to assets with a combined value of £143 million. In October 2020, property worth an estimated £10 million was recovered, following the use of a UWO, as I have already said. As for whether the scheme is succeeding or failing, it is not for me to say. I am unable to do so, because I do not have access to the operational decision-making that goes into issuing them, and so on. These are operational matters.

[Lord Fox (LD)]

I accept that it is not for the Minister to say; who does say whether they are succeeding or failing?

[Lord Sharpe of Epsom (Con)]

I have already said that we will publish a number of reports on this on 1 September, so I would hope for some more clarity then, but I shall endeavour to find out more information and report back to the noble Lord.

[Lord Leigh of Hurley (Con)]

I share the disappointment expressed by other noble Lords. When UWOs first came out, I was very pleased to see them. They are a classic accountancy tool to establish what is going on in respect of an individual who may have accumulated wealth in an unexplained way. It is incredibly disappointing to learn that so few have been issued with, frankly, teeny sums of money, given the nature of the world that we are discussing. Can my noble friend take back our concerns to his colleagues and, in particular, ask whether targets could be set for the coming year on the number of UWOs that might be issued and the amount of funds that they might realise?

[Lord Sharpe of Epsom (Con)]

I am certainly happy to take my noble friend’s concerns back but, as regards targets, that would invite me to stray into operational matters, which I will not do.

[Lord Coaker (Lab)]

I thank the Minister for his reply, although I also share that disappointment. I should have thought that the focus of the noble Lord, Lord Young, speaking on behalf of the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier—as I am speaking on behalf of my noble friend Lord Hunt—was to ask the Government to bring a report, even if that is not the appropriate way of doing it, and say to them that the operation of UWOs is simply not working as they expected. It is perfectly reasonable for a Minister of the Crown, while of course not interfering with the operational independence of the police or any other law enforcement agency, to look at the legislation and see whether it is working as the Government expected. Clearly, it is not, so it would be a perfectly reasonable response to say that nine applications, four cases and the odd bit since is simply not what anybody would have thought acceptable or thought would happen.

This happens with legislation; even if we had the Government of our dreams, laws would be passed that did not function or operate in the way we would want—but that is the purpose of Committees such as this. This is where, to be frank, Ministers listen to what is said and respond that they will take the matter back and that it is unacceptable, rather than come off saying that it is one tool in the box of government in dealing with the issue.

The Minister had a pop at me. I was only using the facts that are available in a government document called Fact Sheet: Unexplained Wealth Order Reforms. If the facts I am giving the Minister are wrong then, frankly, the Government should have updated the facts, because this is what all of us use in these debates. I have not made it up—I have read the Government’s material. The Minister then turns around and says that the noble Lord, Lord Coaker, has not got it right, because the up-to-date figures are X, Y and Z against POCA. It might have been helpful to have the key facts.

Again, I read out,

“the Proceeds of Crime Act 2002 is a complex and technical Act and reform requires careful consideration and consultation”.

Then the Minister had a go at me and laid out four Acts of Parliament that have been done since. Why were they not included in the key facts? It would have been helpful to everyone to understand the way in which it had been reformed to see whether it is now working and functioning as the Government want it to. I do not have five floors of civil servants providing me with a brief that says there are four pieces of legislation which have updated and improved it. The serious point is that, when I and other members of the Committee depend on the government document setting out the key facts in relation to what we are discussing, it should be up to date. That is the only point I want to make.

I do not know whether the figure that I was going to use is out of date. A number of members of the Committee made the point to the Minister that, if it is hundreds of millions that have been recovered over a number of year, that is peanuts. The reason I say it is peanuts—the Minister will correct me if I have got this wrong—is that Fact Sheet: Unexplained Wealth Order Reforms says under the heading “Key Facts”

“Serious and organised crimes … for example”—


and lays out various things—

“are estimated to cost the UK economy £37 billion per year”.

That is not my figure. The key facts document published by His Majesty’s Government says it is £37 billion a year. I should have thought that the response to what are clearly probing amendments about reports would be, “It is £37 billion a year, we are getting a few hundred million there, we are getting £100 million there, £50 million there”. Why are we not making more of a dent into what we all, including the Minister, regard as simply and utterly unacceptable? The Minister will think it is unacceptable that we have that.

Of course, I shall not move the amendments, but I hope the Minister will take back the bureaucratic point about ensuring that the key facts documents that we use in our deliberations are updated. I hope that he will also talk about the point that unexplained wealth orders were brought in as a way for the Government to address the problem, which the noble Lord, Lord Young, and others mentioned, that huge sums of money surround individuals who have no legal way of explaining how on earth they got them.

I shall raise one other point, because it drove me mad when I was a Member of Parliament and before that a local councillor. On estate after estate, on housing area after housing area, it drove people who went to work mad to look down the road and see somebody who did not go to work driving a Ferrari, or something like that. At an individual level, that is exactly what all of us feel more generally about what is happening nationally and internationally, where people are playing the system. The vast majority of law-abiding business men and women and businesses conform to the law, pay their taxes and do their best—but £37 billion a year is lost to fraud. In answer to the noble Lords, Lord Fox and Lord Young, and me, the Minister talked about getting £10 million here and £100 million there. I am pleased that we got that, but it is peanuts compared to the amount of money that we are talking about. I hope the Minister can take that back—

[Lord Sharpe of Epsom (Con)]

As the noble Lord has drawn on the key facts document, it is important for me to provide a bit of clarification. It was published on 4 March 2022 for the previous Bill, not this Bill. Those numbers were correct at the time of publication. On UWOs, they have been applied for—I have said how many times—and two of the applications have been made since the Government reformed the UWO regime last week, which I should have said while I was answering noble Lords. Perhaps that provides a bit more clarity. On the key facts, the three floors of civil servants are in the clear.

17:30

[Lord Coaker (Lab)]

On the various facts that the Minister has brought forward, I just went to the latest fact sheets. For example, I have an overarching fact sheet for the Economic Crime and Corporate Transparency Bill. It was updated on 11 April 2023. If that one can be updated, this one can. Are we going to play at dates? All I do is go to the latest available fact sheet. I have another one here, which I shall use in our next debate—and I hope that that was updated on 11 April 2023. So the fact sheet that I cited was from 4 March 2022; I understand what the Minister said. However, these are the latest facts that I have used. What is a member of the Committee supposed to use, if they cannot use a fact sheet and cannot find the latest one? One assumes that it is the right fact sheet. It does not say, “Fact sheet: unexplained wealth order reforms as per a particular Bill”. Oh, I correct myself—it says that at the top. But the truth of this is that what all of us seek to do is to use facts, and all I did was to use the most up-to-date fact sheet. I hope that the one dated 11 April 2023 is the latest one and there is not one from 4 May 2023, which the Minister would be able to correct me about again.

I beg leave to withdraw the amendment.

Amendment 93 withdrawn.

Amendments 94 to 101 not moved.

Amendment 102

Moved by

[Lord Fox]

102: After Clause 187, insert the following new Clause—
“Home Office review of the Tier 1 (Investor) visa scheme: publication
Within a day of the day on which this Act is passed, the Secretary of State must publish in full the findings of the Home Office review of the Tier 1 (Investor) visa scheme which relate to economic crime.”Member’s explanatory statement
This amendment would require the Home Office to publish findings of their review of the Tier 1 (Investor) visa scheme.

[Lord Fox (LD)]

My Lords, this is a mixed set of amendments. I do not think that we will debate the philosophy of what a fact is, although we may come back to that in a few minutes. I rise to move Amendment 102 on behalf of my noble friend Lord Wallace and to speak to both an amendment in my name and a series of amendments in the name of the noble Lord, Lord Coaker.

Amendment 102 refers to tier 1 investor visas, otherwise known as golden visas. As I am sure the Minister will jump up and tell me, the scheme was closed relatively recently, but that is not the point of this amendment. We know that the scheme allowed individuals with a high net worth into the UK through the investment of large sums. We also know that, during its operation, it became increasingly clear that there was abuse, or the possibility of abuse. Visa beneficiaries under the scheme largely came from Russia, former USSR states and China, more so than from any other third country. It must have been clear to the Home Office and others that the sources of the wealth of many of these applicants were dubious at best.

The scheme was closed in February 2022. When it closed, the Government promised a review into so-called golden visas, because they were clearly an issue and something that needed to be reviewed so that we could find out what went wrong and ensure that future decisions did not make similar mistakes. It was, therefore, an object of some despair when, instead of publishing the findings of the review in full, the Home Secretary published a Written Statement in January this year with a summary of the review’s findings. The Statement told us what we already knew, in fact, but not much more. The scheme had been used by individuals who were, to quote the Statement,

“at high risk of having obtained wealth through corruption or other illicit financial activity, and/or being engaged in serious and organised crime”.

It also told us that this concerned a

“small minority of individuals”

who had obtained visas under the tier 1 investor route but gave no indication of the actual figures on where a risk had been identified. More than 6,000 visa holders were reviewed. What is a “small minority” of 6,000? How many were at risk?

We also know that 10 oligarchs who had been sanctioned as part of the response to Russian aggression in Ukraine used this scheme. How many more applicants with ties to Putin have been given visas that allowed them to embed themselves in the UK economy and UK society? Are any still in the UK? If so, have they gone through the process of acquiring citizenship? The Statement answered none of these questions.

This amendment would require the findings of the review, where they relate to economic crime, to be published in full. It is a review of a scheme that, according to the Home Office, attracted a disproportionate number of applicants from the countries identified as being particularly relevant to cross-border money-laundering risks faced and posed by the UK. As I said, the scheme benefited Russian and Chinese oligarchs above all. Key questions remain unanswered. Parliament needs to know what went wrong so that we can hold the Government to account in future. We are entitled to know more about what the Home Office conducted in this review and the impetus that it gave to various other elements of what we are seeing now. In other words, has anything learned from the review seen its way into the legislation that we are now talking about? If not, why not?

The refusal to publish either this report or the fuller details of Russian penetration into British politics, which the ISC recommended should be published, makes it difficult not to conclude that the Conservative Government have some significant and embarrassing issues to hide, most probably around donations to the party. If the Minister has nothing to hide, I am sure that he will be able to announce the publication of these reports.

As I said, I also want to speak to Amendment 104 in my name, which has, to some extent, a similar motive to the three amendments proposed by the noble Lord, Lord Coaker. Without putting words in the noble Lord’s mouth, I suspect that, like me, he is an enforcement sceptic. He is sceptical not about the need for enforcement but that sufficient enforcement will support the legislation we have spent all this time debating. My amendment is one way of trying to expose the resources and the effect that they are having. I am sure that the Minister will step forward and tell us that the NCA publishes an annual plan but Amendment 104, particularly subsection (3) of its proposed new clause, sets out a rather different set of things that we would need to know but which are not currently included in the annual plan published by the NCA.

I am quite happy to support other ways of doing this, which the noble Lord, Lord Coaker, is probing, but, at the heart of this, Parliament needs to know how effective enforcement is and that the primary agency running the enforcement process has the resources it needs in order to meet the challenges that it faces. Those challenges are getting bigger, harder and more sophisticated every day. This is one way of exposing whether the resources are sufficient and what Parliament needs to worry about in future in terms of delivering support to agencies so that they can actually enforce these things. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I have attached my name to Amendment 102 in the name of the noble Lord, Lord Wallace of Saltaire. I begin by quoting the noble Lord, Lord Evans of Weardale, who chairs of the Committee on Standards in Public Life. Speaking in this Room last year, he said that

“we have clearly, as a matter of policy, turned a blind eye to the perpetrators of corruption overseas using London for business or leisure purposes”.—[Official Report, 13/10/22; col. GC 156.]

The golden visa scheme was clearly a significant part of that issue, as highlighted by the noble Lord.

I begin by paying great tribute to the noble Lord, Lord Wallace of Saltaire, who has been an absolute terrier—no, that sounds too small. A bulldog is better.

[A noble Lord]

A Yorkshire terrier.

[Baroness Bennett of Manor Castle (GP)]

We will not get into that one. The noble Lord, Lord Wallace, has been an absolute bulldog in pursuing this issue over a number of years. The reason why I chose to attach my name to this amendment is that I worked with the noble Lord on this issue, during my modest role in what became the Financial Services Act 2021. As the noble Lord, Lord Fox, outlined so clearly, we must be able to diagnose the illness fully if we are to find the medicine we need to deal with it. At the moment, we are not being allowed to see that diagnosis; we are getting a very rough, top-line kind of summary.

As the noble Lord, Lord Fox, said, we know that more than half of the visas issued—some 6,000—were being reviewed in 2022 for possible national security risks. Being told about a small minority does not get us anywhere near where we need to go. We are looking at this particularly in the context of the Russian attack on Ukraine and the current geopolitical situation. More than 200 Russian millionaires bought their way into the UK in the seven years after the scheme was supposedly tightened, before it was finally closed. We have to look at that with respect to security issues as well; we are talking about economic crime here but economic crime and security are surely interrelated. We need to know about those issues.

This amendment deals only with the review relating to economic crime. I am sure that that is because the Bill Office said that anything broader would be out of scope—I have no doubt about that—but it is worth putting on the record that, to learn lessons for the future, we need to assess the impact of the scheme much more broadly. I do not know whether the Home Office report looked at this—I cannot see it—but it would be interesting to see what impact it has had on our current housing crisis and on house prices; surely it has had an impact.

It is also worth highlighting the broader impact of entrenching wealth-based and racialised inequality in the UK. Take the contrast between the 250 family members and dependents of the Russian millionaires who came in versus the fact that so many British people are unable to live in their own country with their foreign spouse or partner because they do not earn enough money to be able to do so. That contrast is really shocking; we should be looking at the impacts of that on our society. These golden visas were a disaster. We can only understand that disaster and seek to deal with its effects if we are open about the Government’s own report.

[Lord Coaker (Lab)]

My Lords, I support much of what the noble Baroness, Lady Bennett, and the noble Lord, Lord Fox, have said. In speaking to my amendments in this group, I start by welcoming the publication of the fraud strategy last week. I know that the Minister has been pushing for it to be published as speedily as possible; its publication is helpful to the Committee.

The fundamental question behind much of what I am going to say is this: how will the fraud strategy published last week answer some of the problems that have been raised—indeed, that I will raise? My Amendments 106B, 106EA and 106EB are clearly probing amendments but they have at their heart the question posed by the noble Lord, Lord Fox: how will the Government bring together all this legislation, statutory instruments, enforcement papers, reforms of Companies House and so on? How is all of that in the landscape of government being brought together, co-ordinated and made effective? It is not an easy question to answer but, looking at all these things, they seem cluttered, to say the least. Even with this Bill, things are cluttered. Some sort of review or report to Parliament to try to do something about that would be helpful. Does the fraud strategy do that? How will the strategy report to Parliament to see whether it has been successful or not?

17:45

As I say, Amendment 106B suggests an economic crime committee, and Amendment 106EA a report on the economic crime investigation and prosecution framework. I want to leave Amendment 106EB, on the reform of the Serious Fraud Office, to one side at the moment. Again, I used the factsheet—it is from 11 April 2023, the Committee will be pleased to know, being the most up-to-date one I could find on this. I read it because it talked about economic crime in the UK and the Government’s response to it. It says:

“The National Crime Agency … is the national agency that leads the response to serious and organised crime”.

Is the new unit that the fraud strategy is establishing all within the National Crime Agency, and how does that work? It goes on:

“The … National Economic Crime Centre … is a multi-agency centre that was established to deliver a step-change … The NECC brings together … the NCA, Serious Fraud Office … HM Revenue and Customs … Financial Conduct Authority … Crown Prosecution Service … the City of London Police … and police forces across England and Wales”.

How is that co-ordinated, and what does the fraud strategy have to say about that? Alongside that, the factsheet says that there are

“three statutory supervisors of anti-money laundering and counter-terrorist financing … the Financial Conduct Authority, HMRC, and the Gambling Commission. In addition, the Office for Professional Body for AML Supervision (OPBAS) is an oversight body for the legal and accountancy professional body supervisors”.

Your Lordships can see what I mean by it being cluttered, and that it is unclear who does what. In my experience of some of these things, if you are not careful, everyone is responsible but nobody is. Who holds the ring?

The Government themselves recognise that this is a problem because the factsheet says:

“The private sector organisations involved in our response to economic crime are even more diverse”—

those are the Government’s own words. Therefore they accept that the first group that I talked about was diverse but the private sector is “even more” diverse. The factsheet then goes on about how

“International standards … are set by the Financial Action Task Force”.

Again, I am not trying to be sarcastic; I am just saying that all this is a landscape within which the Bill will operate, so who will do what, and does the fraud strategy sort it out? I do not know.

I would have thought that the fraud strategy would have something to say about the current legislative framework. That is partly what my amendments are trying to get to—for example, Amendment 106EA, where I talk about the need for a report on the economic crime investigation and prosecution framework to assess all the various bodies involved. Noble Lords in the Committee may want to guess how many Acts the current legislative framework says deal with this area, according to this key facts document: eight Acts deal with all this legislation. I thought that the Economic Crime and Corporate Transparency Bill, or 2023 Act, as it will soon be, will no doubt co-ordinate some of this and reduce the number. In fact, from what I can see, it is number nine. I say that because number eight is the Economic Crime (Transparency and Enforcement) Act 2022.

The question is, how is all that brought together and made effective, and how does it work? Who holds what ring, who says who is doing what, and who says who is achieving what? The amendment that the noble Lord, Lord Fox, proposed, asks exactly the same question. It is not about trying to be cynical about the aim. We all support the Bill, but the Government need to get a grip of this, and does the fraud strategy do it? How will we in Parliament know whether the fraud strategy is doing it or not?

I wanted to mention the report on the Serious Fraud Office, which was included in this. I am not an expert on the Serious Fraud Office—I guess that other noble Lords in the Room will know more about it than me. However, I saw it as one of the major bodies responsible for delivering the points that the Government would want. Then I saw in the Financial Times of 9 April 2023 the headline:

“Collapse of Fraud Case Triggers Demand for Overhaul of UK Disclosure Rules”.

I shall not go through all that, but that article talks about the complete collapse of many high-profile cases that the Serious Fraud Office has brought to deal with fraudulent behaviour, and mentions Serco, G4S and others. I wonder: is the Serious Fraud Office working in a way which the Government are happy with, and if it is not, why are these articles wrong, what will the Government do about it, and does the fraud strategy sort that out?

Then I read another article, this one from the Institute of Economic Affairs. It was published on 28 March 2023 and is headed, “Serious Fraud Office rife with failure”. It involves an interesting former Justice Secretary, Sir Robert Buckland, saying that he

“calls for ‘urgent and thorough examination’ to prevent repeating SFO’s past mistakes”.

I want to highlight just a couple of headlines. The article states:

“The Serious Fraud Office is responsible for a series of expensive and high-profile failed prosecutions, unlawful prosecutions and breaches of the Civil Service code”.

Is the fraud strategy going to sort that out? It continues:

“The SFO’s long record of failure demonstrates the need for reform, which could include abolition and reallocating its powers to other government agencies”.

Are the Government thinking about that or has the report got it completely wrong? It goes on:

“The Serious Fraud Office has a history of unprofessional behaviour and spectacular prosecutorial failures. This is according to a new paper from the Institute of Economic Affairs”,

which is the one I have read. The article states:

“The SFO has failed to disclose potentially exculpatory evidence, mishandled documents, used unlawful search warrants, undertaken inadequate legal analysis, made spurious allegations, and, in one case, forged a letter”.

The Serious Fraud Office is not functioning well and is in need of serious reform. What are the Government doing about it?

These are serious points. I hope that, in responding to this debate, the Minister will give the Committee some reassurance about this cluttered landscape and what the fraud strategy will do about it. Also, just as importantly—my Amendment 106EB refers to this—what will the Government do to report on the performance of the Serious Fraud Office as it stands? Are all the reports wrong that say that it is dysfunctional? If they are wrong, where is the Government’s statement saying that they are all wrong? How will the fraud strategy sort this out? What on earth are the Government going to do about this?

I go back to what the noble Lord, Lord Fox, and other noble Lords have said all the way through the passage of this Bill. We basically support the Bill and want it to work, although there are improvements that need to happen. However, if the Bill has no teeth and no enforcement, and there is no way in which it will change the culture and deal with some of its seriously dysfunctional parts, it will not achieve what it wants. That is not what we want. Everyone in this Committee wants it to succeed, so I hope that the Minister will respond positively to my amendment and those in the names of the noble Lord, Lord Fox, and the noble Baroness, Lady Bennett.

[Lord Faulks (Non-Afl)]

I want briefly to add to that. I am sure that the Serious Fraud Office is full of capable and conscientious men and women who go about their jobs with enthusiasm. However, they are often pitted against rather formidable adversaries in terms of lawyers and the resources that are available to those lawyers to defend people who are the potential targets of the Serious Fraud Office.

It may be that one of the problems with the Serious Fraud Office is the career structure. The American equivalent often engages lawyers with very considerable abilities who are at a relatively stage in their practice. They may not be paid particularly well when they do it, but it is a feather in their cap. In other words, the Serious Fraud Office’s equivalent in America often has extremely high-quality lawyers. I wonder whether thought has been given to restructuring our whole approach to those who prosecute these matters so that we can somehow incentivise the very best people to get engaged in this business to render the playing field a lot more level than it currently is.

[Lord Agnew of Oulton (Con)]

My Lords, I rise to support the amendments tabled by the noble Lord, Lord Coaker, in particular Amendment 106B. He is becoming quite an expert on an area that has troubled me for 18 months or so.

The figure of £37 billion used in Amendment 95 is only a small part of the story. The National Audit Office talks about a separate £30 billion bottom-end estimate of losses to fraud in the public sector, so this is a huge issue; that is why I have tried to put as much effort into it as I can. The noble Lord, Lord Coaker, made the point that it is a hotchpotch landscape. There are 22 economic crime-fighting agencies scattered across the whole landscape. They do not join up or talk to each other. They have different remits and different legislation to use to effect any kind of outcome.

A report of the kind that the noble Lord suggests would bring real clarity to this. It would explain to people what is going on. It would not cost very much; indeed, as usual, it would save money because there is, I am sure, a great deal of duplication going on in the system. I urge my noble friend the Minister not to respond today, because it is so hard to respond on the hoof to these sorts of things, but to take this away and write to us to explain what is against the logic of a single reporting point once a year for all the agencies involved in economic crime.

[Lord Browne of Ladyton (Lab)]

My Lords, I am pleased to follow the noble Lord, Lord Agnew, in this part of our debates on the Bill because I recently corresponded with him about many of these issues. It was prompted by the publication on 30 March 2023 of the National Audit Office’s report, Tackling Fraud and Corruption Against Government. He helpfully drew my attention to some aspects of that and persuaded me that there is an opportunity in this Bill to take advantage of a degree of cross-party co-operation and leadership in an area of public policy, the like of which I have never seen in 25 years in the other place and your Lordships’ House.

The degree of informed cross-party leadership in the House of Commons is unique, in my experience. I do not think that I have ever seen so many well-informed people who have spent years working in this area leading together, in an utterly non-partisan way, the revision and improvement of a piece of legislation. It has been an utter pleasure to be able to contribute a small amount to your Lordships’ Committee and to listen to genuine experts in this Committee talking both about their experience and how it can be brought to bear to improve the Bill. I have no doubt that the Minister welcomes the fact that there is such support for the Government’s ambition.

However, my sense is that the government machinery resists being helped too much in relation to this legislation. I was an enthusiastic amateur in relation to the first part of the Bill because I have no expertise in the workings of the Companies Act. There were a number of people in the Committee who were able to inform me about how the process worked. The whole point of those debates on Companies House was to change culture; the whole point of this legislation seems to me to be to change culture in all aspects and areas that it touches in relation to economic crime. The culture that we want is one of transparency and accountability, which is why it is called the Economic Crime and Corporate Transparency Bill. It seems utterly ridiculous that the visa report is in the hands of the Home Secretary, who now has responsibility for a large part of the Government’s policy given the changes in government structure that took place not so long ago. She is holding on to an important report—a review of how we got into the position where this well-intentioned visa process became a machinery of deep corruption in our society at high levels because the money for corrupt purposes was moving quite significantly up the ladder of those who make decisions into the policy world.

What justification can there be, when the Home Office substantially has responsibility for a large part of this Economic Crime and Corporate Transparency Bill, which is designed fundamentally to change our approach, for one of the principal Ministers in charge of this area of law to be sitting on this report without explanation? There is no explanation. We are entitled to conclude that there must be something that she does not want the light of transparency to reveal. The noble Lord, Lord Fox, has already suggested what that could be—it probably is that.

18:00

I intend, between now and the publication of the Labour manifesto, to ensure that there is a commitment to publish this—if we come into government—in that manifesto and that we will have, whatever rules there may be in government, a manifesto justification at the election for publishing it. If I can have my way and persuade the leadership of my party, we will have it. It should be published now so that we see the worst of it and see exactly what damage economic crime and corruption can do to the structures of our society.

I will make my second point as quickly as possible; I do not like to take up too much time. I cannot understand how the Home Office managed to put together a proper fraud strategy, given the report published by the National Audit Office on 15 November last year, Progress Combatting Fraud. It revealed that the Home Office had an incomplete and out-of-date grasp of the cost of fraud and a poor understanding of who committed the crime; and that the Government were using data and prices from six years ago to establish their understanding and had no reliable estimate of the cost of fraud to business or how much was being spent on tackling the crime.

I was astonished, when the National Audit Office published that report, that the communications officer of the Home Office responded by saying that these issues would be dealt with in the fraud strategy. Fundamentally, the Home Office was not in a position to publish a fraud strategy if its data was six years old. If the Home Office has managed to get up-to-date data in all these areas in the few months since November, this fraud strategy will have some basic value. If it has not, what are we to make of a fraud strategy informed by data that is, at best, six years old, especially when even that was incomplete?

That is probably echoed in every other aspect of the many organisations that we rely on to combat this crime and behaviour. It is likely that they all have incomplete data. Despite improvements in the infrastructure of government, there is no proper co-ordinated view of how it can all work together both to prevent the continuation of the level of economic crime being perpetrated on our society and to improve our ability to make those who have been responsible for it, or will be responsible for it in future, properly accountable.

It is all very well saying—I suspect the Minister will say this because I have been in his position in the past and said these sorts of things—that these organisations are all accountable to Ministers and that the proper way to have accountability to Parliament is for the Minister, the appropriate Secretary of State or the Government to report to Parliament. But here is an opportunity to use Parliament in the same way as, we hope, the Climate Change Committee works for the Government in relation to climate change: to use Parliament with its enthusiasm, informed membership, cross-party leadership, non-partisan approach and desire to solve this problem once and for all by creating an infrastructure that prevents us ever being subject to this level of criminality again. The Government should take what is being offered by this current Parliament, including for future Governments: the opportunity to be the accountability mechanism and drive back into these various organisations what Parliament wants from them. It is what Parliament wants from them that will change the culture and the way in which these issues are approached in Companies House, or wherever else it needs to happen.

That is why I support these amendments that my noble friend Lord Coaker has tabled and ably explained. I hope that the Government will engage with these and other aspects of the Bill, with the strong, cross-party power that they have in Parliament, to make the Bill work as they want it to and protect our country from the £300 billion a year—I think—that we are losing to economic crime.

[Lord Leigh of Hurley (Con)]

My Lords, I rise briefly to urge the Minister to not allow the concept of a tier 1 investor visa scheme to be rubbished. This country has benefited enormously from foreign direct investment. I have seen a large number of UK small and medium-sized businesses benefiting from individuals coming to and living in the UK and putting money into and running the businesses, and those businesses flourishing thereafter. It is an important part of what we offer overseas investors, if done correctly.

I am a little disappointed that the noble Lord, Lord Fox, seemed to imply—and probably stated it; I may have missed it—that the reason that this information has not been published is that the Home Secretary is worried about disclosure of people who may have made donations to the Conservative Party. I do not think that is in the spirit of the debate; I do not think it is correct. The noble Lord laughs, but it is particularly surprising from the Lib Dems, which took money from Michael Brown, to make allegations like that, and it is a shame because I think there is great consensus in the Committee about the purpose and merits of the Bill.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords, who have made some extremely thought-provoking points in this debate. I will do my best to address them all.

Scrutinising the activity of government is obviously a key function of Parliament, and of course the Government are entirely supportive of it. I reassure the noble Lord, Lord Browne, that this particular part of the government machinery is always grateful for any help that is offered and will receive it in that spirit. However, the amendments in this group are unnecessary, as they are duplicative of existing reporting arrangements and scrutiny structures.

On investor visas, I take my noble friend Lord Leigh’s points. If done in the right way, they are potentially an important engine of economic growth—that should be acknowledged. Of course, we should not forget that they were introduced by a Labour Government and maintained during the coalition years. However, on Amendment 102, tabled by the noble Lord, Lord Wallace of Saltaire, and moved by the noble Lord, Lord Fox, I am aware that there are concerns about how the now-closed tier 1 investor route operated—in particular, that it was used by those relying on funds that had been illegitimately acquired and those who may have posed a wider risk to the UK’s national security.

It was because of those concerns that the Government committed in the first place to the review of the visas issued under the route between 2008 and 2015. As has been acknowledged, the Home Secretary made a Written Ministerial Statement on 12 January setting out the findings of that review. This included that the review had identified a minority of individuals connected to the tier 1 investor visa route who were potentially at high risk of having obtained wealth through corruption or other illicit financial activity or being engaged in serious and organised crime. The Statement of 12 January represents the Government’s substantive response to the commitment to undertake a review and publish its findings, including its findings in respect of economic crime.

Obviously, there was a delay; we are aware that considerable time elapsed between the commissioning of the review and the setting out of those findings. However, delay is regrettable but not unreasonable when issues of national security are at stake. Let me expand on that a little, if I may. It would have been preferable had the review been able to include more information about specific individuals but we have had to act sensibly and responsibly with regard to the UK’s national security; this includes striking the right balance between setting out the review’s broad findings and observing the constraints on disclosing sensitive details, which must be withheld, at the request of our operational partners, to protect our border and the vital work of our law enforcement agencies.

The noble Lord, Lord Fox, raised the subject of party-political donations. Without getting into a slanging match on this subject, I think it is worth restating that UK electoral law already sets out a stringent regime of spending and donation controls that prioritise transparency and safeguard the integrity of our elections. All political parties recognise that third-party campaigners and candidates must record their election spending and report it to either the Electoral Commission or their local returning officer. This information is all publicly available. The measures in the Elections Act 2022 also updated the political finance regulatory framework by increasing transparency and fairness and strengthening the controls against ineligible foreign spending on electoral campaigning. That is a fairly comprehensive transparency regime concerning the funding of political parties.

The House has considered similar amendments to other legislation, most recently during the passage of the National Security Bill. As before, the Government’s view is that this amendment is not necessary. The Government have set out the key findings of the review of the operation of this route and have acted to close it. I therefore ask the noble Lord, Lord Fox, to withdraw the amendment.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the Minister suggested that it was the inability to identify individuals that meant that some aspects of the report could not be released. I think that everyone understands the retraction of names where necessary, but surely that would not prevent the release of absolute figures rather than a summary of the figures.

[Lord Sharpe of Epsom (Con)]

As I said, it was also to do with the disclosure of sensitive details related to operational partners—the sorts of things that protect our border and the work of law enforcement agencies.

I thank the noble Lord, Lord Fox, for tabling Amendment 104, to which I will now speak. The impact of fraud and economic crime affects the whole of our society. The cost of fraud to the UK runs into the billions and is assessed by the National Crime Agency to be the most common crime type in England and Wales. We take this threat type seriously and have delivered a strengthened approach to reduce its impact. Obviously, as I referenced, the fraud strategy is one part of that; I will come back to it in a moment. The NCA currently leads the national response to serious and organised crime, including economic crime. As predicted, the NCA’s director-general is accountable to the Home Secretary and, through the Home Secretary, to Parliament.

The agency already publishes an annual plan and an annual report. The annual plan sets out how it intends to exercise its functions in co-ordinating the operational response to serious and organised crime, having regard to the Home Secretary’s strategic priorities and the director-general’s operational priorities. The annual report details its performance over the previous financial year, including efforts to tackle economic crime. The NCA also reports annually on the impact of suspicious activity reports in tackling economic crime and, as I set out earlier in response to Amendments 93 and 95 in the previous group, in respect of UWOs. Given this current reporting and the potential for duplication, the Government do not believe that this amendment is required at this time, so I ask the noble Lord, Lord Fox, not to press it.

I thank the noble Lord, Lord Coaker, for his Amendment 106B. Before I get into the amendment itself, let me say that I take the noble Lord’s points about the diversity of response to the sorts of crime that are being discussed. Of course, that partly reflects the diversity of the crimes being investigated, as he will be aware. The fact is that this is a fast-moving, rapidly evolving space; there is no doubt that the operational response to it reflects that particular set of circumstances.

18:15

However, the fraud strategy—I have a copy of it here—does make very strenuous inroads into addressing the various points that noble Lords have made. I refer to page 16 onwards, with regards to the various agencies and responses. Also, there was an all-Peers drop-in session earlier where we summarised the various pieces of legislation currently going through the House with a view to how they all fit together; I would be happy to forward that on to any noble Lords who might be interested.

To go back to the specific amendment, the creation of parliamentary committees is the responsibility of the House authorities, not the Government, so it would be unworkable for an amendment to make it a statutory requirement for the Secretary of State to set up such a committee. My noble friend Lord Agnew asked me to write on this subject, which I am happy to do.

I will come back to the comments from the noble Lord, Lord Faulks, about staffing and career strategy with regards to the SFO, but I hope I can reassure noble Lords that there is already a great deal of parliamentary scrutiny of the economic crime agenda. The Treasury, Justice and Foreign Affairs Select Committees have all recently published reports in this area. The Government look carefully at the work and publications of these committees and issue comprehensive responses to their reports.

The Government, regulators and law enforcement already regularly give evidence to parliamentary committees. This includes information at a higher classification to the Intelligence and Security Committee. Furthermore, as already mentioned, the National Crime Agency is required under the Crime and Courts Act to publish an annual report and lay it before Parliament, further adding to the available scrutiny of operational bodies.

There is a well-established government structure that oversees the response to economic crime across the system, thereby ensuring effective oversight of both enforcement and supervision agencies. This is co-ordinated by regular departmental and private public forums, most notably through the Economic Crime Strategic Board, which is co-chaired by the Chancellor and the Home Secretary. So, I hope that the noble Lord, Lord Coaker is reassured—

[Lord Coaker (Lab)]

Does that committee do an annual report? How often does it meet?

[Lord Sharpe of Epsom (Con)]

I do not know. I will find out and write to the noble Lord. For now, I hope he will accept that it is not the role of the Government to set up parliamentary committees and so will not seek to press his amendment.

I turn now to Amendment 106EB concerning the Serious Fraud Office. Once again, I thank the noble Lord, Lord Coaker, for tabling this amendment, which would require the Government to lay in Parliament an annual report on the Serious Fraud Office. The effectiveness of the agencies tasked with fighting economic crime, including the SFO, is of critical importance and of interest to both Houses. That is why the SFO annual report and accounts—these set out much of the information in which the noble Lord is interested—are routinely laid in Parliament.

The law officers of England and Wales superintend the SFO. They oversee the performance of the SFO, including steps that they can take to improve that performance. Through the superintendence process, the law officers identified the need to expand the SFO’s pre-investigation powers, a change that appears in Clause 185 of this Bill. The law officers take steps to ensure transparency, including participating in Attorney-General’s Questions in the other place; publishing summaries of minutes from SFO ministerial strategic boards online; and addressing issues promptly through Written Ministerial Statements.

This is complemented by the work of HM Crown Prosecution Service Inspectorate, which inspects the SFO and publishes its findings alongside a set of recommendations. HMCPSI recently published an inspection of the SFO’s case progression—that is, the organisation’s ability to deliver its cases efficiently and effectively. Given our previous discussions, the tone of the debate and the views expressed, I understand that the intention of this amendment is to probe the Government on the resourcing of the SFO.

The noble Lord, Lord Faulks, made a very interesting point; he may have noticed that I wrote my note on the wrong page when I referred to it earlier. I am coming back to it now; it is an interesting idea and I will definitely take it back. There is a process in place to recruit a new director-general of the SFO. I would imagine that acute matters, human resources and future resources are a part of the remit for that person but the noble Lord certainly makes an interesting point. To go back to a conversation during a debate that the Lord, Lord Browne, and I had last week, my personal point of view is that it is about time we all sat down and started to think about recruitment in law enforcement more generally.

[Lord Agnew of Oulton (Con)]

Given that my noble friend the Minister is going to take the comments made by the noble Lord, Lord Faulks, on recruitment back, I encourage him to look at the report by Andrew Cayley KC, Chief Inspector of the Crown Prosecution Service, who has also done a report recently. Some of the problems in the SFO are case workers not being paid enough, churn and so on, which led to the collapse of the case against G4S. There is big piece of work there that we could be doing stuff with.

[Lord Coaker (Lab)]

What is the Government’s view on whether the SFO is working?

[Lord Sharpe of Epsom (Con)]

Those are good questions; I will come on to them.

Funding and resourcing is a subject that is covered in the fraud strategy. I will not go over the details. At the most recent spending review, the SFO received an uplift to its core budget that is supporting its operations. In addition, the SFO continues to have access to reserve funding to fund specific high-cost cases if needed. This enables the SFO to obtain additional funding for any case that exceeds 4% of the core vote funding for the year.

My noble friend Lord Agnew and the noble Lord, Lord Coaker, referred to the G4S case. Obviously, it is always disappointing when a case has to be brought to an end before it is concluded but, like other agencies, the SFO is right to end an investigation or prosecution when it is no longer in the public interest. The SFO has acknowledged that there were disclosure challenges in the case that was closed earlier this year, R v Morris, Preston and Jardine. The SFO has made good progress on implementing the disclosure changes recommended by Sir David Calvert-Smith and Brian Altman KC in their independent reviews, published last year. The Crown Prosecution Service Inspectorate, the agency that inspects the SFO, has been asked to expedite a planned review of SFO disclosure, which will provide further independent assurance of the SFO’s processes.

Further to that, in Economic Crime Plan 2, which was published on 30 March, the Government set out their intention to explore reforms to the disclosure system to ensure that it supports a fair criminal justice system because cases that are lost on procedural grounds are, as noble Lords have noted, a loss to victims, taxpayers and, of course, society.

The noble Lord, Lord Coaker, just asked me whether the Government have faith in the Serious Fraud Office. The answer is yes.

[Lord Coaker (Lab)]

Is it working?

[Lord Sharpe of Epsom (Con)]

I would say that it is the same thing; perhaps we can debate that as well.

The Serious Fraud Office investigates and prosecutes the most complex cases of fraud, bribery and corruption. That is a very challenging remit. It has delivered some outstanding outcomes. For example, last year, it secured the conviction of Glencore for bribery and corruption in five countries, with the company ordered to pay £280 million—the highest ever ordered in a corporate criminal conviction in the UK—as well as eight convictions for five cases of fraud and bribery worth more than £500 million. It consistently recovers some of the largest amounts of proceeds of crime, despite being a fraction of the size of many other national agencies.

It is also important to note the SFO’s role in fighting economic crime globally. In the last financial year, the SFO took steps to assist overseas jurisdictions in their investigations by working on more than 60 incoming money-laundering requests. I think that the statistics answer the question—yes, we have faith, and yes, it is working. I hope that my explanations have provided some reassurance. I therefore ask the noble Lord not to press his amendment.

I turn to the final amendment in this group, Amendment 106EA, again tabled by the noble Lord, Lord Coaker. I come to this amendment last as it seeks to bring into one amendment much of what the other amendments in this group also attempt. I will not repeat myself too much here, especially considering how long I have gone on so far. The amendment would require the Government to issue a report on the performance of agencies and departments in tackling economic crime. However, I can assure noble Lords that this is already being done. As I have mentioned, the Government, regulators and law enforcement already regularly give evidence to parliamentary committees. The National Crime Agency is required under the Crime and Courts Act to publish an annual report and lay it before Parliament, further adding to the available scrutiny of operational bodies. The Government already conduct a range of threat and risk assessments to develop our understanding of economic crime. The NCA’s national strategic assessment assesses the economic crime threats facing the UK on an annual basis. As required under the money-laundering regulations, the UK also conducts periodic national risk assessments of money laundering and terrorist financing, which provide an overview of the risks and likelihood of an activity occurring. We have already discussed in detail the establishment of a fund to tackle economic crime so I will not repeat that debate again.

Regarding the amendment’s calls for a strategy on tackling economic crime, this March, the Government published Economic Crime Plan 2. Through 43 actions, it sets out how the public and private sectors will work together to transform the UK’s response to economic crime. Obviously, the fraud strategy is a part of that overarching economic crime strategy.

As regards the quality of the data in the fraud strategy, which was referenced by the noble Lord, Lord Browne, I have just had a quick flick through and it is more recent than six years. I should also reassure the noble Lord that one of the commitments in the fraud strategy is to improve the quality and collection of data, so this can be regarded as a baseline.

There are numerous ways in which the Government report on their performance with regard to tackling economic crime. This amendment is duplicative of them and therefore unnecessary. I ask the noble Lord to withdraw his amendment.

[Lord Fox (LD)]

My Lords, we are indebted to the noble Lord, Lord Coaker, for his amendments because they have inspired an interesting debate. The Minister has made a spirited defence of the Government’s position on this issue, but the very fact that these questions are being asked—and by a lot of people, not just the people in this Room—indicates that there is a lot of work for the Government to do in order to placate, explain or perhaps improve what is going on out there. The key element, which was highlighted earlier, is the alphabet soup of different agencies all interlinking in what is going on. The Minister has made a big effort in trying to calm nerves but I do not think that those nerves are calmed. Although the amendments will undoubtedly be not be moved, there is work to do; hopefully, the Minister has got that message from the nature of this debate.

I refer back to Amendment 102. Clearly, it ruffled some feathers. I note that in 2022 it was the Conservative Government who saw fit to withdraw this scheme because they felt that there were serious issues. We know that of the 6,000 such issues, a minority were problematic, but we still do not know exactly how many. I want to address the point made by the noble Lord, Lord Leigh that there is some use to encourage inward investment. This scheme clearly went off the rails, but by publishing the report properly, we would know how to encourage it without causing the issues that the Government clearly felt were sufficient to close the scheme. I am comfortable that I was not overstating the problem. The problem was there and the Government identified it, but now we have an issue in that we do not know the full scope of the problem.

In his response on party finance, the Minister referred to national security. The fact that there are issues is well covered. The Minister should know—I am sure that he does—that amendments to the National Security Bill that sought to enhance the scrutiny of the source of political donations have been thrown out by the Commons, so some of the things that the Minister said are not strictly there. There is still an issue between this House and the Commons when it comes to the National Security Bill and party funding, and it remains ongoing. I think that was the issue that my noble friend was anxious to state.

On the subject of the report and the reference to party funding, I remind noble Lords that I said that it makes it difficult not to conclude that there are embarrassing issues to hide because the report was not published. If there is no problem, as I am sure noble Lords believe, there is no reason not to publish the report. It is the non-publishing of the report that causes suspicion. That is the point that I was trying to make.

With that, I beg leave to withdraw Amendment 102.

Amendment 102 withdrawn.

18:30

Amendment 103

Moved by

[Lord Oates]

103: After Clause 187, insert the following new Clause—
“International Anti-Corruption Court
(1) Within six months of the passing of this Act, the Secretary of State must seek to begin negotiations with international partners to establish an International Anti-Corruption Court (IACC).(2) It is to be the objective of the Secretary of State in the negotiations to secure that the IACC has the following purposes—(a) to hear cases of international economic corruption, and(b) to sentence persons to appropriate punishment for international economic corruption.(3) The Secretary of State must lay a report before each House of Parliament within a year of the passing of this Act on the progress of the negotiations.(4) In this section “international economic corruption” means offences which if committed in the United Kingdom would constitute an offence mentioned in paragraph 15 of Schedule 9.”

[Lord Oates (LD)]

My Lords, on behalf of the noble Lord, Lord Hain, who cannot be in the Committee today, I rise to move Amendment 103 in his name, my name and those of the noble Baronesses, Lady Wheatcroft and Lady Altmann. In doing so, I pay tribute to his tireless efforts in exposing corruption, particularly the key role he played in bringing the kleptocracy of former South African president Jacob Zuma to the world’s attention.

This amendment would require the UK Government to begin negotiations for the establishment of an international anti-corruption court, or IACC, within six months of the passing of this Bill. International corruption is estimated to cost $2 trillion, or 5% of global GDP, every year. In a 2021 report, the UN High-level Panel on International Financial Accountability, Transparency and Integrity calculated that as much as 2.7% of global GDP is laundered by criminals through illicit global financial flows. While these opaque transactions occur in all countries, they have a much heavier impact on low and middle-income countries. The Washington-based organisation Global Financial Integrity found in its most recent report that from 2004 to 2013 developing and emerging economies lost $7.8 trillion in illicit financial flows—around 10 times more than the entire sum of foreign aid, including aid from the UK, that they received over the same period. Illicit outflows are increasing rapidly at an average rate of 6.5% per year, nearly twice as fast as global GDP.

A substantial proportion of that corruption comprises theft by a nation’s leaders of state funds for their own use—in other words, kleptocracy. Putting an end to that kleptocracy and recovering assets stolen by corrupt leaders would enable millions of the poorest in our world to be adequately housed, clothed and fed by helping prevent national treasuries being looted to line the pockets of corrupt politicians and their business cronies.

That so many kleptocrats succeed is not because of a lack of domestic laws; there are 189 parties to the UN Convention against Corruption. Most of them have complied with their obligations under the convention to have appropriate domestic anti-corruption legislation, but to facilitate their criminal activities kleptocrats have gutted their domestic criminal justice systems and taken control of the prosecuting authorities, police and, frequently, courts. There is no better current illustration than President Putin, who with his oligarch accomplices has looted the country.

Another prime example, whom I have mentioned already, is former South African President Jacob Zuma, who with his business cronies the Gupta brothers looted on an industrial scale and deliberately disabled police and prosecutors, so much so that the country was estimated to have lost fully one-fifth of its GDP during his infamous state-captured decade. Across the border in Zimbabwe, the ZANU-PF regime is mired in corruption, which has robbed the Zimbabwean people of what should be a bright economic future. Instead of serving the people, regime leaders, aided by corrupt businesspeople and a prosecutorial and judicial system entirely captured by the ruling party, loot the country at will. Just last week, opposition politician Jacob Ngarivhume was sentenced to four years’ imprisonment simply for calling for peaceful protests against corruption in July 2020.

Few of these kleptocrats keep their ill-gotten gains at home. Billions of dollars of stolen assets are laundered in a number of countries, including China, Hong Kong, Dubai, Singapore, Monaco, Switzerland, some states of the United States, UK overseas territories and, shamefully, London. Recently, the Al Jazeera documentary “Gold Mafia” secretly filmed Zimbabwe officials and business contacts conspiring to launder illicit funds. Those filmed included at least three British citizens—Uebert Angel, Rikki Doolan and Kamlesh Pattni—who made clear on camera their willingness to act corruptly. I know that the Minister cannot comment on those individual cases, but I hope that the National Crime Agency is investigating the activities of these individuals and others named in the documentary and the sources of their wealth, and that the authorities will not hesitate to freeze their funds while these investigations are being pursued.

However, while British authorities can act on crimes committed under UK jurisdiction, there is no international mechanism to prosecute kleptocrats and to seize and return their illicit funds. This gaping vacuum can be filled only by establishing an international anti-corruption court that can hold corrupt leaders and their co-conspirators accountable.

If some of the countries where laundered funds are held would join such a court, the stolen assets could be frozen and then, through orders of restitution, be repatriated to the countries from which they were stolen. If the risk of those funds being misused if returned to a corrupted state are too high, they could be repurposed and repatriated only at a time when they would reach the real victims: the millions in need in those countries.

The envisioned court would have jurisdiction over crimes committed by nationals of an IACC member state and crimes committed on the territory of an IACC member state. It would enforce existing national anti-corruption legislation and would be a complementary new international counterpart to these laws against kleptocrats and their collaborators.

The IACC would be a court of last instance, meaning that it would acquire jurisdiction only in cases in which the appropriate domestic authorities are unable or unwilling to investigate or prosecute the corruption. For the IACC to succeed, it would not be necessary for the countries governed by kleptocrats to join the court—it goes without saying that they would not. The IACC could be established by treaty and quickly become effective if it consisted initially of even a relatively small number of representative states, so long as they included some financial centres and other attractive destinations where kleptocrats frequently launder, hide and spend their stolen assets.

In this way, the IACC would have the potential to prosecute, punish and recover illicit assets from kleptocrats who rule or are very powerful in the countries that might not initially join the court. Most importantly, the threat of criminal prosecution at the IACC would deter other potential crimes of grand corruption by leaders who may otherwise be tempted to emulate the example of the kleptocrats.

The cost of the IACC would constitute a small fraction of the amount of illicit assets that it could seize and return to their originally intended purpose for the public good. In addition to orders of restitution, it could levy funds on those found guilty, which could be used to defray some of the cost of its prosecutions and proceedings.

If the court demonstrates during its early years that it can work effectively and efficiently, many other countries are likely to join it. In the aftermath of kleptocratic government, some developing countries may not have the human and financial resources to fight kleptocracy, so could approach the IACC to come to their assistance. A senior United States federal judge, Mark Wolf, is leading a campaign to establish such a court. Together with others, including the renowned South African jurist Richard Goldstone, he launched a civil society called Integrity Initiatives International. Its main project is to establish the IACC, and it has convened a number of the world’s top international lawyers to begin drafting a treaty for the court. None of its supporters see the court as a panacea that will end the kleptocracy any more than the International Criminal Court has ended illegal or genocidal activity by political leaders. However, it would be one of many tools, domestic and international, that are absolutely essential to combat and, I hope, ultimately defeat kleptocracy.

Almost 300 leading figures from across the world, including 45 former presidents and Prime Ministers and 32 Nobel laureates, have signed a declaration calling for the creation of the IACC. Three Governments—the Netherlands, Canada and Ecuador—have made the establishment of the court an element in their official foreign policy. In January this year, Nigeria became the fourth country to publicly state its commitment to working with other states towards the establishment of the court. Recently, the President of Moldova, Maia Sandu, also committed to joining the emerging coalition of states for the IACC. Additional countries from each region of the world have also expressed their interest in the idea.

The United Kingdom and our legal profession have always led in establishing and participating in international courts of last resort. This started with the ground-breaking Nuremberg trials and went on to include the International Court of Justice and, of course, the International Criminal Court.

The Government’s Integrated Review Refresh, published earlier this year, committed the UK to championing global efforts to ensure that revenues and assets lost to illicit finance are identified and recovered so that low and middle-income countries can self-finance their own development. This commitment was reiterated by the Minister for Development and Africa in his Chatham House speech on 27 April when he said that

“we will bear down on money-laundering and the flows of dirty money which deprive countries of their legitimate tax receipts and represent money stolen particularly from Africa and African people”.

We must live up to these commitments. I therefore urge the Government to accept our amendment and ensure that the UK becomes one of the early and leading supporters of the establishment of the IACC, lending the UK’s weight and expertise to finding the fastest route to the creation of the court and the most effective framework for its operation.

I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise with great pleasure to follow the noble Lord, Lord Oates, who made a powerful, persuasive and rich speech. I echo him in paying to the noble Lord, Lord Hain, for all the work he has done in this area.

The noble Lord, Lord Oates, rightly acknowledged that the international anti-corruption court, which I absolutely back—backing for it is clearly growing by the day—is one of many tools that we need to tackle economic crime. My Amendment 106A seeks to put another tool in the toolkit. At the moment, it is perhaps in a prototype stage and is earlier in development than the international anti-corruption court, but it is growing fast and has significant international backing.

I am proposing that the Government should provide leadership in supporting UN General Assembly Resolution 77/244, which was passed on 30 December last year with leadership from Nigeria and the Africa group. It calls on the Secretary-General to prepare a report on how

“to strengthen the inclusiveness and effectiveness of international tax co-operation”.

This has been seen as a step towards a UN convention on the issue and the establishment of international bodies to enforce it. I hope that some noble Lords who are taking part in this debate or who read Hansard later will be interested in joining me in pushing this forward as an issue on which Britain can and should be a leader. Due to the limited scope of the Bill, I have had to cut down somewhat what the General Assembly resolution says, but there are still steps that we can take forward here; I will be very interested to hear the Government’s response to this UN General Assembly resolution.

Following on from what the noble Lord, Lord Oates, said, it is clear that chasing economic crime money, particularly tax evasion, is what is known in the jargon as a wicked problem. The aims of the evaders are simple; their reach is global and the ability to act is measured in seconds. Money can be shifted in less than a click of my fingers. However, national states have very complex goals in development, rights and the rule of law, and their powers are individually restricted within their own borders. Their legal framework is limited in resources, as we discussed in our debate on the previous group, and frequently takes a lot of time to move into action.

It is worth looking at what Attiya Waris, the UN independent expert on the effects of foreign debt, told the UN General Assembly last year:

“The shortcomings of the international and national tax systems require international cooperation and assistance. They cannot be addressed unilaterally”.


The idea of a UN convention got virtually no coverage or attention in the UK but, internationally, there is a great deal of work going on. That was reflected in a letter sent in March to the UN Secretary-General by scores of civil society organisations—including some that will be familiar to noble Lords, such as Action Aid, the Tax Justice Network and World Economy, Ecology and Development.

18:45

That letter put it bluntly, saying:

“Decision-making on global tax rules has been left to non-inclusive forums wherein especially developing countries have not been able to participate on an equal footing. This injustice is at the heart of the failure of the international tax system, which has continued to be characterised by inefficiency, incoherence, and beggar-thy-neighbour policies, which contribute to the alarming growth of global inequality.”

I wanted to put down a broader amendment that addressed all aspects of the UN resolution because I think that what is not illegal tax-dodging is utterly indefensible, taking money from the mouths of hungry children and taking medicines from health systems that are desperately striving to care for their people—but I have gone as far as I can within the limits of this Bill.

A great deal of work has already been done on this. The proposal for a UN convention on tax was published in March 2022 by the Global Alliance for Tax Justice and the European Network on Debt and Development. That draws on examples. There are pre-existing parallels in government structures, approaches and principles from the Rio conventions, international human rights instruments and the WHO framework convention on tobacco control.

It is worth setting out the background to this. It has been said, “Let’s leave this to the OECD”, and the OECD has said, “We’re the organisation that should do this”. Over decades, under its framework, it has had an international tax regime, the main purpose of which was to prevent double taxation. That is what the focus has been—not collecting tax but preventing so-called “over-collection”. It also excludes the majority of the world from its deliberations.

We often hear talk of global Britain and wanting to be world-leading. Here is a real opportunity, as Professor Lorraine Eden from the University of Texas A&M puts it:

“Large changes in international regimes usually require a tipping point and the co-operation of a like-minded club of nation states to lead the change”.

My amendment suggests that Britain should put itself at the forefront of that club of nations. We have the City of London, and a great many lawyers, bankers and other people who, pointed in the right direction, could be very useful to that effort. Competing in a world of laxer and laxer tax regimes has been a disaster for people and planet, an invitation to crime and corruption. Co-operation has to be the way forward to equip the world with the funds to tackle the looming poly-crisis of environmental destruction, human desperation and rampant inequality.

[Baroness Wheatcroft (CB)]

My Lords, I shall speak to Amendment 103. Thanks to the comprehensive introduction from the noble Lord, Lord Oates, I can be relatively brief.

The International Criminal Court in the Hague was established in 2003. Later this month, it will take evidence from representatives of some of the victims of war crimes in Darfur. That is typical of the essential work that the International Criminal Court can do. It is no wonder that there are now calls for Putin to be indicted to this court. Few today would question the need for such an organisation, and now it seems clear that there is a need for an international anti-corruption court.

The noble Lord, Lord Oates, made the case very positively. Kleptocrats are financial war criminals, inflicting huge damage on their countries but, like the dictators who commit genocide and other war crimes, they have impunity to act as they wish in their home countries. They control the police, the prosecutors and the courts. The damage that their greed inflicts on their countries is huge, but those countries are rarely able to bring them to justice. That is why this new court is so essential.

The Panama papers and Pandora papers provided appalling glimpses into the scale of the corruption in which senior officials in many jurisdictions have been involved. The proceeds are scattered around the world. The international anti-corruption court would provide a mechanism for prosecuting those individuals and retrieving those funds.

The United Nations has demonstrated its ineffectiveness in this area. The General Assembly adopted the UN Convention against Corruption in 2003. Getting on for 200 countries have signed it but, sadly, those signatories include most of the worst offenders on Transparency International’s corruption index. Too many countries treat the convention with contempt because their leaders and senior officials preside over corruption-rife regimes. That is why we need this court, and why I put my name to this amendment. It could be set up relatively quickly and could be hugely effective. Its very existence would deter corruption. If the Government want to fight corruption, why would they not support this project?

[Lord Faulks (Non-Afl)]

My Lords, of course, I echo the concern that has been expressed in the speeches so far about international corruption on an enormous scale.

In our debates, we have very much focused on what happens here in the United Kingdom. In our attack on the Government, it is worth bearing in mind that, in 2016, this Government hosted an international corruption summit; it was hosted by the then Prime Minister David Cameron, so many Prime Ministers ago. It was partly as a result of that that we had the then Criminal Finances Bill and there was an impetus—a very slow one, sadly—to set up a register of overseas entities. It was felt that, at least in this country, we should do all we could not to allow our properties and companies to be infected by corruption. Indeed, this Bill seeks to improve what has already been achieved although, in many ways, it has not gone far enough.

I respectfully submit that what is contained in this amendment is pretty aspirational stuff. There is nothing wrong with being aspirational. The International Criminal Court—I have been to conferences there—has had some success, but it must be remembered that Russia is not a party to the ICC and nor is the United States. It is one thing to say that it is relatively easy to set up a court, but you must have the proper means to enforce it and you have to invest huge sums of money in infrastructure. There has to be a degree of realism about this. Surely we should sort out matters at home as best we can first of all; that in itself will contribute to reducing international corruption. Putting on the statute book an obligation to set up an international court of this sort, which is what this amendment suggests, is premature at this stage, although one can do nothing but applaud the sentiments that lie behind it.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a very interesting debate; it is the first debate in which we have spoken on a more international level. As we heard in our earlier debates, a large proportion of the quantity of money involved in fraud—well over 90%; probably 99%—has an international element; that is at the core of so much of the fraud with which we are dealing.

I congratulate the noble Lord, Lord Oates, on the way in which he introduced this group. I found his introduction rich and compelling. He set out things very fully. The other noble Lords who have spoken have talked about the aspirational nature of this amendment. I do not think that that is a criticism. It is good to hear about the other countries that are already taking a lead in trying to get the IACC set up.

From the Labour Party’s point of view, I have looked at what David Lammy has said on this matter. He has spoken about working internationally—I know that my noble friend Lord Hain led the work on that when he was a Foreign Office Minister—and promised that an incoming Labour Government would fight against dirty money in the UK by creating a transatlantic anti-corruption council alongside the US, EU and other allies. That is a different model from the one proposed in these amendments.

I do not want to stand here as an opposition spokesman saying that we are against what the noble Lord, Lord Oates, and the noble Baroness, Lady Bennett, are proposing but there are other potential models for bearing down on corruption. I listened with some interest to what the noble Lord, Lord Faulks, said about the practicalities of doing this and using legislation such as this to do everything we can on a domestic level, and internationally where we already have direct interest, to bear down on this huge level of corruption. Nevertheless, I thank the noble Lord for introducing this amendment.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Lord, Lord Hain, and the noble Baroness, Lady Bennett, for their amendments in this group. I also thank all noble Lords for speaking in this debate.

I turn first to Amendment 103, which was tabled by the noble Lord, Lord Hain, but spoken to by the noble Lord, Lord Oates. If I may, I associate myself with the remarks of the noble Lord, Lord Ponsonby: the noble Lord, Lord Oates, made an incredibly powerful and eloquent case in moving this amendment 103, which also spoken to by the noble Baronesses, Lady Bennett and Lady Wheatcroft. Ensuring that those who are responsible for the most egregious acts of corruption are held to account is obviously vital. There should be no tolerance towards those who steal from the public to satisfy personal greed. The Government wholeheartedly endorse the premise that this amendment seeks to advance. The international community can and must do more to deter and punish acts of corruption.

The Government are taking robust action to ensure that the UK leads by example. That is why, in March, we published the second public-private economic crime plan, to which I referred in our debate on the previous group of amendments, which outlines ambitious actions to prevent the UK’s open economy being exploited by criminals and corrupt actors. The Government are also developing a new UK anti-corruption strategy to build on the progress made by the previous strategy and outline a refreshed approach to tackling corruption and illicit finance both in the UK and internationally.

The recently published fraud strategy also sets out the Government’s commitment to raise the priority of fraud on the international stage. We will drive forward global action through developing stronger relationships with international partners, culminating in a global fraud summit chaired by the Home Secretary and held in the UK next year. The summit will bring together leaders from Governments, law enforcement and the private sector to announce the ambition to deliver a comprehensive and co-ordinated approach to tackling fraud over the next five years.

The Government have consistently invested in efforts to bring those responsible for corruption to justice. The international corruption unit in the National Crime Agency is a specialist capability that investigates corruption cases with UK links.

[Baroness Bennett of Manor Castle (GP)]

On the summit, the problem with ideas such as that put forward by the noble Lord, Lord Ponsonby, about a transatlantic council or similar, is that it would be focused on global north countries. Can the Minister assure me that there will be full representation of global south countries at the summit he just outlined and that the UK will provide resources to ensure that some of the least developed countries, which are some of the biggest victims of this, are also able to participate in that summit?

[Lord Sharpe of Epsom (Con)]

I cannot provide that reassurance; I do not know who will be involved, but I will endeavour to find out and will write.

I shall return to where I was in my speech. In addition, the UK leads and hosts the International Anti-Corruption Coordination Centre—the IACCC—which brings together specialist law enforcement officers from multiple agencies around the world to tackle allegations of corruption. The IACCC has helped to secure convictions in high-profile money laundering cases, including in Malaysia and Angola. In 2022 alone, the IACCC identified more than £380 million of stolen and hidden assets.

I forgot to mention part of my previous paragraph. Since 2006, 30 people and companies have been convicted of corruption offences and more than £1.1 billion of stolen assets have been frozen, confiscated or returned to developing countries. That is in relation to the international corruption unit in the NCA.

19:00

Having said all that, there is no doubt that more needs to be done to combat corruption, but I am afraid that the Government are not currently able to endorse the creation of a new, bespoke institution in the form of an international anti-corruption court. The FCDO has been actively engaging in international discussions on this subject over the past year and will continue to do so. It is clear from these discussions that there is a lack of international support for an international anti-corruption court, and this is currently a significant barrier to its likelihood of success. Greater international consensus on the need and mandate of an international anti-corruption court is required before international negotiations on such a body can be considered.

It is also important to note that an international anti-corruption court would come with significant financial implications. As a comparison, the operating cost of the International Criminal Court for 2022 was approximately €160 million. Before establishing an international anti-corruption court, we would need to be confident that its impact would justify such a cost.

While the Government are not able to support this amendment, the noble Lord should be commended for raising this important issue. The Government remain committed to holding the perpetrators of corruption to account. Ownership of international treaties and jurisprudence sits with the FCDO, and I know that my ministerial colleagues there have noted the interest in this amendment and would welcome further exchanges with the noble Lord to consider the options available to accelerate international action.

[Lord Browne of Ladyton (Lab)]

I am conscious that I did not contribute to the debate on this, but is it too late to get the word “anti-corruption” into the communique for the pending G7, which takes place between 17 and 23 May in Hiroshima? That word is nowhere in the Foreign Ministers’ communique on 19 April after they met, I think, in Japan. The communique covers almost everything in which one can imagine we would be interested in involving those countries that share our values, but that is not there.

[Lord Sharpe of Epsom (Con)]

The noble Lord will not be surprised to know that I do not know, but I will ask.

The Government will endeavour to update your Lordships’ House on their plans for progressing international action on corruption in due course. I hope the noble Lord, Lord Hain, and the noble Lord, Lord Oates, on his behalf are reassured by the Government’s commitment to combatting corruption. We look forward to further discussions on this subject and to setting out our plans in further detail at an appropriate time. I therefore ask the noble Lord to withdraw his amendment.

Turning to Amendment 106A, tabled by the noble Baroness, Lady Bennett, the Government care deeply about tackling tax evasion and avoidance. My ministerial colleagues continue to work closely with the various sub-committees that sit within the UN’s Economic and Social Council. However, standard-setting powers on tax currently sit within the Organisation for Economic Co-operation and Development’s inclusive framework and global forum, and the UK believes that this is the mechanism best placed to deliver consensus-based reforms aimed at tax avoidance and evasion.

The inclusive framework and the global forum have wide and diverse memberships of more than 140 and 160 countries respectively. Furthermore, the OECD holds strong technical expertise in matters of international tax avoidance and evasion, and a potential UN convention on global tax evasion as envisaged by this amendment would duplicate and be likely to hinder the OECD’s work. This would delay the co-ordinated global response and effort to address tax evasion and avoidance and combat harmful tax practices, as well as creating divergence in international tax standards.

Having said that, the UK will engage constructively with the upcoming report by the UN Secretary-General. We want to find ways to improve international co-operation, as I have said, but to do that we want to ensure that this captures the full range of existing mechanisms for international tax co-operation and considers creatively how they could be improved better to meet developing countries’ needs. We have submitted evidence to the UN Secretary-General demonstrating these points.

Having said all that, obviously I ask the noble Baroness not to move her amendment.

[Lord Oates (LD)]

My Lords, I thank all noble Lords who have spoken in this debate; I particularly thank the noble Baronesses, Lady Wheatcroft and Lady Bennett, for their support. I am sympathetic to the amendment tabled by the noble Baroness, Lady Bennett. I am grateful to the Minister and the noble Lord, Lord Ponsonby, for their thoughtful responses. I am disappointed by the Minister’s conclusion, obviously, but I hope that, as he suggested, we can continue those discussions going forward.

I want to reassure the noble Lord, Lord Faulks, that my purpose was not to come as a critic of the Government. Indeed, I highlighted commitments made by the Government in the Integrated Review Refresh and I commend the Minister for Development and Africa on his real focus. He understands how important this is. Overseas development assistance is nothing compared to getting this right.

I am not sure that I share his views on the International Criminal Court and other international criminal tribunals. One of the great proponents of this international anti-corruption court is retired Justice Richard Goldstone. He was the chairman of the international criminal tribunal on the former Yugoslavia, which convicted a number of key figures including Ratko Mladić and Radovan Karadžić. It does have impact. We should be aware that, even for the non-signatories of the ICC, it has consequences. It has consequences for President Putin that he has been indicted, such as consequences on whether he can travel to BRIC countries that are signatories to that court.

On the charge of being aspirational, I plead entirely guilty. You cannot get real change in the world unless you are aspirational. Of course, as I said in my opening speech, this amendment is not a panacea; it is one tool. One of the most important things, as the noble Lord, Lord Faulks, said in his remarks, are the enforcement powers that we have in the UK, which, in my view, we are not using as much as we should be. I hope that, through this Bill and other means, we will do much more on enforcement.

As we have heard in the previous debate and amendments, this is really about the mechanisms to enforce lots of things; it is not about the laws. There are loads of laws on this stuff generally; it is about enforcement mechanisms. The international court would be another enforcement mechanism but, of course, we need enforcement mechanisms at home.

With that, I thank everybody who has taken part in the debate and I beg leave to withdraw the amendment.

Amendment 103 withdrawn.

Amendment 104 not moved.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

Lord Cromwell, are Amendments 105 and 106 not moved?

[Lord Cromwell (CB)]

My Lords, we had a vigorous debate on Amendments 105 and 106, which attracted a lot of cross-party support. I certainly intend to return on Report and look forward to working with the relevant Minister and other Members of this House to improve on them. We had a certain amount of talk about dogs earlier on this afternoon. I should advise the Committee that my wife tells me that I am a terrier in human form. So, in not moving my amendment, I say to the Minister, very gently and in a friendly way, the words of that old Roman mosaic: “Cave canem—beware of the dog”.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

After the human terrier, we continue.

Amendments 105 to 106B not moved.

Amendment 106C

Moved by

[Lord Agnew of Oulton]

106C: After Clause 187, insert the following new Clause—
“Civil recovery: costs of proceedings
After section 313 of the Proceeds of Crime Act 2002 insert—“313A Costs orders(1) This section applies to proceedings brought by an enforcement authority under Part 5 of the Proceeds of Crime Act 2002 where the property in respect of which the proceedings have been brought has been obtained through economic crime.(2) The court may not make an order that any costs of proceedings relating to a case to which this section applies (including appeal proceedings) are payable by an enforcement authority to a respondent or a specified responsible officer in respect of the involvement of the respondent or the officer in those proceedings, unless—(a) the authority acted unreasonably in making or opposing the application to which the proceedings relate, or in supporting or opposing the making of the order to which the proceedings relate, or(b) the authority acted dishonestly or improperly in the course of the proceedings.””Member’s explanatory statement
This amendment extends the costs cap for civil asset recovery cases beyond Unexplained Wealth Orders. It aims to create a consistent enforcement landscape that does not hinder law enforcement agencies' ability to recover the proceeds of crime. It retains safeguards on costs for improper action taken by prosecuting authorities.

[Lord Agnew of Oulton (Con)]

My Lords, this amendment would help to protect enforcement bodies from the serious risk of high adverse costs when undertaking recovery action against deep-pocketed suspects who can afford the very best legal representation. This risk creates a huge downward pressure on law enforcement activity. The Government introduced a new costs order in March last year for the use of unexplained wealth orders; we have talked about those a lot. It ensured that costs would not be awarded unless the law enforcement authority had acted unreasonably, dishonestly or improperly.

UWOs are just one tool for recovering assets in the UK’s recovery regime and, as we have discussed this evening, are arguably less important in the eyes of law enforcement than other recovery tools. Extending the costs orders introduced in the ECA 2022 would significantly increase the appetite for undertaking recovery cases and inevitably lead to more asset recovery. Even the Law Commission in a recent report recommended that in confiscation hearings following a criminal trial, if the prosecution is unsuccessful but can argue that their application was reasonable, each side bears its own costs. Given that this is a Law Commission recommendation for criminal confiscation and that limited liability for costs has been introduced for UWOs, we are proposing to extend this limited liability to all cases of civil criminal asset recovery.

Civil society and civil servants at the NCA and the SFO have all reported that adverse costs can play an important role in cutting agencies’ appetite to pursue costs. In fact, no cases seem to have been undertaken against Russians in the UK since the outbreak of the Ukrainian invasion. Evidence I have heard from law enforcement bodies suggests that there is a significant caseload of potentially high-risk cases in the pipeline which bring significant cost risks. This includes more than 60 cases being reviewed by one prosecution authority with close to £1 billion in assets frozen by an enforcement body.

Tackling kleptocrats and politically exposed persons will involve going against the very best and most expensive lawyers, unpicking complex corporate vehicles and reams of evidence. Cost exposure poses a real hurdle to the use of civil recovery. In addition, as we have heard so often during this series of Grand Committees, this is not a party-political issue. Indeed, it has been raised previously by Conservative MP Nigel Mills, who sought an amendment during the passage of the Criminal Finances Act 2017, which we heard about briefly from the noble Lord, Lord Faulks, so that the costs could be awarded on an indemnity basis.

In the six years or so that have elapsed since then, we have had the huge move in principle by the Government to allow this capping to take effect for UWOs. Given that that Rubicon has been crossed, I simply do not understand why the Government are reluctant to extend it. We hear so often in the rebuttal of our amendments that it is not the right time, there is no room in the legislative calendar, the cost is too great and the principles are not there, but this is a situation where none of those issues exists. The Government accept that the principle can apply in some forms of recovery. All I ask for in this amendment is that we broaden the scope of the cost capping, which will dramatically improve our ability to go after some of these bad actors. I beg to move.

[Lord Leigh of Hurley (Con)]

My Lords, I will speak to this amendment, which I have signed. Once again, I find myself agreeing with every word that my noble friend Lord Agnew has said, so I will be very brief.

The extension of a new cost regime to all of Part 5 of POCA in the case of economic crime would encourage law enforcement bodies to act ambitiously but also reasonably in bringing civil recovery cases, and it has the potential to ensure that significantly more stolen assets and proceeds of fraud and corruption can be recovered and returned to the victims—as we would all want—but also reinvested back into law enforcement agencies themselves, which is the major problem, through the asset recovery incentivisation scheme. That would help them enhance their capacities and give them the confidence to go after cases which they are not doing at the moment.

A number of us had the honour to be briefed by Bill Browder on the Bill. Of the many subjects that we discussed, this was the one amendment that he felt would be helpful and useful for us to pass. What greater man is there than Bill Browder to suggest to us that we adopt a particular route? If the man can create a Magnitsky Act which has been adopted by pretty much every civilised country in the world, perhaps we can just take one clause in this Bill to enhance our fight against economic crime.

19:15

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I, too, added my name to this amendment, which is supported by these Benches. This issue gets us back to David versus Goliath, which we have mentioned in previous groups. Unfortunately, the culprits are Goliath, and our prosecutors are left having to face culprits with far deeper pockets than theirs. There are alternatives, such as creating larger budgets for prosecutors, that have already been dismissed.

Maybe within asset recovery there is some glimmer of attracting a better recompense, but that is not a perverse incentive because if the prosecuting authorities took actions improperly and overreached themselves, the safeguarding clause in this amendment would come into operation. In the way the amendment is drafted, there are not perverse incentives but good incentives to bring more actions that are presently not brought simply because they are unaffordable. It makes us a bit of a laughing stock that we have very strong laws in parts but cannot enforce them.

Everything else has been said. I commend this amendment and await with interest to see what excuses the Government come up with not to accept it when the precedent and the need are there and the amendment contains a safeguard and therefore it could be put into operation very effectively and swiftly.

[Lord Trevethin and Oaksey (CB)]

My Lords, I will say a few brief words in support of this amendment and place it in its proper legal context. When it was mentioned at Second Reading, the Government’s response was simply to say that the principle that the loser pays the costs of unsuccessful litigation or an unsuccessful application was regarded as a valuable principle and that they did not see sufficient reason to move away from it in this field. It is a salutary principle and it operates in civil litigation for the most part, but there are exceptions. There are already statutory precedents for a regime of the type that this amendment seeks to create, namely a regime in which the enforcement agency will not invariably have to pay the costs if an application is unsuccessful.

I will say a few words about a different, but quite closely related, area of law in which a regime of the type that this amendment contemplates has been created by the judges. In the field of professional discipline and professional regulation, there has been for some time a well-established principle that the regulator will not automatically have to pay costs merely because the application or prosecution that it has commenced has proved to be unsuccessful. It is known as the Baxendale-Walker principle and works perfectly well in practice.

I shall explain shortly how it works in practice. The proceedings are initiated and the respondent, being a professional person, is expected to engage properly and conscientiously with the regulator and to respond candidly, or with a reasonable degree of candour, to the points being made against him or it. If the regulator then continues unreasonably with the prosecution or disciplinary action and fails, it will be made to pay the costs of the matter. However, if the regulator at all times acts reasonably, the presumption will be that it will not be made to pay the costs of the matter.

The reason why the law has created that regime is precisely the reason that is contemplated by this amendment—namely, that it is strongly in the public interest that regulators and enforcement agencies should not be deterred from bringing proper proceedings by the risk of paying exorbitant costs bills to respondents who manage to successfully resist the application in question.

I think I have said enough to convey the point. I really do not understand why the Government are so reluctant to consider introducing a regime of this sort more widely across the field of economic crime. It already exists in relation to certain types of economic crime, and it works well in the field that I have mentioned. I would be very interested to hear the Minister’s response.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I support this amendment. As the noble Lord, Lord Agnew, said when he introduced it, cost exposure for prosecuting authorities can pose a real hurdle to their pursuing those prosecutions. As he also said, the Rubicon has been crossed in allowing cost capping, which the Government did in March 2022. This amendment has real legs—if I can use that phrase—and I hope the noble Lord presses the matter further, perhaps at later stages of the Bill.

I too was at the briefing with Bill Browder. I am currently reading his second book, having read his first, and it is compelling reading. He is a very brave man. I also agree with the comments made by the noble Baroness, Lady Bowles. I think she said: the precedent and the need are there, and the solution is here. I agree with those sentiments.

Finally, I thank the noble Lord, Lord Trevethin and Oaksey, who set out, interestingly, that some judges in the civil courts have developed their own law on this matter regarding the enforcement agencies not necessarily having to bear all their costs. He gave an interesting example of a further precedent, if you like. I too will be interested to hear the Minister’s response to that. The matter will be considered very carefully with regard to the later stages of the Bill.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank my noble friend Lord Agnew for tabling this amendment and all noble Lords for the points they have raised in this debate. Again, I reassure the Committee that the Government take economic crime very seriously and are taking the necessary steps to ensure that enforcement agencies can tackle illicit financial activities while upholding the fundamental principles that govern our entire civil justice system.

In civil legal proceedings the loser generally pays the legal costs of the winning party, as has been acknowledged. The “loser pays” principle is a fundamental pillar on which the whole basis of civil litigation operates. It helps to ensure that only stronger cases are brought and that the winning party is able to recover reasonable costs of vindicating their case, save for in exceptional circumstances, to ensure access to justice for individuals with very limited resources. While important, civil recovery proceedings brought by enforcement agencies are not so exceptional as to warrant undermining the “loser pays” principle.

Several noble Lords have raised with me, and during this debate, the changes made to the unexplained wealth order regime by the Economic Crime (Transparency and Enforcement) Act 2022. These amended provisions in the Proceeds of Crime Act—POCA—introduce “costs protection” for enforcement agencies in cases of UWOs, unless they act unreasonably. This aimed to remove barriers to the use of UWO powers by relevant law enforcement teams. This was done on the basis that they were exceptional and likely to be low in volume in comparison to other types of civil recovery and, furthermore, that the relevant cost rules would be positioned as a novel and unique proposal, thereby maintaining the overall integrity of the “loser pays” principle in all other civil recovery proceedings. In the last five years, agencies with civil recovery powers—the Crown Prosecution Service, the National Crime Agency, the Serious Fraud Office, the Financial Conduct Authority and HM Revenue and Customs—have not paid any adverse costs for civil recovery proceedings.

There is also no guarantee that the introduction of further costs protection would lead to enforcement agencies pursuing more cases, as they report that each case must be assessed on its own merits considering numerous factors independent of costs liability, including gathering sufficient evidence to pursue a case and internal resourcing capability.

It is also worth bearing in mind that the Civil Procedure Rules, which guide the courts in procedural matters—I think this goes some way to answering the points raised by the noble Lord, Lord Oates—

[Baroness Bowles of Berkhamsted (LD)]

As I interpret what the Minister has said, if the regulator is taking the costs risk into account, that means it will take into account the question: am I up against a really wealthy opponent? Therefore, we will not have equal justice. You are saying that if the person from whom you are trying to recover the asset is particularly wealthy, they will be able to string out the process and do more appeals. That increases your costs risk and, therefore, the wealthy will not be pursued as much as the less wealthy. That is a very bad precedent and another reason why the amendment in the name of the noble Lord, Lord Agnew, is surely needed.

[Lord Sharpe of Epsom (Con)]

The noble Baroness makes an interesting point. I was talking about unexplained wealth orders in respect of the Economic Crime (Transparency and Enforcement) Act 2022. To go over that again, it aimed to remove barriers to the use of UWO powers by relevant law enforcement teams, but it was done on the basis that these were exceptional and likely to be very low in volume in comparison to other types of civil recovery. I do not think that is inconsistent with the argument about this amendment.

Going back to the procedural rules, which guide the courts in procedural matters, these enable judges to use their discretion to limit legal costs in certain circumstances. In appropriate cases, they may be used by agencies when pursuing asset recovery cases and are therefore a more suitable way of limiting costs liability in the few circumstances where this may be needed rather than through wholesale reform of the loser pays principle in civil recovery.

The amendment would overturn the very basis on which the entirety of civil costs and funding is built. It would negatively affect every other category of civil litigation, all for minimal, if any, financial savings in a very limited number of cases—

[Lord Agnew of Oulton (Con)]

Could my noble friend explain why this overturns precedence, while the Act last year on unexplained wealth orders does not? That is why I am so confused.

[Lord Sharpe of Epsom (Con)]

My Lords, I think I have already explained it, but I will endeavour to do so in greater detail in writing, if that is acceptable.

In a very limited number of cases, law enforcement would be involved. If parties in civil litigation do not fear having to pay adverse costs, it risks encouraging spurious and unmeritorious claims. On this basis—and I will write—I ask my noble friend to withdraw his amendment.

[Lord Agnew of Oulton (Con)]

I thank my noble friend the Minister for his explanation. I am afraid that I do not accept it, but I understand the convention that I need to withdraw my amendment. However, I will need to bring this back on Report; it is fundamental to our attempts to get a grip of economic crime in the system. I ask the Minister to reflect not only on my comments but those of other Peers who have supported the amendment and, indeed, the noble Lord, Lord Trevethin and Oaksey, who has come up with yet another example that I was not familiar with.

I was clear in my amendment that there is absolute protection against overreach by government agencies that are seen to act unscrupulously, so I do not accept that there is a risk. We know that we are not going to fund these agencies properly. Common sense tells us that they have to do a very careful risk analysis of any case they take on. If they think they have less than an 80% chance of winning it, they will not do it. I know that from my own experience as a Minister. Time and time again, early on in my career as the Academies Minister when I was trying to root out fraud there, I was told that the risks were too high and that we did not have the budget if we lost the case. It is not complicated.

I urge my noble friend the Minister to reconsider. My noble friend Lord Leigh was right—when we heard from Bill Browder a few weeks ago, he was adamant that, if there is one thing this Bill should do, it is to bring in this costs cap so that we can weaponise the agencies to go after economic crime. I beg leave to withdraw my amendment.

Amendment 106C withdrawn.

Committee adjourned at 7.30 pm.

House of Lords

Tuesday 9th May 2023 Lords Chamber

Tuesday 9 May 2023

14:30

Prayers—read by the Lord Bishop of St Albans.

Horticultural Peat

Tuesday 9th May 2023 Lords Chamber

Question

14:36

Asked by

[Baroness Jones of Whitchurch]

To ask His Majesty’s Government why they have delayed the complete ban on the sale of horticultural peat until 2030.

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, we have not delayed the complete ban on the sale of peat. Last August, we announced that we would ban the sale of peat for use in amateur gardening by 2024. We are clear that we are considering limited technical exemptions for professional growers where alternatives do not exist. Professional use will be banned from 2026, with exemptions from the ban for essential use until 2030. These measures will be brought forward when parliamentary time allows.

[Baroness Jones of Whitchurch (Lab)]

I thank the Minister for that reply, but a voluntary approach to ending peat use was agreed in the horticultural sector back in 2011. It has already had 12 years to find alternatives—what has gone wrong with all that? As he said, most retail growers are already marketing peat-free compost and are on target to meet the 2024 deadline, so why do the professional growers need an extended deadline when, as we know, peat is not a unique growing medium and peat-free alternatives already exist? In the meantime, as he will know, every year of peat extraction—which is continuing to happen on an industrial scale—causes millions of tonnes of CO₂ to be released into the atmosphere.

[Lord Benyon (Con)]

The noble Baroness is absolutely right, which is why we are bringing forward this mandatory ban. I am aware of the voluntary requirement from 2011 to find an alternative because I brought it in. We are now having to pass measures to see this happen. The Horticultural Trades Association and others are registering concerns about how they are going to get their members to use alternative means and maintain our food security. Environmentalists and those of us who want to see an early ban are very keen for that to happen as quickly as possible. The fact that both sides are unhappy means that we might be getting this just about right.

[Baroness Humphreys (LD)]

My Lords, while it is important to introduce a ban on peat as quickly as possible, with EU imports continuing but not to the same standards as those applied to UK growers, what are the Government doing to ensure a level playing field to enable the UK industry to remain competitive?

[Lord Benyon (Con)]

The noble Baroness asks a very important question. We could act unilaterally, which would result in the export of jobs, skills and benefit to our economy to countries which are not bringing in measures as rigorous as we are. We want to ensure that we are operating this in the same way as we buy timber, where we recognise the impact we are having globally as well as nationally. We are seeing a massive reduction in the use of peat, and we want to see it end. We have set forth a clear timetable for that to happen. The target of 2026, with certain exemptions, will mean that there will be a tiny amount left which will continue to be used. That will maintain some key areas of our food security, such as mushroom production.

[The Lord Bishop of St Albans]

My Lords, the Lea Valley in my diocese is an area sometimes known as Britain’s salad bowl. The Lea Valley Growers Association already faces huge problems, mainly because of the increase in energy costs at the moment, and many of these growers are going out of business. Its concern is that some crops are grown in very specialist ways, and some of the alternatives are not working very well. The association wants real guarantees and help to make sure that, where there are not good alternatives, growers have some security for their planning at a time when many of them are not planting anymore. Can the Minister give those assurances?

[Lord Benyon (Con)]

The right reverend Prelate accurately sums up the difficulty for some growers. We have learned, through detailed engagement with the industry, that the alternatives have not been easy to produce but, as the noble Baroness says, great progress has been made in finding new media. Large organisations now declare themselves peat free, and we want to ensure that the specialist areas can continue to move towards our clear timeline of 2026, with certain exemptions that will allow the propagation of plants that are very much needed and the protection of businesses, such as he mentions.

[Lord Taylor of Holbeach (Con)]

Perhaps noble Lords will know of my interest in the horticultural industry, and I might say that our firm is peat free: we use it neither as a growing medium nor as a packing medium. What help are the Government giving to the horticultural industry in practical terms that will make it easier? The right reverend Prelate put the case for specialist growers that are finding the alternatives suggested to them not effective whatever. There will need to be a partnership between the industry and government, and I should like to hear that from the Minister.

[Lord Benyon (Con)]

My noble friend is absolutely right, and there is a very good partnership in dealing with this. He comes from a part of the world where there is a lot of peat, but it is a diminishing resource. We want to talk not just about the use of peat for crops that we grow in specialist settings but protecting peat where it is farmed. That is another issue where we are determined to react to the clear direction given to us by the Climate Change Committee, and this is all part of that.

[Lord Curry of Kirkharle (CB)]

My Lords, banning peat is something we obviously all support and want to achieve as soon as possible, but, as the Minister has highlighted, the supply of peat is a complex issue. Can he reassure the House that the department has carried out an environmental impact assessment of the alternatives to peat to make sure that we are not jumping out of the frying pan into the fire?

[Lord Benyon (Con)]

The noble Lord makes a very good point: in every policy area, there is an unintended consequence unless we fully consider it. In producing alternative media, there is sometimes a cost to the environment. If we are buying coir from abroad, what impact is that having on some very vulnerable parts of the world? There are many other growing media with which we have to ensure that, in our determination to protect our remaining peatlands, we are not exporting the problem and causing problems further afield. It is a very difficult issue, as the noble Lord rightly raises, and I assure him that we are all across this subject.

[Baroness Hayman of Ullock (Lab)]

My Lords, clearly it is critical that we stop peat extraction, but restoration must also be a priority. What are the Government’s plans to increase the restoration of our peatlands, and what resources are being provided, including through ELMs?

[Lord Benyon (Con)]

In our environmental improvement plan we have set clear targets for the restoration of peat, both in uplands and lowlands. With lowland peat this involves re-wetting and assisting those growers to farm in a different way on wetter peatlands using cover crops. In uplands we have a demanding target of restoring moorland peat in a way that reflects the fact that it locks up an enormous tonnage of carbon every year. I do not know of any other country that is doing more to protect its peatlands.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, something that really annoys me about this Government—

[Noble Lords]

Oh!

[Baroness Jones of Moulsecoomb (GP)]

All right, one of the things that really annoys me about this Government is that they are not coherent or joined-up in their thinking. The Government have just allocated £20 billion to develop carbon capture and storage, and at the same time they are allowing CO₂ to be released from peat, which is one of nature’s own carbon sequestration systems. Why are the Government not more joined-up in their thinking and why can they not see that they are encouraging damage to the climate?

[Lord Benyon (Con)]

The noble Baroness has made the point that I am about to make rather better than I will, and that is that we need to do all of these things. We need carbon capture and storage, because that will be a big part of dealing with our greenhouse gas emissions and protecting our environment, including our peatlands. I am sorry that this Government annoy her; I live for the moment when she and her Green Party colleague stand up and congratulate the Government on having serious targets for protecting our peatland and addressing climate change in a way that no other country is.

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble friend not accept that one of the reasons he is able to pass laws and deal with this in a balanced manner is he has the freedom to do so because we have left the European Union?

[Lord Benyon (Con)]

I did not see that one coming. I may have been on a different side to my noble friend but I can tell him that, on environmental issues, I am enjoying the freedom that I have, both nationally and internationally, to take action to protect our environment.

Secondary Metastatic Breast Cancer

Tuesday 9th May 2023 Lords Chamber

Question

14:46

Asked by

[Baroness Ritchie of Downpatrick]

To ask His Majesty’s Government what assessment they have made of the incidence of secondary metastatic breast cancer in England.

[Lord Evans of Rainow (Con)]

My Lords, the latest cancer registration data shows that secondary breast cancer accounted for 14% of the 39,871 recorded diagnoses of female breast cancers. NHS England is funding a new clinical audit on breast cancer, including metastatic breast cancer, to provide evidence for cancer service providers of where patterns of care may vary, in order to increase the consistency of access to treatments and help stimulate improvements in outcomes for patients. The first outputs are expected next year.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the Minister for his Answer. Given the anticipated rise in cancer incidence, what steps are the Government taking to increase the NHS’s capacity to deliver innovative radiotherapy treatments for cancer—including molecular radiotherapies, which have additional infrastructure requirements? Also, what access to clinical trials and medicines are the Government providing for those diagnosed with metastatic secondary breast cancer? While I welcome the audit, will it be made permanent?

[Lord Evans of Rainow (Con)]

My Lords, the Healthcare Quality Improvement Partnership commissions, develops and manages the National Clinical Audit and Patient Outcomes Programme on behalf of NHS England, NHS Wales and the other devolved nations. This includes five national clinical audits focused on priority cancers, such as prostate, lung, breast, oesophageal, gastric and bowel cancers. These audits have been introduced to reduce variation in treatment by demonstrating where care is being provided in line with standards, and where a service is doing well or could be improved. Five additional new clinical audits were announced in May 2021, one of which will focus on metastatic breast cancer. I would be very happy to update the House on the metastatic breast cancer audit once it is in a form that I can share.

[Baroness Manzoor (Con)]

My Lords, the audits are very welcome, but nevertheless there is great variation in the way in which innovative drugs are being given to some patients. With the prognosis being much better with new, innovative drugs and treatments, what access is particularly given to those patients?

[Lord Evans of Rainow (Con)]

My Lords, the Government are committed to supporting timely access for NHS patients to clinically effective and cost-effective new drugs, including for breast cancer. NICE is able to recommend the vast majority of cancer medicines that it appraises. It has also made positive recommendations in all 19 of its appraisals of breast cancer treatments since 2016. This track record has been made possible by the cancer drugs fund, which has benefited more than 88,000 patients as of March 2023, with 102 medicines treating 241 different cancers having received funding. The CDF has enabled breast cancer patients to access promising new medicines such as Enhertu and Ibrance, while allowing for the collection of further data on their clinical and cost effectiveness.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely.

[Baroness Brinton (LD) [V]]

My Lords, while it is good to hear about the audit, five months ago respected oncologist Professor Carlo Palmieri from Liverpool University estimated that the number of cases of metastatic breast cancer in England increased from more than 48,000 in 2019 to more than 57,000 in 2020-21, resulting in an increased need for clinical activity and work. What planning, design and recommissioning of appropriate cancer services have been undertaken by the NHS? Have the Government provided the extra resources needed to deliver clinical services to these patients this year?

[Lord Evans of Rainow (Con)]

The department has committed an additional £8 billion from 2022-23 to 2024-25, on top of the £2 billion elective recovery fund and the £700 million targeted investment fund already made available to the NHS. The Autumn Statement 2022 provided additional funding of £3.3 billion, and £3.3 billion for 2024-25, to support the NHS in managing the pressures that it faces.

[Baroness Merron (Lab)]

My Lords, modelling from Cancer Research UK shows that the number of cancer cases in the UK is projected to rise by as much as a third in the next 15 years. As it takes 15 years to train an oncologist, a pathologist, a radiologist or a surgeon, can the Minister assure the House that the Government’s very long-awaited workforce plan will give transparent and ambitious projections for 10, 15 and 20 years into the future, to reflect the time it takes to train the cancer specialists that patients need?

[Lord Evans of Rainow (Con)]

The target within the cancer workforce plan of more than 4,000 staff members for 2016 and 2021 was exceeded by 226, with an annual growth rate of the cancer workforce of 3% to 4%. The Government have committed to publishing an NHS long-term workforce plan for the next 15 years, covering doctors, nurses and other key professionals. This should be published in spring 2023. In 2023-24, NHS England will continue to make investments in education and training to increase capacity in the cancer and diagnostics workforce, building on the £81 million invested in 2022-23.

[Lord Sandhurst (Con)]

My Lords, earlier questions have indicated the importance of accurate data. What steps are the Government taking to ensure that data is collected to find out the number of patients living with metastatic breast cancer today?

[Lord Evans of Rainow (Con)]

My Lords, up-to-date and accurate data is critical to finding a cure for this terrible disease. The National Cancer Registration and Analysis Service works closely with hospital trusts to determine sources of data that can be used to complete the cancer outcomes and services dataset, and works with the software suppliers of cancer management systems to ensure that data items can be recorded. Compliance and data standards are monitored by local integrated care boards, otherwise known as ICBs.

[Lord Stirrup (CB)]

My Lords, time is critical in all cancer cases. What impact is the ongoing industrial action in the NHS having on the average delays to cancer diagnoses and the commencement of treatment for such cancers?

[Lord Evans of Rainow (Con)]

I thank the noble and gallant Lord for that question. I do not have specific data regarding strike action, but while strike action is unhelpful, the faster diagnosis standard, which ensures that 75% of patients receive a definitive diagnosis regarding cancer within 28 days of referral from a GP or screening services, was met for the first time in February 2023, at 73.5%.

[Lord Newby (LD)]

My Lords, the Minister said that the workforce plan would be published this spring. In his department, when does spring end?

[Lord Evans of Rainow (Con)]

I can reassure the noble Lord that I asked that exact question before I came to this Dispatch Box. Unfortunately, I cannot give a definition of spring; my personal view is that spring ends sort of at the end of June, but I hope to bring a work- force plan to noble Lords sooner rather than later.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, perhaps I could assist the Minister. This morning he may have been listening to one of his colleagues, who told the “Today” programme that, in his view, the workforce plan would be published within the next couple of months. I think that is a slightly less precise answer than the one he has just given, for which no doubt the House is grateful. Of the very large numbers that the Minister has mentioned in the course of giving various answers on this Question, can he tell the House how much of the money he has mentioned is new money, and how much of it is simply being repurposed from the current NHS budget?

[Lord Evans of Rainow (Con)]

In an answer I gave just a moment ago, I referred to the Autumn Statement—from 2022, just last autumn—providing additional funds of £3.3 billion. But on the precise question that the noble Baroness asked, I am afraid I will have to write to her.

[Lord Hunt of Kings Heath (Lab)]

Can the Minister guarantee to the House that the long-awaited workforce plan will contain specific numbers and targets for each clinical group—numbers to be trained over the next 10 or 15 years, accompanied by a commitment from the Treasury to fund those places? Otherwise, it will be a waste of time.

[Lord Evans of Rainow (Con)]

The noble Lord raises a very good point, and I will feed that back to the department.

[Baroness Bryan of Partick (Lab)]

My Lords, can the Minister assure us that older women, both those who have experienced breast cancer and those who have not, can continue to have access to breast cancer screening into their 70s and older?

[Lord Evans of Rainow (Con)]

Absolutely. We have provided an extra £10 million for the breast screening programme, which will provide 28 new breast screening units, targeted at areas with the greatest challenges of uptake and coverage, which includes more senior members of the community.

Vehicles: Headlamp Glare

Tuesday 9th May 2023 Lords Chamber

Question

14:56

Asked by

[Baroness Hayter of Kentish Town]

To ask His Majesty’s Government, further to the Written Answer by Baroness Vere of Norbiton on 31 March (HL6792), what progress has been made at the United Nations to amend headlamp aiming criteria so as to reduce the risk of glare from LED and other light sources.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, the United Nations Economic Commission for Europe’s road vehicle lighting expert group met at the end of April and agreed changes to the headlamp aim requirements to reduce the occurrence of glare. This includes the introduction of mandatory automatic headlamp levelling systems for all types of headlamps in new vehicles, most likely from 1 September 2027.

[Baroness Hayter of Kentish Town (Lab)]

I thank the Minister for that Answer, which deals only with the aiming of the lights and not the lights themselves, and for the meeting that she had with me. However, the Department for Transport seems to think that, because no deaths have been recorded, there is not a problem. In fact, the College of Optometrists reports that nearly all their members are seeing patients presenting with what they think is a problem with the eyes, to discover it is the lights from cars that are at fault rather than their sight. Many people are in fact choosing not to drive at night because of that. Since my last Oral Question, I have heard from cyclists saying they have a problem, and from motorcyclists who say that, when it is wet, there is a real dazzle with the visors. There are three-quarters of a million cars retrofitted with unregulated LED lights; that is a real road safety issue. Could the Minister perhaps get the department on to the front foot, to get some research done and get some action? We should not wait for accidents and deaths before we do something about this problem.

[Baroness Vere of Norbiton (Con)]

I am delighted to let the noble Baroness know that the department has already done research in this area. The 2018 research concluded that overall there are no direct adverse health effects from LED lights in normal use. However, the crux of all this—the noble Baroness did point it out—is that there is no evidence of any causal link at all to headlight glare causing accidents. Glare is subjective; sometimes it can be caused by poor eye health, which can be corrected in certain circumstances, but we cannot eliminate glare altogether, because of course having headlights pointing in the right direction is essential for road safety.

[Lord Aberdare (CB)]

My Lords, can the noble Baroness tell us whether and how the issue of headlamp glare is addressed as part of the MoT testing process? I understand that many newer headlamps may not be properly checked for aim during an MoT inspection because the equipment used by MoT testing stations to accurately measure aim does not work with the latest high-intensity headlamps. What steps might the Government take to remedy this, or indeed to include brightness as well as aim in the MoT testing criteria?

[Baroness Vere of Norbiton (Con)]

I will have to take that back to the department. It is not an issue I have come across previously. Headlight aim and bulbs are checked at the annual MoT test but, obviously, if there is not the correct equipment to do that we need to do something about it. Again, I will have to take that to the department; it is not something that has previously been brought to my attention.

[Lord Berkeley (Lab)]

My Lords, if the Government intend to bring in some regulations on glare, could it be extended to the glare from cycle headlights? Some of them are very bright and dazzle you at night. In this House many noble Lords talk about cycles with no lights, which is just as dangerous, but perhaps she could just look at the new lights that some cyclists use and check that they conform as well.

[Baroness Vere of Norbiton (Con)]

I am not aware that there are regulations around the use of bright lights for cyclists. I agree that they could indeed cause glare and be a road safety issue and, again, I will take that back to the department.

[Baroness Randerson (LD)]

The noble Baroness is urging action by the Government on a road safety issue, and another area where we need action is on e-scooters. Research by the Parliamentary Advisory Council for Transport Safety shows that between 2019 and 2021 we went from zero accidents involving injury to roughly 1,400, and reports by A&E services show that a disproportionate number involve head injuries. We have been promised a major transport Bill for four years now, so are we going to get that before the general election? As we have illustrated this afternoon, there are a number of road safety issues that need including in it. If not, do we put it down as another broken government promise?

[Baroness Vere of Norbiton (Con)]

The Government are of course looking very carefully at the evidence around e-scooters, are considering policy, and will bring proposals before Parliament when parliamentary time allows.

[The Earl of Clancarty (CB)]

My Lords, I also thank the Minister for seeing some of us about these concerns. Can she say whether headlights causing glare potentially have a disruptive effect on wildlife, including mammals and bees, as is now being argued for daylight-approximating LED street lighting in locations where efforts are being made to reduce such lighting to enhance the environment?

[Baroness Vere of Norbiton (Con)]

I am not aware that there are specific concerns around wildlife and headlights. There are certainly sometimes concerns about where wildlife crosses a road very frequently, and there is a road sign now available to warn drivers that this may be the case. If the noble Earl has any evidence, I would be very happy to see it.

[Baroness Taylor of Stevenage (Lab)]

My Lords, in the past decade the number of passenger cars produced in the UK has declined from over 1.5 million to fewer than 800,000. Growing the UK’s motor manufacturing industry would not only provide a real boost to the economy and create jobs but also allow the Government to support the production of better-quality and well-regulated vehicles, including specifying safety features such as headlamp criteria. What steps are the Government taking to support the car manufacturing industry?

[Baroness Vere of Norbiton (Con)]

Actually, what the Government are doing to support the car manufacturing industry is working in lockstep with our colleagues internationally. As the noble Baroness will know, many of the regulations around type approval for cars come from this international community—about 75%. The extent to which we are able to work with our friends and neighbours in other countries on road safety issues means that this provides the level playing field that the UK automotive manufacturing sector needs.

[Lord Cormack (Con)]

Does my noble friend agree that one of the curses of the age is light pollution? It is very difficult to go anywhere and enjoy natural evening light. While I accept the importance of safety features on vehicles, can the Government also do something to encourage developing more areas which are not polluted by light?

[Baroness Vere of Norbiton (Con)]

That is slightly beyond my brief but, from a transport and a car perspective, one of the reasons why we have dipped headlights is to prevent light pollution for other drivers and for pedestrians et cetera using the roads

[Baroness Hussein-Ece (LD)]

My Lords, my noble friend specifically asked a question about safety and e-scooters; I do not think it was dealt with in a way that the House might want. The figures I have are 1,352 collisions—compared with 460 in 2020—1,434 people injured and 10 killed, all of whom were e-scooter riders. That is Department for Transport information. Could the Minister answer the question about what is being done to improve road safety for pedestrians, cyclists and other road users?

[Baroness Vere of Norbiton (Con)]

I am unable to say much more then I said before. I welcome the stats that the noble Baroness gave the House. The Government are also looking at the evidence that they are collating and are considering policy. We will make a decision as to how we take forward these new forms of transport in due course.

Energy Profits Levy

Tuesday 9th May 2023 Lords Chamber

Question

15:05

Asked by

[Lord McNicol of West Kilbride]

To ask His Majesty’s Government what assessment they have made of the impact of the Energy Profits Levy on energy companies.

[The Parliamentary Secretary, HM Treasury (Baroness Penn) (Con)]

The energy profits levy was introduced to respond to extraordinary profits in the oil and gas sector and includes an investment allowance to encourage companies to reinvest their profits in the UK. It has raised £2.8 billion to date and is expected to raise almost £26 billion by March 2028, in addition to around £25 billion from the permanent regime over the same period.

[Lord McNicol of West Kilbride (Lab)]

I thank the Minister for her response. We have all seen the eye-watering profits of the oil and gas companies. The energy profits levy does not treat all companies the same. Many of the largest companies pay considerably less, with their profits and extraction being largely outside the UK. This is not the same for many of the smaller domestic UK producers. Moreso, the EPL has a more favourable capital relief than the electricity generator levy. How can the Government justify a levy that gives favourable treatment to oil and gas companies over renewable developers?

[Baroness Penn (Con)]

On the noble Lord’s first point, he is right that the energy profits levy is applied to profits made in the UK or on the UK continental shelf. That is in line with other profit-based taxes on companies that operate in the UK and overseas. On the difference between the energy profits levy and the electricity generator levy, they are structured in completely different ways. The headline rates of those two taxes are also completely different. We have different programmes in place to ensure that we incentivise continuing investment in our renewables, which is why we have such a great track record on delivering renewable energy in the UK.

[Baroness Sheehan (LD)]

My Lords, one of the peculiarities between the energy profits levy and the electricity generator levy is the huge difference in tax relief—80% and 0% respectively, as the noble Lord, Lord McNicol, alluded to. So why this preferential treatment for the oil and gas sector? It is not as though we need new sources of fossil fuels for domestic use—or are the IEA, the IPCC, the vast bulk of UK scientists and the Government’s own net zero tsar, Chris Skidmore, wrong on this?

[Baroness Penn (Con)]

My Lords, I disagree with the noble Baroness that there is preferential treatment for the oil and gas sector, which faces a far higher tax rate based on the extraordinary profits it is benefiting from. That is entirely appropriate. On the investment incentive, we will continue to need oil and gas as we transition to net zero. We need to encourage investment into UK oil and gas fields to help meet that demand, and that is something the Government will continue to do.

[Lord Browne of Ladyton (Lab)]

My Lords, in November 2022 the current Chancellor estimated that the levy would raise £40 billion over six years. Six months later, the Treasury’s estimate seems to have gone down to £28 billion. What is responsible for that? Is it by any chance the OBR’s estimate of the increase in oil and gas expenditure by these oil and gas companies, rather than renewables expenditure, which they released alongside the Spring Budget, and the consequential forecast increase in tax relief on those sectors’ windfall tax bills?

[Baroness Penn (Con)]

My Lords, a number of factors affect predicted revenues from the EPL, not least the high degree of volatility that we have seen in commodity prices. I say to the noble Lord that, if we do not have investment allowances in place and if we do not invest in the future of this industry in the UK, there will be less revenue in future coming from UK oil and gas fields to contribute to the Exchequer and our priorities in future.

[Lord Kamall (Con)]

My Lords, following that answer by the Minister, I completely agree that we still need oil and gas as we transition to net zero. We cannot have a modern digital economy with high-speed electric rail running on solar and wind only, as the technology stands. However, the issue with the levy is that there are companies that are now saying they will pull investment from the North Sea. So how do we encourage that investment, given that we need it in the transition to net zero?

[Baroness Penn (Con)]

My noble friend is right. That is why the Government have always sought to deliver a balance between a fair return for the UK from the use of its resources and providing the right conditions to attract investment in the North Sea. That is why we have the investment allowance in the EPL that provides an additional incentive for companies to reinvest profits in the UK. On the point about environmental impact, the level of tax relief available for upstream decarbonisation expenditure was increased from January this year to incentivise companies for the cleaner production of oil and gas.

[Lord Livermore (Lab)]

My Lords, the Government’s energy levy leaves billions in excess profits on the table while many households struggle through an unprecedented cost of living crisis. Only last week BP announced quarterly profits of over £6 billion while Shell recorded a quarterly profit increase of 22%, handing a further £5 billion to shareholders and now allocating more to dividend payments alone than to its entire investment in renewables. Given that, and with households and small businesses facing sky-high energy bills, how well does the Minister think the current levy is working?

[Baroness Penn (Con)]

I welcome the noble Lord to the Front Bench. He referred to figures that are the global profits of companies. As I have said to his noble friend, the UK applies its windfall tax to UK profits, and I think that is the Labour proposal also. Abolishing the investment allowance would be counter-productive. As I have said, the UK is still reliant on gas for its energy supply. Reducing incentives to invest would lead to investors pulling out of the UK, damaging the economy, causing job losses and leading to lower future tax revenue—tax revenue that we have used to put in place unprecedented cost of living support to families, which is still going out to households at the moment, so that those who are worried about their bills who are on low incomes and means-tested benefits can look forward to more support coming from the Government over the next year.

[Lord Woodley (Lab)]

My Lords, while I am delighted that the Government took Labour’s advice to introduce the windfall tax that has been mentioned, there is no doubt that what is happening now, with the profiteering coming from these energy giants, is insufficient and is just not working. In fact, I would go as far as to say that it is almost peanuts when you look at the profits that were announced last week. So when will the Government fight back against “greedflation” and bring in a windfall tax with real teeth in it—something similar to what is happening across the rest of Europe at the moment?

[Baroness Penn (Con)]

I do not know whether referring to over £50 billion of tax take as “peanuts” reflects the broader Labour Party’s attitude towards public finances, but the Government consider that the measures we have put in place are working well. We need to balance the rightful approach of taxing the unexpected profits of these companies while ensuring that we have investment incentives in place that protect UK jobs and UK energy security.

[Lord McLoughlin (Con)]

Does my noble friend have any figures for the amount of money when profits are made that goes into pension funds and therefore to people who are earning pensions?

[Baroness Penn (Con)]

My noble friend makes an important point. Investors in these companies can come from all sources, including pension funds. It is right and proper that they think about the return they get from their investments when making those decisions.

[Baroness Hayman (CB)]

My Lords, I declare my interests. May I take the Minister back to her fundamental argument that the electricity generator levy, which applies to renewable energy, is completely different from the energy profits levy? She has argued strongly that the latter needs the additional investment allowance to encourage investment in oil and gas, but somehow the electricity generator levy does not need that additional investment incentive. Is she absolutely sure that that is true and is she in any way concerned about the report that we may lose some offshore wind projects because of it?

[Baroness Penn (Con)]

The electricity generator levy reflects a historic approach to how we pay for our electricity. New electricity contracts are often done, for example, under the contracts for difference process, which is not subject to this levy. We have also put in place a wide range of other measures to support investment in renewables. That is why we have such a great track record and why I have every faith that we will meet our stretching targets on decarbonisation in future.

Business of the House

Tuesday 9th May 2023 Lords Chamber

Timing of Debates

15:16

Moved by

[Earl Howe]

That Standing Order 38(1) (Arrangement of the Order Paper) be dispensed with on Wednesday 10 May 2023 to enable debate on the second reading of the Illegal Migration Bill to begin before Oral Questions that day.

[Earl Howe (Con)]

My Lords, I beg to move the Motion on the Order Paper in the name of the Leader of the House.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I think this is a debatable Motion.

[Earl Howe (Con)]

My Lords, I am more than happy to hear from the noble Lord in a second. Although I principally rise to move the Motion, I should like to seek the indulgence of the House on one matter before I briefly address what the Motion is for.

Your Lordships have just returned from the Coronation Recess. Many of the staff of your Lordships’ House did not enjoy the weekend off. As many of us know, they were in this building, supporting noble Lords who were attending the Coronation events. I know that our tireless doorkeepers were here from the early hours of Saturday to assist with robes, as were those providing the excellent catering and those keeping us all safe. While it is always invidious to pick out individuals, I pay especial tribute to Black Rod’s office. During the last weeks, its staff have dealt with all sorts of anxious queries with their characteristic endless patience. I am sure that all noble Lords will join me in thanking all the staff involved for their dedication.

[Noble Lords]

Hear, hear.

[Earl Howe (Con)]

I turn briefly to the Motion. Tomorrow, the House will debate the Illegal Migration Bill. This is a flagship piece of legislation and 87 noble Lords have indicated their desire to speak. To allow the maximum possible time for debate, the usual channels have agreed to sit at 11 am. The House will consider the Second Reading of the Bill between 11 am and 2 pm, when we will adjourn to allow Members to attend group meetings. The House will resume at 3 pm. After Oral Questions and any Private Notice Questions, we will return to the Bill. We will break after 6 pm to consider Commons Amendments to the Higher Education (Freedom of Speech) Bill. Once this is complete, we will return to the Bill until the rise of the House. These extra hours have allowed the usual channels to agree to a six-minute advisory speaking time, which I hope will allow all sides of the House to express their positions satisfactorily on this important Bill. I beg to move.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, it always the case that when there is a difficulty for the Government, the noble Earl, Lord Howe, is put forward to deal with it, because we all love him so much. The Government think they can get away with anything when they put the noble Earl up. However, I associate myself with the remarks that he made in relation to all the staff; I am sure everyone in the House would do that. It is one of the reasons I am concerned that we are going to meet at an early hour tomorrow, with this whole helter-skelter of activity during Wednesday.

Ideally, if the Government had not got their legislative programme into a total mess—we all know it is a total mess, with Bills being brought in, taken out again and amended, so we do not know where we are—and if we were dealing with this properly, as we ought to be, the obvious thing would be to have two days for Second Reading. Many Members want to speak in the debate—87, I think the noble Earl said—but then we could deal with it properly. After all, the Illegal Migration Bill is a very important Bill. As one of my colleagues said, they are not sure whether “illegal” refers to migration or to the Bill. I think it is the Bill.

The noble Earl, Lord Howe, has been put forward. The noble Lord, Lord True, would make a good case but he is not as persuasive—not as gentle and kind—as the noble Earl. This is going to happen again and again unless we take a firm stand now. I hope we get an assurance from the noble Earl that it is not going to happen again and again, disrupting our Wednesdays, and maybe even having us meeting early on days when those of us who do not live in or near London have difficulties. I hope we will have a guarantee that we will not have this again and again. The only reason we are having is it that the Government’s legislative programme is in absolute disarray, and we should not be made to suffer for it.

[Lord Collins of Highbury (Lab)]

My Lords, I want briefly to add my comments to those of the noble Earl regarding the staff on Saturday. Not only did they carry out their duties well and properly but they were friendly and courteous and took extra steps to make the whole day enjoyable. I join with the noble Earl in his remarks.

Turning to my noble friend’s contribution, unfortunately my noble friend Lord Kennedy, our Chief Whip, cannot be here, so I am the friendly face. I accept the comments of my noble friend Lord Foulkes but we have agreed on tomorrow. In terms of a precedent, I hope the noble Earl will take my noble friend’s comments on board for future occasions.

[Earl Howe (Con)]

My Lords, I certainly take the comments of the noble Lord, Lord Foulkes, on board. There is always a judgment to be made, when the list of speakers is as long as it is tomorrow, as to whether one should seek to divide a Second Reading up into more than one day and thereby have a breakage by way of an adjournment, which in itself is never very satisfactory, or to do as we have done, which is to attempt to make a single debate fit into a single day. It was the general feeling in the usual channels that this is the right outcome in this instance, particularly as it will allow a reasonable speaking time for noble Lords and a reasonable rising time as well.

Motion agreed.

Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023

Tuesday 9th May 2023 Lords Chamber

Financial Services and Markets Act 2000 (Commodity Derivatives and Emission Allowances) Order 2023

Motions to Approve

15:24

Moved by

[Baroness Penn]

That the draft Orders laid before the House on 27 and 29 March be approved.

Relevant document: 36th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 2 May.

Motions agreed.

Electricity Transmission (Compensation) Bill

Order of Commitment discharged
Tuesday 9th May 2023 Lords Chamber

Order of Commitment

15:25

Moved by

[Lord McLoughlin]

That the order of commitment be discharged.

[Lord McLoughlin (Con)]

My Lords, I understand that no amendments have been set down to 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.

Motion agreed.

Strikes (Minimum Service Levels) Bill

3rd reading
Tuesday 9th May 2023 Lords Chamber

Third Reading

15:25

The Schedule

Amendment 1

Moved by

[Lord Collins of Highbury]

1: The Schedule, page 7, leave out lines 13 and 14

[Lord Collins of Highbury (Lab)]

My Lords, I will not detain the House for too long. I am very grateful to the Public Bill Office and the clerks for advising me on these consequential amendments which arise from the amendments carried by the House on Report. I am grateful for these technical amendments to be approved by the House. It does not particularly change my view on the overall impact of the Bill, but I am hopeful that the Government will focus on achieving settlements, particularly in the health service, where we have seen some progress. I do not see that the Bill, even as amended, will improve the situation but I hope noble Lords will consider these technical amendments and send the Bill back as speedily as possible. I beg to move.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, these amendments are intended to tidy the Bill, following the votes to amend the Bill on Report. They intend to remove from the Bill references to Section 234E, which was removed due to the passing of Amendment 5.

By convention, the Government do not oppose these amendments as we have a duty to send to the other place Bills that are internally consistent. However, I make it clear that the Government fully expect these topics to be revisited following the consideration of these amendments in the other place, which would result ultimately in them being reconsidered here also.

[Lord Collins of Highbury (Lab)]

I note the Minister’s comments. I hope that when they return here, we will have the same level of scrutiny, because this is a bad Bill with certain consequences which will not improve industrial relations in this country—in fact, it will make them worse. It will not achieve the objectives the Government set out; it will have the completely opposite effect. Bearing those comments in mind, I welcome the Minister’s commitment to agree to these amendments.

Amendment 1 agreed.

Amendment 2

Moved by

[Lord Collins of Highbury]

2: The Schedule, page 8, line 21, leave out “, 234A and [section removed]” and insert “and 234A”

Amendment 2 agreed.

Motion

Moved by

[Lord Callanan]

That the Bill do now pass.

[Lord Callanan (Con)]

My Lords, I thank all noble Lords who have contributed to the scrutiny of the Bill. We had an extremely thorough and, perhaps at times, slightly repetitive debate, but that is the nature of the parliamentary process. I am grateful to everyone who engaged in that process. In particular, I thank my Whip, my noble friend Lady Bloomfield, who, as usual, has kept us all in order. Thankfully, nobody fell asleep during this one, so we were all spared her wrath on this occasion.

15:30

I thank the Opposition Members who contributed and, from the Government, the noble Baroness, Lady Barran, and the noble Lords, Lord Markham and Lord Murray, who also contributed to taking through various clauses. I thank my noble friend Lady Noakes, who is not in her place, for her support. There were thoughtful and considered contributions from Opposition and Liberal Democrat Front-Benchers, as well as various Cross-Benchers. As is the nature of things, I did not agree with all the contributions, but nevertheless everybody approached it in a consistent frame of mind.

I am disappointed that the Bill leaves this House in a condition which is not as the Government would have preferred. I hope that the upcoming consideration of the amendments in the other place will present an opportunity for the elected House to reconsider the Bill and its contents following the modifications. The Government fully expect many of the matters in the Bill to be reconsidered in this House.

The Bill comes at a critical time for our country, where continued industrial action is having a real, material impact on the public up and down the country. That is why the Bill was introduced. The Government still believe that the Bill gets the balance right between the right to strike and the rights of the public to go about their daily lives unencumbered by industrial action.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make two points. First, I thank the Minister and his colleague for their great courtesy in discussing various points. Secondly, I hope we learn something from this Bill. It is a simple lesson: this is not the way to legislate.

[Lord Fox (LD)]

My Lords, as the noble and learned Lord has just said, this Bill arrived in your Lordships’ House in a flawed state. It sought to bypass Parliament and the devolved legislatures, with the aim of implementing a system where the Secretary of State—they alone—could implement service levels that, in effect, make strikes illegal, exposing individuals to the risk of being fired for striking. Thanks to the hard work of your Lordships’ House, it goes back to the other end somewhat improved.

I thank the Minister for his tolerant acceptance of the debate, which I know at times he found difficult. Thanks go to the noble Baroness, Lady Bloomfield, and the Bill team, who have had to sit through all of this. A number of Cross-Benchers spoke in the debates. I pick out particularly the noble and learned Lords, Lord Hope and Lord Thomas, the noble Lord, Lord Kerr, the noble and right reverend Lord, Lord Sentamu, and the noble Baroness, Lady Meacher, and thank them for their commitment. On the Bishops’ Bench, I thank the right reverend Prelate the Bishop of Guildford. His contribution was very important, as were those from the noble Lord, Lord Wigley, and the noble Baroness, Lady Jones.

I thank His Majesty’s loyal Opposition for their contribution. I think we worked together very well, particularly with the noble Baroness, Lady O’Grady, and the noble Lord, Lord Collins, but I thank all who spoke. On these Benches, our team, including the noble Lord, Lord Allan, and the noble Baroness, Lady Randerson, gave fantastic support. They gave your Lordships very strong reasons as to why the Bill has to change. I thank Sarah Pughe in our Whips’ Office for the hard work she is doing.

When the Bill comes back, I am sure we will re-engage. I hope the team I have just listed, and others, will reconvene in the event that the Government do not see the wisdom of their ways.

[Lord Sentamu (CB)]

My Lords, I was not going to speak, but the noble Lord was very gracious in his speech. It is true that the House of Commons, as the elected House, in the end determines and fixes the law. In the light of what the noble and learned Lord, Lord Thomas, has just said, if you legislate in a bad way, the lesson you learn is to not go back to your bad ways by taking out amendments that have actually improved the legislation.

The devolved Governments not being consulted before the Government legislate will harm this United Kingdom, over which King Charles is the Head of State. I beg the other place not to take the amendments out because it is the elected House; I ask it to take them out because it thinks that that would improve the legislation. If it does not think that, please do not make us look like unruly people.

[Lord Collins of Highbury (Lab)]

My Lords, I add my thanks to the Minister for the way he has conducted himself, and I thank others who supported him. I thank the Bill team, which has been forthcoming about what it thinks the Bill means. I also thank my noble friend Lady O’Grady, who was thrown in at the deep end, as it were, having just arrived in this House; she acquitted herself brilliantly and made some forceful arguments. I thank all noble Lords who contributed to the debate, particularly those on the Lib Dem Benches, who played an active role, and those on the Bishops’ Benches, who played a positive role in highlighting the evidence about what the Bill could lead to.

On the point of the noble and learned Lord, Lord Thomas, this is a skeleton Bill, and we do not really know what it means legislatively. The remarks of the Minister’s friend, Jacob Rees-Mogg, sum it up: MPs will have no idea about the practical implications of the implementation of the powers that will be granted, not to the other House but to Ministers. There is no proper scrutiny.

Nevertheless, we have done a very good job and have amended the Bill. I hope that those amendments will be considered positively down the other end, but, as I have said at every stage of the Bill, when Labour returns to government fairly shortly, we will repeal this legislation.

Bill passed and returned to the Commons with amendments.

Online Safety Bill

Committee stage
Tuesday 9th May 2023 Lords Chamber

Committee (5th Day)

Relevant document: 28th Report from the Delegated Powers Committee

15:37

Debate on Amendment 33B resumed.

[Lord Moylan (Con)]

My Lords, I will speak to Amendment 155 in my name, and I am grateful for the support of the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Strathcarron. Some of my remarks in Committee last week did not go down terribly well with Members and, in retrospect, I realise that that was because I was the only Member of the Committee that day who did not take the opportunity to congratulate the noble Baroness, Lady Kidron, on her birthday. So at this very late stage—a week later —I make good that deficiency and hope that, in doing so, I will get a more jocular and welcoming hearing than I did last week. I will speak in a similar vein, though on a different topic and part of the Bill.

This amendment relates to Clause 65, which has 12 subsections. I regard the first subsection as relatively uncontroversial; it imposes a duty on all service providers. The effect of this amendment would be to remove all the remaining subsections, which fall particularly on category 1 providers. What Clause 65 does, in brief, is to make it a statutory obligation for category 1 providers to live up to their terms of service. Although it does not seek to specify what the terms of service must be, it does, in some ways, specify how they should be operated once they have been written—I regard that as very odd, and will come back to the reason why.

I say at the outset that I understand the motivation behind this section of the Bill. It addresses the understandable feeling that if a service provider of any sort says that they have terms of service which mean that, should there be complaints, they will be dealt with in a certain way and to a certain timetable and that you will get a response by a certain time, or if they say that they will remove certain material, that they should do what they say they will do in the terms of service. I understand what the clause is trying to do —to oblige service providers to live up to their terms of service—but this is a very dangerous approach.

First of all, while terms of service are a civil contract between the provider and the user, they are not an equal contract, as we all know. They are written for the commercial benefit and advantage of the companies that write them—not just in the internet world; this is generally true—and they are written on a take it or leave it basis. Of course, they cannot be egregiously disadvantageous to the customer or else the customer would not sign up to them; none the less, they are drafted with the commercial and legal advantage of the companies in question. Terms of service can be extreme. Noble Lords may be aware that, if you have a bank account, the terms of service that your bank has, in effect, imposed on you almost certainly include a right for the bank to close your account at any time it wishes and to give no reason for doing so. I regard that as an extreme terms of service provision, but it is common. They are not written as equal contracts between consumers and service providers.

Why, therefore, would we want to set terms of service in statute? That is what this clause does: to make them enforceable by a regulator under statute. Moreover, why would we want to do it when the providers we are discussing will have, in practice, almost certainly drafted their terms of service under the provisions of a foreign legal system, which we are then asking our regulator to ensure is enforced? My objection is not to try to find a way of requiring providers to live up to the terms of service they publish—indeed, the normal process for doing so would be through a civil claim; instead, I object to the method of doing so set out in this section of the Bill.

We do not use this method with other terms of service features. For example, we do not have a regulator who enforces terms of service on data protection; we have a law that says what companies must do to protect data, and then we expect them to draft terms of service, and to conduct themselves in other ways, that are compatible with that law. We do not make the terms of services themselves enforceable through statute and regulation, yet that is what this Bill does.

When we look at the terms of service of the big providers on the internet—the sorts of people we have in mind for the scope of the Bill—we find that they give themselves, in their terms of service, vast powers to remove a wide range of material. Much of that would fall—I say this without wanting to be controversial —into the category of “legal but harmful”, which in some ways this clause is reviving through the back door.

Of course, what could be “harmful” is extremely wide, because it will have no statutory bounds: it will be whatever Twitter or Google say they will remove in their terms of service. We have no control over what they say in their terms of service; we do not purport to seek such control in the Bill or in this clause. Twitter policy, for example, is to take down material that offends protected characteristics such as “gender” and “gender identity”. Now, those are not protected characteristics in the UK; the relevant protected characteristics in the Equality Act are “sex” and “gender reassignment”. So this is not enforcing our law; our regulator will be enforcing a foreign law, even though it is not the law we have chosen to adopt here.

15:45

YouTube policy during the pandemic prohibited material that contradicted the views of health authorities. Even my right honourable friend David Davis was removed for opposing Covid passes, but that was a legitimate political position to take and contribution to make. There is no obligation on the platforms to protect free speech or to have respect to Article 10 of the European Convention on Human Rights. They are not in any sense bound by the European convention; most of them are not in any sense European. I think very strongly that this whole section is very dangerous.

I posit an extreme case that requires a slight exercise of the imagination. Imagine if a Russian platform were to gain a significant presence in the UK. It is not impossible: nobody would have predicted TikTok emerging from China so quickly not very long ago. Imagine the terms of service said, quite in compliance with Russian law, that it would remove any material that included the words “war” and “Ukraine” together; “special military operation” would be all right, but “war” and “Ukraine” would not. Imagine that it was relatively inefficient at doing this and left such material up. Are we not in a position, as a result of this section of the Bill, of obliging Ofcom to seek to enforce that term of its service contract on a Russian platform? How absurd that would be in an extreme case, but the parallel exists with the American and other platforms.

I very much hope that my noble friend will say what I want to say, which is that, yes, there is an issue and we would like to do something. We understand the motivation here, but this is very much the wrong way of going about it. It is inimical to free speech and it leads to absurd conclusions.

[Viscount Colville of Culross (CB)]

I support Amendment 44. I am pleased that, as part of the new triple shield, the Government have introduced Clause 12 on “User empowerment duties”, which allow users to protect themselves, not just from abusive posts from other users but from whole areas of content. In the Communications and Digital Committee’s inquiry, we had plenty of evidence from organisations representing minorities and people with special characteristics who are unable adequately to protect themselves from the hate they receive online. I am glad that subsections (10) to (12) recognise specific content and users with special characteristics who are targets of abuse and need to be able to protect themselves, but subsection (3) requests that these features should be

“designed to effectively … reduce the likelihood of the user encountering content”

they want to avoid. I am concerned that “effectively” will be interpreted subjectively by platforms in scope and that each will interpret it differently.

At the moment, it will not be possible for Ofcom to assess how thoroughly the platforms have been providing these empowerment tools of protection for users. If the features are to work, there must be an overview of how effective they are being and how well they are working. When the former Secretary of State, Michelle Donelan, was asked about this, she said that there was nothing in this clause to pin an assessment on. It seems to me that the lists in Clause 12 create plenty of criteria on which to hang an assessment.

The new duties in Clause 12 provide for control tools for users against very specific content that is abusive or incites hatred on the basis of race, ethnicity, religion, disability, sex, gender reassignment or sexual orientation. However, this list is not exhaustive. There will inevitably be areas of content for which users have not been given blocking tools, including pornography, violent material and other material that is subject to control in the offline world.

Not only will the present list for such tools need to be assessed for its thoroughness in allowing users to protect themselves from specific harms, but surely the types of harm from which they need to protect themselves will change over time. Ofcom will need regularly to assess where these harms are and make sure that service providers regularly update their content-blocking tools. Without such an assessment, it will be hard for Ofcom and civil society to understand what the upcoming concerns are with the tools.

The amendment would provide a transparency obligation, which would demand that service providers inform users of the risks present on the platform. Surely this is crucial when users are deciding what to protect themselves from.

The assessment should also look for unintended restrictions on freedom of expression created by the new tools. If the tools are overprotective, they could surely create a bubble and limit users’ access to information that they might find useful. For example, the user might want to block material about eating disorders, but the algorithm might interpret that to mean limiting the user’s access to content on healthy lifestyles or nutrition content. We are also told that the algorithms do not understand irony and humour. When the filters are used to stop content that is abusive or incites hatred on the basis of users’ particular characteristics, they might also remove artistic, humorous or satirical content.

Repeatedly, we are told that the internet creates echo chambers, where users read only like-minded opinions. These bubbles can create an atmosphere where freedom of expression is severely limited and democracy suffers. A freedom of expression element to the assessment would also, in these circumstances, be critical. We are told that the tech platforms often do not know what their algorithms do and, not surprisingly, they often evolve beyond their original intentions. Assessments on the tools demanded by Clause 12 need to be carefully investigated to ensure that they are keeping up to date with the trends of abuse on the internet but also for the unintended consequences they might create, curbing freedom of expression.

Throughout the Bill, there is a balancing act between freedom of expression and protection from abuse. The user empowerment tools are potentially very powerful, and neither the service providers, the regulators nor the Government know what their effects will be. It is beholden upon the Government to introduce an assessment to check regularly how the user empowerment duties are working; otherwise, how can they be updated, and how can Ofcom discover what content is being unintentionally controlled? I urge the Minister, in the name of common sense, to ensure that these powerful tools unleashed by the Bill will not be misused or become outdated in a fast-changing digital world.

[Baroness Kidron (CB)]

My Lords, I thank the noble Lord, Lord Moylan, for his words—I thought I was experiencing time travel there—and am sympathetic to many of the issues that he has raised, although I think that some of the other amendments in the group tackle those issues in a slightly different way.

I support Amendments 44 and 158 in the name of the right reverend Prelate the Bishop of Oxford. Requiring a post-rollout assessment to ensure that the triple shield acts as we are told it will seems to be a classic part of any regulatory regime that is fit for purpose: it needs to assess whether the system is indeed working. The triple shield is an entirely new concept, and none of the burgeoning regulatory systems around the world is taking this approach, so I hope that both the Government and Ofcom welcome this very targeted and important addition to the Bill.

I will also say a few words about Amendments 154 and 218. It seems to me that, in moving away from legal but harmful—which as a member of the pre-legislative committee I supported, under certain conditionality that has not been met, but none the less I did support it—not enough time and thought have been given to the implications of that. I do not understand, and would be grateful to the Minister if he could help me understand, how Ofcom is to determine whether a company has met its own terms and conditions—and by any means, not only by the means of a risk assessment.

I want to make a point that the noble Baroness, Lady Healy, made the other day—but I want to make it again. Taking legal but harmful out and having no assessment of whether a company has met its general safety duties leaves the child safety duties as an island. They used to be something that was added on to a general system of safety; now they are the first and only port of call. Again, because of the way that legal but harmful fell out of the Bill, I am not sure whether we have totally understood how the child risk assessments sit without a generally cleaned up or risk-assessed digital environment.

Finally, I will speak in support of Amendment 160, which would have Ofcom say what “adequate and appropriate” terms are. To a large degree, that is my approach to the problem that the noble Lord, Lord Moylan, spoke about: let Parliament and the regulator determine what we want to see—as was said on the data protection system, that is how it is—and let us have minimum standards that we can rightly expect, based on UK law, as the noble Lord suggested.

I am not against the triple shield per se, but it radically replaced an entire regime of assessment, enforcement and review. I think that some of the provisions in this group really beg the Government’s attention, in order to make sure that there are no gaping holes in the regime.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I will speak to Amendments 44 and 158 in the name of the right reverend Prelate the Bishop of Oxford. I also note my support for the amendments in the name of the noble Lord, Lord Stevenson of Balmacara, to ensure the minimum standard for a platform’s terms of service. My noble friend Lord Moylan has just given an excellent speech on the reasons why these amendments should be considered.

I am aware that the next group of amendments relates to the so-called user empowerment tools, so it seems slightly bizarre to be speaking to Amendment 44, which seeks to ensure that these user empowerment tools actually work as the Government hope they will, and Amendment 158, which seeks to risk assess whether providers’ terms of service duties do what they say and report this to Ofcom. Now that the Government have watered down the clauses that deal with protection for adults, like other noble Lords, I am not necessarily against the Government’s replacement—the triple shield—but I believe that it needs a little tightening up to ensure that it works properly. These amendments seem a reasonable way of doing just that. They would ensure greater protection for adults without impinging on others’ freedom of expression.

The triple shield relies heavily on companies’ enforcement of terms of service and other vaguely worded duties, as the noble Viscount mentioned, that user empowerment tools need to be “easily accessible” and “effective”—whatever that means. Unlike with other duties in the Bill, such as those on illegal content and children’s duties, there is no mechanism to assess whether these new measures are working; whether the way companies are carrying out these duties is in accordance with the criteria set out; and whether they are indeed infringing freedom of expression. Risk assessments are vital to doing just that, because they are vital to understanding the environment in which services operate. They can reduce bureaucracy by allowing companies to rule out risks which are not relevant to them, and they can increase user safety by revealing new risks, thereby enabling the future-proofing of a regime. Can the Minister give us an answer today as to why risk assessment duties on these two strands of the triple shield—terms of service and user empowerment tools—were removed? If freedom of speech played a part in this, perhaps he could elaborate why he thinks undertaking a risk assessment is in any way a threat.

Without these amendments, the Bill cannot be said to be a complete risk management regime. Companies will, in effect, be marking their own homework when designing their terms of service and putting their finger in the air when it comes to user empowerment tools. There will be no requirement for them to explain either to Ofcom or indeed to service users the true nature of the harms that occur on their service, nor the rationale behind any decisions they might make in these two fundamental parts of their service.

Since the Government are relying so heavily on their triple shield to ensure protection for adults, to me, not reviewing two of the three strands that make up the triple shield seems like fashioning a three-legged stool with completely uneven legs: a stool that will not stand up to the slightest pressure when used. Therefore, I urge the Minister to look again and consider reinstating these protections in the Bill.

16:00

[Baroness Fox of Buckley (Non-Afl)]

My Lords, this group of amendments looks at the treatment of legal content accessed by adults. The very fact that Parliament feels that legislation has a place in policing access to legal material is itself worrying. This door was opened by the Government in the initial draft Bill, but, as we have already heard, after a widespread civil liberties backlash against the legal but harmful clauses, we are left with Clause 65. As has been mentioned, I am worried that this clause, and some of the amendments, might well bring back legal but harmful for adults by the back door. One of the weasel words here is “harmful”. As I have indicated before, it is difficult to work out from the groupings when to raise which bit, so I am keeping that for your Lordships until later and will just note that I am rather nervous about the weasel word “harmful”.

Like many of us, I cheered at the removal of the legal but harmful provisions, but I have serious reservations about their replacement with further duties via terms of service, which imposes a duty on category 1 services to have systems and processes in place to take down or restrict access to content, and to ban or suspend users in accordance with terms of service, as the noble Lord, Lord Moylan, explained. It is one of the reasons I support his amendment. It seems to me to be the state outsourcing the grubby job of censorship to private multinational companies with little regard for UK law.

I put my name to Amendment 155 in the name of the noble Lord, Lord Moylan, because I wanted to probe the Government’s attitude to companies’ terms of service. Platforms have no obligation to align their terms of service with freedom of expression under UK law. It is up to them. I am not trying to impose on them what they do with their service users. If a particular platform wishes to say, “We don’t want these types of views on our platform”, fine, that is its choice. But when major platforms’ terms of service, which are extensive, become the basis on which UK law enforces speech, I get nervous. State regulators are to be given the role of ensuring that all types of lawful speech are suppressed online, because the duty applies to all terms of service, whatever they are, regarding the platforms’ policies on speech suppression, censorship, user suspension, bans and so on. This duty is not restricted to so-called harmful content; it is whatever content the platform wishes to censor.

What is more, Clause 65 asks Ofcom to ensure that individuals who express lawful speech are suspended or banned from platforms if in breach of the platforms’ Ts & Cs, and that means limiting those individuals from expressing themselves more widely, beyond the specific speech in question. That is a huge green light to interfere in UK citizens’ freedom of expression, in my opinion.

I stress that I am not interested in interfering in the terms and conditions of private companies, although your Lordships will see later that I have an amendment demanding that they introduce free-speech clauses. That is because of the way we seem to be enacting the law via the terms of service of private companies. They should of course be free to dictate their own terms of service, and it is reasonable that members of the public should know what they are and expect them to be upheld. But that does not justify the transformation of these private agreements into statutory duties—that is my concern.

So, why are we allowing this Bill to ask companies to enforce censorship policies in the virtual public square that do not exist in UK law? When companies’ terms of service permit the suppression of speech, that is up to them, but when they supress speech far beyond the limitations of speech in UK law and are forced to do so by a government regulator such as Ofcom, are we not in trouble? It means that corporate terms of service, which are designed to protect platforms’ business interests, are trumping case law on free speech that has evolved over many years.

Those terms of service are also frequently in flux, according to fashion or ownership; one only has to look at the endless arguments, which I have yet to understand, about Twitter’s changing terms of service after the Elon Musk takeover. Is Ofcom’s job to follow Elon Musk’s ever-changing terms of service and enforce them on the British public as if they are law?

The terms and conditions are therefore no longer simply a contract between a company and the user; their being brought under statute means that big tech will be exercising public law functions, with Ofcom as the enforcer, ensuring that lawful speech is suppressed constantly, in line with private companies’ terms of service. This is an utter mess and not in any way adequate to protect free speech. It is a fudge by the Government: they were unpopular on “lawful but harmful”, so they have outsourced it to someone else to do the dirty work.

[Lord Clement-Jones (LD)]

My Lords, it has been interesting to hear so many noble Lords singing from the same hymn sheet—especially after this weekend. My noble friend Lord McNally opened this group by giving us his wise perspective on the regulation of new technology. Back in 2003, as he mentioned, the internet was not even mentioned in the Communications Act. He explained how regulation struggles to keep up and how quantum leaps come with a potential social cost; all that describes the importance of risk assessment of these novel technologies.

As we have heard from many noble Lords today, on Report in the Commons the Government decided to remove the adult safety duties—the so-called “legal but harmful” aspect of the Bill. I agree with the many noble Lords who have said that this has significantly weakened the protection for adults under the Bill, and I share the scepticism many expressed about the triple shield.

Right across the board, this group of amendments, with one or two exceptions, rightly aims to strengthen the terms of service and user empowerment duties in the Bill in order to provide a greater baseline of protection for adults, without impinging on others’ freedom of speech, and to reintroduce some risk-assessment requirement on companies. The new duties will clearly make the largest and riskiest companies expend more effort on enforcing their terms of service for UK users. However, the Government have not yet presented any modelling on what effect this will have on companies’ terms of service. I have some sympathy with what the noble Lord, Lord Moylan, said: the new duties could mean that terms of service become much longer and lawyered. This might have an adverse effect on freedom of expression, leading to the use of excessive takedown measures rather than looking at other more systemic interventions to control content such as service design. We heard much the same argument from the noble Baroness, Lady Fox. They both made a very good case for some of the amendments I will be speaking to this afternoon.

On the other hand, companies that choose to do nothing will have an easier life under this regime. Faced with stringent application of the duties, companies might make their terms of service shorter, cutting out harms that are hard to deal with because of the risk of being hit with enforcement measures if they do not. Therefore, far from strengthening protections via this component of the triple shield, the Bill risks weakening them, with particular risks for vulnerable adults. As a result, I strongly support Amendments 33B and 43ZA, which my noble friend Lord McNally spoke to last week at the beginning of the debate on this group.

Like the noble Baroness, Lady Kidron, I strongly support Amendments 154, 218 and 160, tabled by the noble Lord, Lord Stevenson, which would require regulated services to maintain “adequate and appropriate” terms of service, including provisions covering the matters listed in Clause 12. Amendment 44, tabled by the right reverend Prelate the Bishop of Oxford and me, inserts a requirement that services to which the user empowerment duties apply

“must make a suitable and sufficient assessment of the extent to which they have carried out the duties in this section including in each assessment material changes from the previous assessment such as new or removed user empowerment features”.

The noble Viscount, Lord Colville, spoke very well to that amendment, as did the noble Baronesses, Lady Fraser and Lady Kidron.

Amendment 158, also tabled by me and the right reverend Prelate, inserts a requirement that services

“must carry out a suitable and sufficient assessment of the extent to which they have carried out the duties under sections 64 and 65 ensuring that assessment reflects any material changes to terms of service”.

That is a very good way of meeting some of the objections that we have heard to Clause 65 today.

These two amendments focus on risk assessment because the new duties do not have an assessment regime to work out whether they work, unlike the illegal content and children’s duties, as we have heard. Risk assessments are vital to understanding the environment in which the services are operating. A risk assessment can reduce bureaucracy by allowing companies to rule out risks which are not relevant to them, and it can increase user safety by revealing new risks and future-proofing a regime.

The Government have not yet provided, in the Commons or in meetings with Ministers, any proper explanation of why risk assessment duties have been removed along with the previous adult safety duties, and they have not explained in detail why undertaking a risk assessment is in any way a threat to free speech. They are currently expecting adults to manage their own risks, without giving them the information they need to do so. Depriving users of basic information about the nature of harms on a service prevents them taking informed decisions as to whether they want to be on it at all.

Without these amendments, the Bill cannot be said to be a complete risk management regime. There will be no requirement to explain to Ofcom or to users of a company’s service the true nature of the harms that occur on its service, nor the rationale behind the decisions made in these two fundamental parts of the service. This is a real weakness in the Bill, and I very much hope that the Minister will listen to the arguments being made this afternoon.

[Baroness Merron (Lab)]

My Lords, I thank noble Lords from all sides of the House for their contributions and for shining a light on the point the noble Lord, Lord Clement-Jones, made near the end of his remarks about the need to equip adults with the tools to protect themselves.

It is helpful to have these amendments, because they give the Minister the opportunity to accept—as I hope he will—a number of the points raised. It seems a long time since the noble Lord, Lord McNally, introduced this group, but clearly it has given us all much time to reflect. I am sure we will see the benefits of that in the response from the Minister. Much of the debate on the Bill has focused on child safety and general practicalities, but this group helpfully allows us to focus on adults and the operation of the Government’s replacement for the legal but harmful section of the Bill. As the noble Baroness, Lady Fraser, rightly said, perhaps some tightening up of the legislation before us would be helpful. These amendments give us that chance.

16:15

My noble friend Lord Lipsey has put forward a number of amendments, which helpfully focus on the whole area of adult risk assessments, which were required under the previous iteration of the Bill but have since been drastically watered down. I would be grateful if the Minister could give some explanation as to why we find ourselves in that situation, and perhaps take the opportunity to pick up a number of the points raised in the amendments.

Quite a lot of the debate has focused around the amendments put forward in the name of the right reverend Prelate the Bishop of Oxford. These amendments take a somewhat different approach, because they require service providers to assess the extent to which their user empowerment tools are meeting the obligations laid out in Clause 12. The noble Viscount, Lord Colville, in his helpful remarks, said that it was right to keep up to date with the trends in abuse. This is a point that has come up repeatedly in our discussion: the need to make sure that this legislation is entirely fit for purpose and is able to move with the kind of changes that he referred to.

My noble friend Lord Stevenson has four very helpful amendments in this group, which focus on the minimum standards in platforms’ terms of service. This is an area we began to probe during a debate last week, where the answer seemed to be that, because terms of service are already complicated, we should not add to them. The issue here is really how we get the terms of service in the right place. All these amendments, again, take us there.

I was interested in the comments by the noble Lord, Lord Moylan, about enforceability, but again, on the issue of terms of service, the problem for me is inconsistency. We should seek to bring consistency as well as usefulness and applicability into those terms of service.

We will come on to broader amendments about user empowerment tools in the next group, but there clearly is a gap between what the Government have promised adult users, and what they are likely to end up with when the new regime is fully operational. I hope we will hear from the Minister how that gap may be closed.

I listened with great interest to the noble Baroness, Lady Fox. It is important to say that the issue here is whether algorithms should power the amount and nature of materials that come the way of users. The amendments seek to assist users to have that control, not to just be at the mercy of algorithms. It is about not individual pieces but what people can have control on. The amendments are useful in that respect. We know that there is much legal content which carries a risk of harm to adults, particularly vulnerable adults, who are not actually helped by the Bill. We need confidence that filters and other empowerment tools will make a genuine difference.

I hope that the Minister will accept that a number of these amendments are particularly helpful in strengthening the Bill, and that he will find a way to accept that form of strengthening.

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

I am very grateful to the noble Lords who have spoken on the amendments in this group, both this afternoon and last Tuesday evening. As this is a continuation of that debate, I think my noble friend Lord Moylan is technically correct still to wish the noble Baroness, Lady Kidron, a happy birthday, at least in procedural terms.

We have had a very valuable debate over both days on the Bill’s approach to holding platforms accountable to their users. Amendments 33B, 41A, 43ZA, 138A and 194A in the names of the noble Lords, Lord Lipsey and Lord McNally, and Amendment 154 in the name of the noble Lord, Lord Stevenson of Balmacara, seek to bring back the concept of legal but harmful content and related adult risk assessments. They reintroduce obligations for companies to consider the risk of harm associated with legal content accessed by adults. As noble Lords have noted, the provisions in the Bill to this effect were removed in another place, after careful consideration, to protect freedom of expression online. In particular, the Government listened to concerns that the previous legal but harmful provisions could create incentives for companies to remove legal content from their services.

In place of adult risk assessments, we introduced new duties on category 1 services to enable users themselves to understand how these platforms treat different types of content, as set out in Clauses 64 and 65. In particular, this will allow Ofcom to hold them to account when they do not follow through on their promises regarding content they say that they prohibit or to which they say that they restrict access. Major platforms already prohibit much of the content listed in Clause 12, but these terms of service are often opaque and not consistently enforced. The Bill will address and change that.

I would also like to respond to concerns raised through Amendments 41A and 43ZA, which seek to ensure that the user empowerment categories cover the most harmful categories of content to adults. I reassure noble Lords that the user empowerment list reflects input from a wide range of interested parties about the areas of greatest concern to users. Platforms already have strong commercial incentives to tackle harmful content. The major technology companies already prohibit most types of harmful and abusive content. It is clear that most users do not want to see that sort of content and most advertisers do not want their products advertised alongside it. Clause 12 sets out that providers must offer user empowerment tools with a specified list of content to the extent that it is proportionate to do so. This will be based on the size or capacity of the service as well as the likelihood that adult users will encounter the listed content. Providers will therefore need internally to assess the likelihood that users will encounter the content. If Ofcom disagrees with the assessment that a provider has made, it will have the ability to request information from providers for the purpose of assessing compliance.

Amendments 44 and 158, tabled by the right reverend Prelate the Bishop of Oxford, seek to place new duties on providers of category 1 services to produce an assessment of their compliance with the transparency, accountability, freedom of expression and user empowerment duties as set out in Clauses 12, 64 and 65 and to share their assessments with Ofcom. I am sympathetic to the aim of ensuring that Ofcom can effectively assess companies’ compliance with these duties. But these amendments would enable providers to mark their own homework when it comes to their compliance with the duties in question. The Bill has been designed to ensure that Ofcom has responsibility for assessing compliance and that it can obtain sufficient information from all regulated services to make judgments about compliance with their duties. The noble Baroness, Lady Kidron, asked about this—and I think the noble Lord, Lord Clement-Jones, is about to.

[Lord Clement-Jones (LD)]

I hope the Minister will forgive me for interrupting, but would it not be much easier for Ofcom to assess compliance if a risk assessment had been carried out?

[Lord Parkinson of Whitley Bay (Con)]

I will come on to say a bit more about how Ofcom goes about that work.

The Bill will ensure that providers have the information they need to understand whether they are in compliance with their duties under the Bill. Ofcom will set out how providers can comply in codes of practice and guidance that it publishes. That information will help providers to comply, although they can take alternative action if they wish to do so.

The right reverend Prelate’s amendments also seek to provide greater transparency to Ofcom. The Bill’s existing duties already account for this. Indeed, the transparency reporting duties set out in Schedule 8 already enable Ofcom to require category 1, 2A and 2B services to publish annual transparency reports with relevant information, including about the effectiveness of the user empowerment tools, as well as detailed information about any content that platforms prohibit or restrict, and the application of their terms of service.

Amendments 159, 160 and 218, tabled by the noble Lord, Lord Stevenson, seek to require user-to-user services to create and abide by minimum terms of service recommended by Ofcom. The Bill already sets detailed and binding requirements on companies to achieve certain outcomes. Ofcom will set out more detail in codes of practice about the steps providers can take to comply with their safety duties. Platforms’ terms of service will need to provide information to users about how they are protecting users from illegal content, and children from harmful content.

These duties, and Ofcom’s codes of practice, ensure that providers take action to protect users from illegal content and content that is harmful to children. As such, an additional duty to have adequate and appropriate terms of service, as envisaged in the amendments, is not necessary and may undermine the illegal and child safety duties.

I have previously set out why we do not agree with requiring platforms to set terms of service for legal content. In addition, it would be inappropriate to delegate this much power to Ofcom, which would in effect be able to decide what legal content adult users can and cannot see.

Amendment 155, tabled by my noble friend Lord Moylan, seeks to clarify whether and how the Bill makes the terms of service of foreign-run platforms enforceable by Ofcom. Platforms’ duties under Clause 65 apply only to the design, operation and use of the service in the United Kingdom and to UK users, as set out in Clause 65(11). Parts or versions of the service which are used in foreign jurisdictions—

[Baroness Fox of Buckley (Non-Afl)]

On that, in an earlier reply the Minister explained that platforms already remove harmful content because it is harmful and because advertisers and users do not like it, but could he tell me what definition of “harmful” he thinks he is using? Different companies will presumably have a different interpretation of “harmful”. How will that work? It would mean that UK law will require the removal of legal speech based on a definition of harmful speech designed by who—will it be Silicon Valley executives? This is the problem: UK law is being used to implement the removal of content based on decisions that are not part of UK law but with implications for UK citizens who are doing nothing unlawful.

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness’s point gets to the heart of the debate that we have had. I talked earlier about the commercial incentive that there is for companies to take action against harmful content that is legal which users do not want to see or advertisers do not want their products to be advertised alongside, but there is also a commercial incentive to ensure that they are upholding free speech and that there are platforms on which people can interact in a less popular manner, where advertisers that want to advertise products legally alongside that are able to do so. As with anything that involves the market, the majority has a louder voice, but there is room for innovation for companies to provide products that cater to minority tastes within the law.

16:30

[Lord Moylan (Con)]

My Lords, my noble friend has explained clearly how terms of service would normally work, which is that, as I said myself, a business might write its own terms of service to its own advantage but it cannot do so too egregiously or it will lose customers, and businesses may aim themselves at different customers. All this is part of normal commercial life, and that is understood. What my noble friend has not really addressed is the question of why uniquely and specifically in this case, especially given the egregious history of censorship by Silicon Valley, he has chosen to put that into statute rather than leave it as a commercial arrangement, and to make it enforceable by Ofcom. For example, when my right honourable friend David Davis was removed from YouTube for his remarks about Covid passes, it would have been Ofcom’s obligation not to vindicate his right to free speech but to cheer on YouTube and say how well it had done for its terms of service.

[Lord Parkinson of Whitley Bay (Con)]

Our right honourable friend’s content was reuploaded. This makes the point that the problem at the moment is the opacity of these terms and conditions; what platforms say they do and what they do does not always align. The Bill makes sure that users can hold them to account for the terms of service that they publish, so that people can know what to expect on platforms and have some form of redress when their experience does not match their expectations.

I was coming on to say a bit more about that after making some points about foreign jurisdictions and my noble friend’s Amendment 155. As I say, parts or versions of the service that are used in foreign jurisdictions but not in the UK are not covered by the duties in Clause 65. As such, the Bill does not require a provider to have systems and processes designed to enforce any terms of service not applicable in the UK.

In addition, the duties do not give powers to Ofcom to enforce a provider’s terms of service directly. Ofcom’s role will be focused on ensuring that platforms have systems and processes in place to enforce their own terms of service consistently rather than assessing individual pieces of content.

Requiring providers to set terms of service for specific types of content suggests that the Government view that type of content as harmful or risky. That would encourage providers to prohibit such content, which of course would have a negative impact on freedom of expression, which I am sure is not what my noble friend wants to see. Freedom of expression is essential to a democratic society. Throughout the passage of the Bill, the Government have always committed to ensuring that people can speak freely online. We are not in the business of indirectly telling companies what legal content they can and cannot allow online. Instead, the approach that we have taken will ensure that platforms are transparent and accountable to their users about what they will and will not allow on their services.

Clause 65 recognises that companies, as private entities, have the right to remove content that is legal from their services if they choose to do so. To prevent them doing so, by requiring them to balance this against other priorities, would have perverse consequences for their freedom of action and expression. It is right that people should know what to expect on platforms and that they are able to hold platforms to account when that does not happen. On that basis, I invite the noble Lords who have amendments in this group not to press them.

[Lord McNally (LD)]

My Lords, in his opening remarks, the Minister referred to the fact that this debate began last Tuesday. Well, it did, in that I made a 10-minute opening speech and the noble Baroness, Lady Stowell, rather elegantly hopped out of this group of amendments; perhaps she saw what was coming.

How that made me feel is perhaps best summed up by what the noble Earl, Lord Howe, said earlier when he was justifying the business for tomorrow. He said that adjournments were never satisfactory. In that spirit, I wrote to the Leader of the House, expressing the grumbles I made in my opening remarks. He has written back in a very constructive and thoughtful way. I will not delay the Committee any longer, other than to say that I hope the Leader of the House would agree to make his reply available for other Members to read. It says some interesting things about how we manage business. It sounds like a small matter but if what happened on Tuesday had happened in other circumstances in the other place, business would probably have been delayed for at least an hour while the usual suspects picked holes in it. If the usual channels would look at this, we could avoid some car crashes in future.

I am pleased that this group of amendments has elicited such an interesting debate, with fire coming from all sides. In introducing the debate, I said that probably the only real advice I could give the Committee came from my experience of being on the pre-legislative scrutiny committee in 2003. That showed just how little we were prepared for the tsunami of new technology that was about to engulf us. My one pleasure was that we were part of forming Ofcom. I am pleased that the chairman of Ofcom, the noble Lord, Lord Grade, has assiduously sat through our debates. I suspect he is thinking that he had better hire some more lawyers.

We are trying to get this right. I have no doubt that all sides of the House want to get this legislation through in good shape and for it to play an important role. I am sure that the noble Lord, Lord Grade, never imagined that he would become a state regulator in the kind of ominous way in which the noble Baroness, Lady Fox, said it. Ofcom has done a good job and will do so in future.

There is a problem of getting definitions right. When I was at the Ministry of Justice, I once had to entertain a very distinguished American lawyer. As I usually did, I explained that I was not a lawyer. He looked at me and said, “Then I will speak very slowly”. There is a danger, particularly in this part of the Bill, of wandering into a kind of lawyer-fest. It is important that we are precise about what powers we are giving to whom. Just to chill the Minister’s soul, I remember being warned as well about Pepper v Hart. What he says at the Dispatch Box will be used to interpret what Parliament meant when it gave this or that power.

The debate we have had thus far has been fully justified in sending a few warning signals to the Minister that it is perhaps not quite right yet. It needs further work. There is a lot of good will on all sides of the House to get it right. For the moment, I beg leave to withdraw my amendment.

Amendment 33B withdrawn.

Clause 12: User empowerment duties

Amendment 34

Moved by

[Baroness Morgan of Cotes]

34: Clause 12, page 12, line 9, leave out “if they wish to increase their control over” and insert “to control”
Member’s explanatory statement
This amendment, and another in the name of Baroness Morgan, would require Category 1 providers to ensure that the default options are the safest for users in regard to suicide, self-harm, eating disorders and the abuse and hate content already determined to be harmful as part of the Government’s “triple shield” approach.

[Baroness Morgan of Cotes (Con)]

My Lords, it is a great pleasure to speak to this group of amendments. As it is the first time I have spoken at this stage of the Bill’s proceedings, I declare my interest as a trustee and founder of the mental health charity the Loughborough Wellbeing Centre, which is relevant to this group. If it is lawyers’ confession time, then I am also going to confess to being a non-practising solicitor. But I can assure those Members of the House who are not lawyers that they do not need to be lawyers or ex-lawyers to understand the very simple proposition at the heart of this group of amendments.

Amendments 34 and 35 are in my name, along with those of the noble Baroness, Lady Parminter, the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Griffiths of Burry Port. I am very grateful to them for their support for these amendments, which are also supported by the Football Association, Kick It Out, Beat, YoungMinds, the Royal College of Psychiatrists, the British Psychological Society, Mind, the Mental Health Network, the NHS Confederation, Rethink Mental Illness and Mental Health UK. I thank particularly the Mental Health Foundation for its support with making the points that we will cover in this group.

As we have already heard, and rightly, it is difficult with a Bill of this complexity to debate just one topic in a particular group. Although I have not spoken, it has been a great privilege to listen to your Lordships on earlier groups. We have already talked this afternoon and previously about the Government’s triple-shield approach and the replacement of that for the “legal but harmful” provisions that were taken out of the Bill. We have heard that the triple shield consists of the removal of illegal content, the takedown of material in breach of own terms of service—we have just been talking about that—and the provision to adults of greater choice over the content that they see online using these platforms. What we are talking about in this group of amendments is that third leg—I had put “limb” but have changed it because of what my noble friend Lady Fraser said—of the triple-shield categories, so that user empowerment tools should be on by default.

The change suggested by this proposal would require users on these platforms to flip a switch and choose whether to opt in to some of the most dangerous content available online, rather than receiving it by default. This adopts the Government’s existing approach of giving users choice over what they see but ensures that the default is that they will not be served this kind of material unless they actively choose to see it. The new offence on encouragement to serious self-harm, which the Government have committed to introducing, might form part of the solution here. But we cannot criminalise all the legal content that treads the line between glorification and outright encouragement, and no similar power is proposed to address eating disorder content. I know that others will talk about that, and I pay tribute to the work of Vicky Ford MP in relation to eating disorders; she has been brave enough to share her own experiences of those disorders.

During the Bill’s journey through Parliament, we have heard how vulnerable users often internalise the harmful and hateful content that they see online, which in turn can lead to users deliberately seeking out harmful content in an attempt to normalise self-destructive thoughts and behaviours. We have heard how Molly Russell, for example, viewed tweets which normalised her thoughts on self-harm and suicide; we have also heard how people with eating disorders often get what is called “inspiration” on platforms such as Tumblr, Instagram and TikTok.

We know from various studies that viewing this content has a negative effect on people’s mental well-being. A study carried out by the University of Oxford found that viewing images of self-harm often encouraged individuals to start self-harming, and concluded:

“Young people who self-harm are likely to use the internet in ways that increases their risk”.


Research by the Samaritans provided similar results, with 77% of respondents answering that they sometimes or often self-harmed in the same or similar ways after viewing self-harm imagery.

16:45

The Mental Health Foundation polled over 3,300 people and found that 67% of the public agreed or strongly agreed that they do not wish to be exposed to harmful content unless they explicitly choose to see it. I think my noble friend the Minister, perhaps not referring to this research, also said this earlier.

As we have also heard from the noble Baroness, Lady Merron, who is not in her place, even if a user is not searching for harmful content, they can be led to it through the algorithms. This includes pro-suicide, pro-self-harm, pro-anorexia and pro-bulimia content. In other words, it is too easy for users to see harmful content on these platforms, and this needs to change.

The Government chose to change from the legal but harmful to the triple-shield approach. However, the user empowerment tools introduced are neither new nor ground-breaking, because a lot of social media platforms already claim to have filters in place, giving users the ability to hide certain content from their timelines. But many users do not know that they are there, or how to use them properly. As it stands, the Government’s solution will be largely ineffective unless these tools are on by default.

Another point I suspect others will make, which we heard in the briefings before this group, is that vulnerability does not stop at the age of 18, so why would there be a cliff edge where there is protection from known harmful content for those under 18 but not for those over 18? As somebody made clear in the Samaritans briefing, which a number of us attended, people can be sectioned for their own protection after the age of 18. Adults, and particularly the vulnerable, may not be in a position to self-protect, and the trouble with not having the tools on by default is that we are yet again putting the burden to self-protect on the vulnerable and potential victims without taking responsibility as a society for this.

There is of course a wider point here—perhaps not for this debate but I am sure it will come up again—which is that not seeing the content does not mean that it does not exist. We will return to this when we debate content that is violent against women and girls. The noble Baroness, Lady Fox, has already referred to the content set out in subsections (10), (11) and (12) of this clause. Does the fact that it is listed mean we are saying that such harmful content is still OK to circulate on the internet, just because people are not seeing it? I would say this raises broader questions, but it is perhaps not a debate for today.

These two amendments would ensure that platforms’ design involves the safest options being on by default. They are two straightforward, common-sense amendments that, as the noble Viscount, Lord Colville—who is not here now—said, balance the understandable concerns about freedom of speech with safety. They do not stop the publication of this objectionable material, but they offer others, particularly the most vulnerable, a real choice about whether they see it. I would argue that it is our minimum duty to make sure these safety protections are on by default. I beg to move.

[Lord Griffiths of Burry Port (Lab)]

My Lords, it is a pleasure to be collaborating with the noble Baroness, Lady Morgan. We seem to have been briefed by the same people, been to the same meetings and drawn the same conclusions. However, there are some things that are worth saying twice and, although I will try to avoid a carbon copy of what the noble Baroness said, I hope the central points will make themselves.

The internet simply must be made to work for its users above all else—that is the thrust of the two amendments that stand in our names. Through education and communication, the internet can be a powerful means of improving our lives, but it must always be a safe platform on which to enjoy a basic right. It cannot be said often enough that to protect users online is to protect them offline. To create a strict division between the virtual and the public realms is to risk ignoring how actions online can have life and death repercussions, and that is at the heart of what these amendments seek to bring to our attention.

I was first made aware of these amendments at a briefing from the Samaritans, where we got to know each other. There I heard the tragic accounts of those whose loved ones had taken their own lives due to exposure to harmful content online. I will not repeat their accounts—this is not the place to do that—but understanding only a modicum of their grief made it obvious to me that the principle of “safest option by default” must underline all our decision-making on this.

I applaud the work already done by Members of this House to ensure the safety of young people online. Yet it is vital, as the noble Baroness has said, that we do not create a drop-off point for future users—one in which turning 18 means sudden exposure to the most harmful content lurking online, as it is always there. Those most at risk of suicide due to exposure to harmful content are aged between their late teens and early 20s. In fact, a 2017 inquiry into the suicides of young people found harmful content accessed online in 26% of the deaths of under 20s and 13% of the deaths of 20 to 24 year-olds. It is vital for us to empower users from their earliest years.

In the Select Committee—I see fellow members sitting here today—we have been looking at digital exclusion and the need for education at all levels for those using the internet. Looking for good habits established in the earliest years is the right way to start, but it goes on after that, because the world that young people go on to inhabit in adulthood is one where they are already in control of the internet—if they had the education earlier. Adulthood comes with the freedom to choose how one expresses oneself online—of course it does—but this must not be at the cost of their continuing freedom from the most insidious content that puts their mental health at risk. Much mention has been made of the triple shield and I need not go there again. Its origins and perhaps deficiencies have been mentioned already.

The Center for Countering Digital Hate recently conducted an experiment, creating new social media accounts that showed interest in body image and mental health. This study found that TikTok served suicide-related content to new accounts within 2.6 minutes, with eating disorder content being recommended within 8 minutes. At the very least, these disturbing statistics tell us that users should have the option to opt in to such content, and not have to suffer this harm before later opting out. While the option to filter out certain categories of content is essential, it must be toggled on by default if safety is to be our primary concern.

The principle of safest by default creates not only a less harmful environment, but one in which users are in a position to define their own online experience. The space in which we carry out our public life is increasingly located on a small number of social media platforms—those category 1 platforms already mentioned several times—which everyone, from children to pensioners, uses to communicate and share their experiences.

We must then ensure that the protections we benefit from offline continue online: namely, protection from the harm and hate that pose a threat to our physical and mental well-being. When a child steps into school or a parent into their place of work, they must be confident that those with the power to do so have created the safest possible environment for them to carry out their interactions. This basic confidence must be maintained when we log in to Twitter, Instagram, TikTok or any other social media giant.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, my Amendment 43 tackles Clause 12(1), which expressly says that the duties in Clause 12 are to “empower” users. My concern is to ensure that, first, users are empowered and, secondly, legitimate criticism around the characteristics listed in Clause 12(11) and (12), for example, is not automatically treated as abusive or inciting hatred, as I fear it could be. My Amendment 283ZA specifies that, in judging content that is to be filtered out after a user has chosen to switch on various filters, the providers act reasonably and pause to consider whether they have “reasonable grounds” to believe that the content is of the kind in question—namely, abusive or problematic.

Anything under the title “empower adult users” sounds appealing—how can I oppose that? After all, I am a fan of the “taking back control” form of politics, and here is surely a way for users to be in control. On paper, replacing the “legal but harmful” clause with giving adults the opportunity to engage with controversial content if they wish, through enhanced empowerment tools, sounds positive. In an earlier discussion of the Bill, the noble Baroness, Lady Featherstone, said that we should treat adults as adults, allowing them to confront ideas with the

“better ethics, reason and evidence”—[Official Report, 1/2/23; col. 735.]

that has been the most effective way to deal with ideas from Socrates onwards. I say, “Hear, hear” to that. However, I worry that, rather than users being in control, there is a danger that the filter system might infantilise adult users and disempower them by hard-wiring into the Bill a duty and tendency to hide content from users.

There is a general weakness in the Bill. I have noted that some platforms are based on users moderating their own sites, which I am quite keen on, but this will be detrimentally affected by the Bill. It would leave users in charge of their own moderation, with no powers to decide what is in, for example, Wikipedia or other Wikimedia projects, which are added to, organised and edited by a decentralised community of users. So I will certainly not take the phrase “user empowerment” at face value.

I am slightly concerned about linguistic double-speak, or at least confusion. The whole Bill is being brought forward in a climate in which language is weaponised in a toxic minefield—a climate of, “You can’t say that”. More nerve-rackingly, words and ideas are seen as dangerous and interchangeable with violent acts, in a way that needs to be unpicked before we pass this legislation. Speakers can be cancelled for words deemed to threaten listeners’ safety—but not physical safety; the opinions are said to be unsafe. Opinions are treated as though they cause damage or harm as viscerally as physical aggression. So lawmakers have to recognise the cultural context and realise that the law will be understood and applied in it, not in the abstract.

I am afraid that the language in Clause 12(1) and (2) shows no awareness of this wider backdrop—it is worryingly woolly and vague. The noble Baroness, Lady Morgan, talked about dangerous content, and all the time we have to ask, “Who will interpret what is dangerous? What do we mean by ‘dangerous’ or ‘harmful’?”. Surely a term such as “abusive”, which is used in the legislation, is open to wide interpretation. Dictionary definitions of “abusive” include words such as “rude”, “insulting” and “offensive”, and it is certainly subjective. We have to query what we mean by the terms when some commentators complain that they have been victims of online abuse, but when you check their timelines you notice that, actually, they have been subject just to angry, and sometimes justified, criticism.

I recently saw a whole thread arguing that the Labour Party’s recent attack ads against the Prime Minister were an example of abusive hate speech. I am not making a point about this; I am asking who gets to decide. If this is the threshold for filtering content, there is a danger of institutionalising safe space echo chambers. It can also be a confusing word for users, because if someone applies a user empowerment tool to protect themselves from abuse, the threshold at which the filter operates could be much lower than they intend or envisage but, by definition, the user would not know what had been filtered out in their name, and they have no control over the filtering because they never see the filtered content.

17:00

The same is true of the Bill’s use of the term “incites hatred”. The word “hatred” in 2023 is highly contentious in the public arena. Indeed, over the last decade Parliament has wrestled with criminal offences around the incitement of hatred, and safeguards were built into legislation in the past, including free speech clauses in controversial areas such as religion. However, it seems to me that in this Bill the word “hatred” is just free floating. A user who understands “incites hatred” to cover really malicious, nasty content might not realise how much other content could be filtered out by the filtering tool if it operates at a low threshold of understanding what inciting hatred is.

It is also the case that inciting hatred around protected characteristics is fraught as an issue offline, let alone online. There are huge rows about whether accusations of Islamophobia and inciting hatred of Muslims are sometimes used to avoid open debates on extreme Islamist views. For example, will images such as the cartoons in the Charlie Hebdo magazine be seen as inciting hatred by some, and will they get filtered out? Similarly, some say that accusations of anti-Semitism—inciting hatred of Jewish people—are used to quell legitimate criticism of Israeli policy. I could go on.

I am not making a comment on any of those issues, other than to note that those who think that using hatred as a basis for filtering online content is easy need to get out a bit more—and that is before we even get to the gender wars. Regularly, those who assert the immutability of biological sex are accused of whipping up hatred against trans people; Joanna Cherry MP has had a talk cancelled by the Stand Comedy Club for just that. Even though the label “transphobic hate speech” directed at Joanna Cherry MP is totally illegitimate, in my opinion, because she is a crusader for women’s rights and lesbian rights, it does not matter whether you and I agree or whether we should have an argument; that is what debate is. We have to ask who from a big tech company will filter out material or decide what is, or is not, hatred. These are the kinds of issues that, we have to note, are difficult.

It is worth asking the Minister: who do the Government envisage will do the filtering? Do online filterers, let alone algorithms or machine learning, have the qualifications to establish what constitutes abuse or hatred? In other professions, from the College of Policing to overzealous HR departments and senior management teams in universities, we have seen overcaution in censoring and banning material under the auspices of hatred, abuse and that weasel word “harm”. Rather than empowering users, will the Bill not empower a new staff team of filterers trained in their own company’s equality, diversity and inclusion norms to use filtering tools at the lowest common denominator, leading to over-removal policies that err on the side of caution in order to comply with regulations? All that Amendment 43 does is to borrow the language of “discussion or criticism” from the free speech clause in the stirring up hatred offences section of the Public Order Act 1986 to try to lift the threshold at which Clause 12(11) and (12) might kick in. It is not ideal, but there is a lot at stake.

I completely oppose those amendments that promote a default setting. They are clearly advocating a censorious approach to legal speech. I rather liked an analogy that I heard the IEA’s Matthew Lesh use recently when he said, “Imagine if, when you go to a bookshop, you have to ask the shop assistant to let you into the special room that contains harmful books”. Of course, material is still accessible, but creating a barrier to accessing certain speech that is perhaps uncomfortable in terms of religion, race or gender also forces people to identify themselves. If you have to say, “Please can I go into the harmful speech section?”, or go into the harmful section of the bookshop, immediately you label yourself as pro-dangerous or pro-harmful material.

If those advocating these provisions are so certain about the righteousness of knowing that this speech is problematic, it would be more honest to simply outlaw it. What is more, the director of Defend Digital Me, Jen Persson, has raised concern that, by considering all adults to be at risk of harm in that way, the Bill will infantilise us, because it assumes that adults are inherently vulnerable. It is a sort of paternalistic Big Brother that we want to avoid in the Bill.

Finally, it is damaging in a democracy to have a proliferation of things that are unsayable. As the Bill reflects, so much debate takes place online, so it seems our responsibility as legislators to encourage a diversity of views to circulate, rather than carelessly or inadvertently to narrow the range of what circulates. On previous groups we mentioned Germany’s infamous legislation, brought in in 2017, which is now facing major opposition at home. Danish free-speech think tank Justitia notes that though

“the German government’s adoption of the NetzDG was a good faith initiative to curb hate online, the law has provided a blueprint for Internet censorship that is being used to target dissent and pluralism.”

I fear that unless we are very careful this section will do the same.

[Baroness Parminter (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Fox. I am afraid that on this issue, as I am sure she would expect, we profoundly disagree. I am delighted to support the amendment of the noble Baroness, Lady Morgan, and those from my noble friend Lord Clement-Jones, which do the same sort of thing and address the critical issue of what is a proportionate response, respecting the fact that the position for adults is different from that for children. What is a proportionate response, recognising that there is a large cadre of vulnerable people who need help to manage the beneficial but also worrying tool which is social media?

I shall cover only the issues on which I have any degree of competence in this complex field, which is to speak about the importance of this amendment because of the particular nature of eating disorders. I declare an interest as the mother of a young adult who has eating disorders and had them when she was a child. The noble Baroness, Lady Fox, talked about the need to allow adults to use their reason. Let me tell the Committee about people with eating disorders: I would love it if I could get my daughter to be as reasonable as she is when I talk to her about the benefits of proportional representation, where she can beat me hands down, when I try but fail to get her to put food in her mouth.

Eating disorders have two issues of relevance to this debate, and they are why I support the case for the strongest protection for them, the default being that people should have to opt in to have access to harmful content. First, eating disorders are intensely controlling. They suck people in, and they are not just about not eating; they control how they exercise; they control who they see; they are a control mechanism over a person’s whole life. I reject the idea that you can get someone who is controlled, day and night, by an eating disorder to make the decision to opt out of accessing social media content, when we know that people with eating disorders gravitate towards it because it provides them with content that sustains their illness. It provides them with communities of other users— the pro-mia and pro-ana sites, which sound incredibly comforting but are actually communities of people that encourage people, sometimes literally, to starve themselves to death. That controlling nature means that, for me, people having to opt in is the best way forward: it is a controlling illness.

Secondly, eating disorders are a very competitive illness. If you have anorexia, you want to be the thinnest. In the old days, that meant that you would cook food that you would not eat, but you would get your sister to eat it and you would feel good because you were thinner. Of course, with social media, you can now access all these websites where you can see people with nasogastric tubes and see people who are doing much “better”. As the noble Baroness, Lady Morgan, said, in that dreadful phrase, they provide “thinspiration”: people look for thinness and compare themselves to other people. It is an insatiable desire, so the idea that they will voluntarily opt out of that is just away with the fairies.

As I say, we need a proportionate response. I appreciate that people with eating disorders may well choose to opt in, but I think that the state in the first place should require that people have to opt into that choice. We have heard about the various mental health organisations that have made that case, but in thinking about this and talking to Rose about it, I think there is another fundamental reason why it is right that the state should take this approach. As the noble Baroness, Lady Morgan, said, eating disorders can start at a young age, but they can also start after the age of 18. If someone in their mid-20s—or mid-30s or mid-40s—is starting to feel a bit uncomfortable about their body image and starting to get some rather odd views about food but does not yet have an eating disorder, that is the time when, if they get support and do not get encouragement, we might be able to stop them getting sucked into these appalling vortexes of eating disorders. If we have this provision that people have to opt in, they might not see that content which, as has been mentioned, is being pushed at them—the right reverend Prelate the Bishop of Oxford gave examples the other week of how these sites feed you stuff immediately as soon as you start going down this route. If people have to opt in, we might just have that chance of stopping them getting an eating disorder.

Yes, people have to be given access to some of this material in a free society, but it is the role of the state to protect the vulnerable, and the particular nature of eating disorders means that, for me, this amendment is vital.

[The Lord Bishop of Oxford]

My Lords, it is a privilege to follow the noble Baroness, Lady Parminter, in her very moving and personal speech. I am sorry that I was unable to speak to the previous group of amendments, some of which were in my name, because, due to unavoidable business in my diocese, I was not able to be present when that debate began late last Tuesday. However, it is very good to be able to support this group of amendments, and I hope tangentially to say something also in favour of risk assessment, although I am conscious that other noble Lords have ably made many of the points that I was going to make.

My right reverend friend the Bishop of Gloucester has added her name in support of amendments in this group, and I also associate myself with them—she is not able to be here today. As has been said, we are all aware that reaching the threshold of 18 does not somehow award you with exponentially different discernment capabilities, nor wrap those more vulnerable teenagers in some impermeable cotton wool to protect them from harm.

We are united, I think, in wanting to do all we can to make the online space feel safe and be safe for all. However, there is increasing evidence that people do not believe that it is. The DCMS’s own Public Attitudes to Digital Regulation survey is concerning. The most recent data shows that the number of UK adults who do not feel safe and secure online increased from 38% in November/December 2021 to 45% in June/July 2022. If that trend increases, the number will soon pass half, with more than half of UK adults not feeling safe and secure online.

It is vital that we protect society’s most vulnerable. When people are vulnerable through mental illness or other challenges, they are surely not able to protect themselves from being exposed to damaging online content by making safe choices, as we have just heard. In making this an opt-in system, we would save lives when people are at a point of crisis.

17:15

In listening to our debates, I sometimes feel that we have not grasped in our deliberations as a Committee the inequality of arms which exists in an individual faced with the entire internet. We have heard analogies this afternoon of a bookshop, and we might think of a supermarket. We might also think of a debate in the Athenian Agora many years ago, when people debated person to person, with an equality of arms and intellect. There is no such equality of arms when it comes to exposure to the internet and social media. I will categorise five things which break this equality down—they all begin with “A”, if your Lordships like alliteration.

The first is advertising. The whole expertise of the advertising industry, commercially driven through applications, places its weight on the individual. The accumulated skill of how to sell more to more people is focused and channelled through all the social media we are concerned with regulating.

The second is access. Through the mobile phone in the 19 year-old’s pocket, and in mine, social media and app producers have access 24/7, in the most private and intimate moments of our lives, to influence and shape our minds. There is no physical boundary of going to a bookshop; it is present wherever we are.

The third “A” is access to our data. The people who are pushing things at us know more about us than the closest members of our families, because they study every purchase. Every click is interpreted. Every inquiry that we search is channelled back into access to our data and used to pressure the individual and to shape their choices in the offline world as well as the online one.

Fourthly, all this information and skill is then channelled algorithmically and driven by the power of algorithms. It is multiplied, and multiplied again, in ways that no consumer fully understands or can measure.

Fifthly, we are now on the threshold of much of the content to which we and others are exposed being energised and powered by artificial intelligence, so that the problems we have seen to date are multiplying and will be multiplied hugely in the coming decade.

I believe that people will look back on the first two decades of the 21st century—the time that the noble Lord, Lord McNally, referred to, from 2003, when we did not envisage what was coming, to this Bill in 2023—as a time of complete madness. They will see it as a time when we created such harmful, toxic environments—not only for children and young people but for adults—that it affected the mental health of a generation profoundly. This Bill is an opportunity to draw a line in the sand and to remedy that. The user empowerment tools and adult risk assessments offer us very important tools. We must take this opportunity and fight back against this inequality of arms. I support these amendments.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I contribute to this debate on the basis of my interests as laid out in the register: as chief executive of Cerebral Palsy Scotland; my work with the Scottish Government on people with neurological conditions; and as a trustee of the Neurological Alliance of Scotland. It is an honour to follow the right reverend Prelate, whose point about the inequality people experience in the online world is well made. I want to be clear that when I talk about ensuring online protection for people with disabilities, I do not assume that all adults with disabilities are unable to protect themselves. As the right reverend Prelate and the noble Lord, Lord Griffiths of Burry Port, pointed out, survey after survey demonstrates how offline vulnerabilities translate into the online world, and Ofcom’s own evidence suggests that people with physical disabilities, learning disabilities, autism, mental health issues and others can be classed as being especially vulnerable online.

The Government recognise that vulnerable groups are at greater risk online, because in its previous incarnations, this Bill included greater protection for such groups. We spoke in a previous debate about the removal of the “legal but harmful” provisions and the imposition of the triple shield. The question remains from that debate: does the triple shield provide sufficient protection for these vulnerable groups?

As I have said previously this afternoon, user empowerment tools are the third leg of the triple shield, but they put all the onus on users and no responsibility on the platforms to prevent individuals’ exposure to harm. Amendments 36, 37 and 38A, in the name of the noble Lord, Lord Clement-Jones, seek simply to make the default setting for the proposed user empowerment tools to be “on”. I do not pretend to understand how, technically, this will happen, but it clearly can, because the Bill requires platforms to ensure that this is the default position to ensure protection for children. The default position in those amendments protects all vulnerable people, and that is why I support them—unlike, I fear, Amendment 34 from my noble friend Lady Morgan, which lists specific categories of vulnerable adults. I would prefer that all vulnerable people be protected from being exposed to harm in the first place.

Nobody’s freedom of expression is affected in any way by this default setting, but the overall impact on vulnerable individuals in the online environment would, I assure your Lordships, be significant. Nobody’s ability to explore the internet or to go into those strange rooms at the back of bookshops that the noble Baroness, Lady Fox, was talking about would be curtailed. The Government have already stated that individuals will have the capacity to seek out these tools and turn them on and off, and that they must be easily accessible. So individuals with capacity will be able to find the settings and set them to explore whatever legal content they choose.

However, is it not our duty to remember those who do not have capacity? What about adults with learning difficulties and people at a point of crisis—the noble Baroness, Lady Parminter, movingly spoke about people with eating disorders—who might not be able to turn to those tools due to their affected mental state, or who may not realise that what they are seeing is intended to manipulate? Protecting those users from encountering such content in the first place surely tips the balance in favour of turning the tools on by default.

I am very sad that the noble Baroness, Lady Campbell of Surbiton, cannot be here, because her contribution to this debate would be powerful. But, from her enormous experience of work with disabled people, this is her top priority for the Bill.

In preparing to speak to these amendments, I looked back to the inquiry in the other place into online abuse and the experience of disabled people that was prompted by Katie Price’s petition after the shocking abuse directed at her disabled son Harvey. In April 2019 the Government responded to that inquiry by saying that they were

“aware of the disproportionate abuse experienced by disabled people online and the damage such abuse can have on people’s lives, career and health”—

and the Government pledged to act.

The internet is a really important place for disabled people, and I urge the Government to ensure that it remains a safe place for all of us and to accept these amendments that would ensure the default settings are set to on.

[Baroness Kidron (CB)]

My Lords, I rise to support the amendments in the name of the noble Baroness, Lady Morgan. I do so somewhat reluctantly, not because I disagree with anything that she said but because I would not necessarily start from here. I want to briefly say three very quick things about that and then move on to Amendments 42 and 45, which are also in this group.

We already have default settings, and we are pretending that this is a zero-sum game. The default settings at the moment are profiling us, filtering us and rewarding us; and, as the right reverend Prelate said in his immensely powerful speech, we are not starting at zero. So I do share the concerns of the noble Baroness, Lady Fox, about who gets to choose—some of us on this side of the debate are saying, “Can we define who gets to choose? Can Parliament choose? Can Ofcom choose? Can we not leave this in the hands of tech companies?” So on that I fully agree. But we do have default settings already, and this is a question of looking at some of the features as well as the content. It is a weakness of the Government’s argument that it keeps coming back to the content rather than the features, which are the main driver of what we see.

The second thing I want to say—this is where I am anxious about the triple shield—is: does not knowing you are being abused mean that you are not abused? I say that as someone with some considerable personal abuse. I have my filter on and I am not on social media, but my children, my colleagues and some of the people I work with around the world do see what is said about me—it is a reputational thing, and for some of them it is a hurtful thing, and that is why I am reluctant in my support. However, I do agree with all the speakers who have said that our duty is to start with those people who are most vulnerable.

I want to mention the words of one of the 5Rights advisers—a 17 year-old girl—who, when invited to identify changes and redesign the internet, said, “Couldn’t we do all the kind things first and gradually get to the horrible ones?” I think that this could be a model for us in this Chamber. So, I do support the noble Baroness.

I want to move briefly to Amendment 42, which would see an arbitrary list of protected characteristics replaced by the Equality Act 2010. This has a lot to do with a previous discussion we had about human rights, and I want to say urgently to the Minister that the offer of the Online Safety Bill is not to downgrade human rights, children’s rights and UK law, but rather to bring forward a smart and comprehensive regime to hold companies accountable for human rights, children’s rights and UK law. We do not want to have a little list of some of our children’s rights or of some of our legislation; we would like our legislation and our rights embedded in the Bill.

I have to speak for Amendment 45. I express my gratitude to the noble Lord, Lord Stevenson, for tabling it. It would require Ofcom, six months after the event, to ask whether children need these user empowerment tools. It is hugely important. I remind the Committee that children have not only rights but an evolving capacity to be out there in the world. As I said earlier, the children’s safety duties have a cliff-edge feel to them. As children go out into the world on the cusp of adulthood, maybe they would like to have some of these user empowerment tools.

17:30

[Baroness Buscombe (Con)]

My Lords, the noble Baroness, Lady Kidron, said words to the effect that perhaps we should begin by having particular regard for certain vulnerabilities, but we are dealing with primary legislation and this really concerns me. Lists such as in Clause 12 are really dangerous. It is not a great way to write law. We could be with this law for a long time.

I took the Communications Act 2003 through for Her Majesty’s Opposition, and we were doing our absolute best to future-proof the legislation. There was no mention of the internet in that piece of legislation. With great respect to the noble Lord, Lord McNally, with whom I sparred in those days, in was not that Act that introduced Ofcom but a separate Act. The internet was not even mentioned until the late Earl of Northesk introduced an amendment with the word “internet” to talk about the investigative powers Act.

The reality is that we already had Facebook, and tremendous damage being done through it to people such as my daughter. Noble Lords will remember that in the early days it was Oxford, Cambridge, Yale and Harvard; that is how it all began. It was an amazing thing, and we could not foresee what would happen but there was a real attempt to future-proof. If you start having lists such as in Clause 12, you cannot just add on or change. Cultural mores change. This list, which looks great in 2023, might look really odd in about 2027. Different groups will have emerged and say, “Well, what about me, what about me?”.

I entirely agree with the noble Baroness, Lady Fox. Who will be the decider of what is right, what is rude or what is abusive? I have real concerns with this. The Government have had several years to get this right. I say that with great respect to my noble friend the Minister, but we will have to think about these issues a little further. The design of the technology around all this is what we should be imposing on the tech companies. I was on the Communications and Digital Committee in 2020 when that was a key plank of our report, following the inquiry that we carried out and prior to the Joint Committee, then looking at this issue of “legal but harmful”, et cetera. I am glad that was dropped because—I know that I should not say this—when I asked a civil servant what was meant by “harmful”, he said, “Well, it might upset people”.

It is a very subjective thing. This is difficult for the Government. We must do all we can to support the Government in trying to find the right solutions, but I am sorry to say that I am a lawyer—a barrister—and I worry. We are trying to make things right but, remember, once it is there in an Act, it is there. People will use that as a tool. In 2002, at New Scotland Yard, I was introduced to an incredible website about 65 ways to become a good paedophile. Where does that fit in Clause 12? I have not quite worked that out. Is it sex? What is it? We have to be really careful. I would prefer having no list and making it more general, relying on the system to allow us to opt in.

I support my noble friend Lady Morgan’s amendment on this, which would make it easier for people to say, “Well, that’s fine”, but would not exclude people. What happens if you do not fit within Clause 12? Do you then just have to suck it up? That is not a very House of Lords expression, but I am sure that noble Lords will relate to it.

We have to go with care. I will say a little more on the next group of amendments, on anonymity. It is really hard, but what the Government are proposing is not quite there yet.

[Baroness Kidron (CB)]

That seemed to be provoked by me saying that we must look after the vulnerable, but I am suggesting that we use UK law and the rights that are already established. Is that not better than having a small list of individual items?

[Baroness Buscombe (Con)]

I agree. The small list of individual items is the danger.

[Baroness Bull (CB)]

My Lords, I support the noble Baroness, Lady Buscombe, on the built-in obsolescence of any list. It would very soon be out of date.

I support the amendments tabled by the noble Lord, Lord Clement-Jones, and by the noble Baroness, Lady Morgan of Cotes. They effectively seek a similar aim. Like the noble Baroness, Lady Fraser, I tend towards those tabled by the noble Lord, Lord Clement-Jones, because they seem clearer and more inclusive, but I understand that they are trying for the same thing. I also register the support for this aim of my noble friend Lady Campbell of Surbiton, who cannot be here but whom I suspect is listening in. She was very keen that her support for this aim was recorded.

The issue of “on by default” inevitably came up at Second Reading. Then and in subsequent discussions, the Minister reiterated that a “default on” approach to user empowerment tools would negatively impact people’s use of these services. Speaking at your Lordships’ Communications and Digital Committee, on which I sat at the time, Minister Scully went further, saying that the strongest option, of having the settings off in the first instance,

“would be an automatic shield against people’s ability to explore what they want to explore on the internet”.

According to the Government’s own list, this was arguing for the ability to explore content that abuses, targets or incites hatred against people with protected characteristics, including race and disability. I struggle to understand why protecting this right takes precedence over ensuring that groups of people with protected characteristics are, well, protected. That is our responsibility. It is precedence, because switching controls one way is not exactly the same as switching them the other way. It is easy to think so, but the noble Baroness, Lady Parminter, explained very clearly that it is not the same. It is undoubtedly easier for someone in good health and without mental or physical disabilities to switch controls off than it is for those with disabilities or vulnerabilities to switch them on. That is self-evident.

It cannot be right that those most at risk of being targeted online, including some disabled people—not all, as we have heard—and those with other protected characteristics, will have the onus on them to switch on the tools to prevent them seeing and experiencing harm. There is a real risk that those who are meant to benefit from user empowerment tools, those groups at higher risk of online harm, including people with a learning disability, will not be able to access the tools because the duties allow category 1 services to design their own user empowerment tools. This means that we are likely to see as many versions of user empowerment tools as there are category 1 services to which this duty applies.

Given what we know about the nature of addiction and self-harm, which has already been very eloquently explained, it surely cannot be the intention of the Bill that those people who are in crisis and vulnerable to eating disorders or self-harm, for example, will be required to seek and activate a set of tools to turn off the very material that feeds their addiction or encourages their appetite for self-harm.

The approach in the Bill does little to prevent people spiralling down this rabbit hole towards ever more harmful content. Indeed, instead it requires people to know that they are approaching a crisis point, and to have sufficient levels of resilience and rationality to locate the switch and turn on the tools that will protect them. That is not how the irrational or distressed mind works.

So, all the evidence that we have about the existence of harm which arises from mental states, which has been so eloquently set out in introducing the amendments— I refer again to my noble friend Lady Parminter, because that is such powerful evidence—tips the balance in favour, I believe, of setting the tools to be on by default. I very much hope the Minister will listen and heed the arguments we have heard set out by noble Lords across the Committee, and come back with some of his own amendments on Report.

[Baroness Fox of Buckley (Non-Afl)]

Before the noble Baroness sits down, I wanted to ask for clarification, because I am genuinely confused. When it comes to political rights for adults in terms of their agency, they are rights which we assume are able to be implemented by everyone. But we recognise that in the adult community —this is offline now; I mean in terms of how we understand political rights—there may well be people who lack capacity or are vulnerable, and we take that into account. But we do not generally organise political rights and access to, for example, voting or free speech around the most vulnerable in society. That is not because we are insensitive or inhumane, or do not understand. The moving testimonies we have heard about people with eating disorders and so on are absolutely spot-on accurate. But are we suggesting that the world online should be organised around vulnerable adults, rather than adults and their political rights?

[Baroness Bull (CB)]

I do not have all the answers, but I do think we heard a very powerful point from the right reverend Prelate. In doing the same for everybody, we do not ensure equality. We need to have varying approaches, in order that everybody has equality of access. As the Bill stands, it says nothing about vulnerable adults. It simply assumes that all adults have full capacity, and I think what these amendments seek to do is find a way to recognise that simply thinking about children, and then that everybody aged 18 is absolutely able to take care of themselves and, if I may say, “suck it up”, is not the world we live in. We can surely do better than that.

[Baroness Healy of Primrose Hill (Lab)]

My Lords, I rise briefly to support Amendments 34 and 35, from the noble Baroness, Lady Morgan, and others in this essential group. It is not enough to say the new triple shield will help prevent adults seeing harmful but legal material if they so wish. Having removed “harmful but legal” from the original Bill, there is now a need to ensure that the default options are the safest for users in regard to suicide, self-harm, eating disorders and abuse and hate content.

As the Bill stands, adults can still see the most dangerous content online. Young people over 18 may be especially vulnerable if faced with a torrent of images edited digitally to represent unattainable beauty standards; it can result in poor body image detrimental to mental health, resulting in shame, anxiety and, in some cases, suicide. As other noble Lords have said, anorexia has the highest mortality rate of any mental health problem. We know pro-anorexia sites are rife online. Vulnerable adults should be protected.

These amendments would make a real difference to the Bill. Changing the user empowerment provisions to require category 1 providers to have the safest options as the default for users would be a straightforward way of increasing the protection of most internet users who do not want to have this material bombard them. It would not overburden the tech companies and could do some good. It would not curtail freedom of speech, as tech-savvy users could easily flip a switch if they wished to opt in to some of the most dangerous content, which will still be available online, rather than receiving it by default.

Even with the Government’s best intentions to prevent encouragement of serious self-harm, we know they cannot criminalise all the legal content that treads the line between glorification and outright encouragement, as the noble Baroness, Lady Morgan, said. As the Communications and Digital Select Committee, on which I now serve, said in its 2021 report,

“the Online Safety Bill should require category 1 platforms to give users a comprehensive toolkit of settings, overseen by Ofcom, allowing users to decide what types of content they see and from whom. Platforms should be required to make these tools easy to find and use. The safest settings should always be the default”.

I hope the Government accept these valuable and simple amendments. They are supported by the Mental Health Foundation, to whom I owe thanks for this briefing, together with many other experts in the field of mental health.

17:45

[Baroness Burt of Solihull (LD)]

My Lords, this is my first contribution to the Bill, and I feel I need to apologise in advance for my lack of knowledge and expertise in this whole field. In her initial remarks, the noble Baroness, Lady Morgan of Cotes, was saying “Don’t worry, because you don’t need to be a lawyer”. Unfortunately, I do not have any expertise in the field of the internet and social media and all of that as well, so I will be very brief in all of my remarks on the Bill. But I feel that I cannot allow the Bill to go past without at least making a few remarks, as equalities spokesperson for the Lib Dems. The issues are of passionate importance to me, and of course to victims of online abuse, and it is those victims for whom I speak today.

In this group, I will address my remarks to Amendments 34 and 35, in which we have discussed content deemed to be harmful—suicide, self-harm, eating disorders and abuse and hate content—under the triple shield approach, although this content discussion has strayed somewhat during the course of the debate.

Much harmful material, as we have heard, initially comes to the user uninvited. I do not pretend to understand how these algorithms work, but my understanding is that if you open one, they literally click into action, increasing more and more of this kind of content being fed to you in your feed. The suicide of young Molly Russell is a typical example of the devastating consequences of how much damage these algorithms can contribute. I am glad that the Bill will go further to protect children, but it still leaves adults—some young and vulnerable—without some protection and with the same amount of automatic exposure to harmful content, which algorithms can increase with engagement, which could have overwhelming impacts on their mental health, as my noble friend Lady Parminter so movingly and eloquently described.

So this amendment means a user would have to make an active, conscious choice to be exposed to such content: an opt out rather than an opt in. This has been discussed at length by noble Lords a great deal more versed in the subject than me. But surely the only persons or organisations who would not support this would be the ones who do not have the best interests of the vulnerable users we have been talking about this afternoon at heart. I hope the Minister will confirm in his remarks that the Government do.

[Baroness Harding of Winscombe (Con)]

My Lords, I had not intended to speak in this debate because I now need to declare an unusual interest, in that Amendment 38A has been widely supported outside this Chamber by my husband, the Member of Parliament for Weston-super-Mare. I am not intending to speak on that amendment but, none the less, I mention it just in case.

I rise to speak because I have been so moved by the speeches, not least the right reverend Prelate’s speech. I would like just to briefly address the “default on” amendments and add my support. Like others, on balance I favour the amendments in the name of the noble Lord, Lord Clement-Jones, but would willingly throw my support behind my noble friend Lady Morgan were that the preferred choice in the Chamber.

I would like to simply add two additional reasons why I ask my noble friend the Minister to really reflect hard on this debate. The first is that children become teenagers, who become young adults, and it is a gradual transition—goodness, do I feel it as the mother of a 16 year-old and a 17 year-old. The idea that on one day all the protections just disappear completely and we require our 18 year-olds to immediately reconfigure their use of all digital tools just does not seem a sensible transition to adulthood to me, whereas the ability to switch off user empowerment tools as you mature as an adult seems a very sensible transition.

Secondly, I respect very much the free speech arguments that the noble Baroness, Lady Fox, made but I do not think this is a debate about the importance of free speech. It is actually about how effective the user empowerment tools are. If they are so hard for non-vulnerable adults to turn off, what hope have vulnerable adults to be able to turn them on? For the triple shield to work and the three-legged stool to be effective, the onus needs to be on the tech companies to make these user empowerment tools really easy to turn on and turn off. Then “default on” is not a restriction on freedom of speech at all; it is simply a means of protecting our most vulnerable.

[Lord Clement-Jones (LD)]

My Lords, this has been a very thoughtful and thought-provoking debate. I start very much from the point of view expressed by the noble Baroness, Lady Kidron, and this brings the noble Baroness, Lady Buscombe, into agreement—it is not about the content; this is about features. The noble Baroness, Lady Harding, made exactly the same point, as did the noble Baroness, Lady Healy—this is not about restriction on freedom of speech but about a design feature in the Bill which is of crucial importance.

When I was putting together the two amendments that I have tabled, I was very much taken by what Parent Zone said in a recent paper. It described user empowerment tools as “a false hope”, and rightly had a number of concerns about undue reliance on tools. It said:

“There is a real danger of users being overwhelmed and bewildered”.


It goes on to say that

“tools cannot do all the work, because so many other factors are in play—parental styles, media literacy and technological confidence, different levels of vulnerability and, crucially, trust”.

The real question—this is why I thought we should look at it from the other side of things in terms of default—is about how we mandate the use of these user empowerment tools in the Bill for both children and adults. In a sense, my concerns are exactly the opposite of those of the noble Baroness, Lady Fox—for some strange, unaccountable reason.

The noble Baroness, Lady Morgan, the noble Lord, Lord Griffiths, the right reverend Prelate and, notably, my noble friend Lady Parminter have made a brilliant case for their amendment, and it is notable that these amendments are supported by a massive range of organisations. They are all in this area of vulnerable adults: the Mental Health Foundation, Mind, the eating disorder charity Beat, the Royal College of Psychiatrists, the British Psychological Society, Rethink Mental Illness, Mental Health UK, and so on. It is not a coincidence that all these organisations are discussing this “feature”. This is a crucial aspect of the Bill.

Again, I was very much taken by some of the descriptions used by noble Lords during the debate. The right reverend Prelate the Bishop of Oxford said that young people do not suddenly become impervious to content when they reach 18, and he particularly described the pressures as the use of AI only increases. I thought the way the noble Baroness, Lady Harding, described the progression from teenagehood to adulthood was extremely important. There is not some sort of point where somebody suddenly reaches the age of 18 and has full adulthood which enables then to deal with all this content.

Under the Bill as it stands, adult users could still see and be served some of the most dangerous content online. As we have heard, this includes pro-suicide, pro-anorexia and pro-bulimia content. One has only to listen to what my noble friend Lady Parminter had to say to really be affected by the operation, if you like, of social media in those circumstances. This is all about the vulnerable. Of course, we know that anorexia has the highest mortality rate of any mental health problem; the NHS is struggling to provide specialist treatment to those who need it. Meanwhile, suicide and self-harm-related content remains common and is repeatedly implicated in deaths. All Members here who were members of the Joint Committee remember the evidence of Ian Russell about his daughter Molly. I think that affected us all hugely.

We believe now you can pay your money and take your choice of whichever amendment seems appropriate. Changing the user empowerment provisions to require category 1 providers to have either the safest options as default for users or the terms of my two amendments is surely a straightforward way of protecting the vast majority of internet users who do not want this material served to them.

You could argue that the new offence of encouragement to serious self-harm, which the Government have committed to introducing, might form part of the solution here, but you cannot criminalise all the legal content that treads the line between glorification and outright encouragement. Of course, we know the way the Bill has been changed. No similar power is proposed, for instance, to address eating disorder content.

The noble Baroness, Lady Healy, quoted our own Communications and Digital Committee and its recommendations about a comprehensive toolkit of settings overseen by Ofcom, allowing users to decide what types of content they see and from whom. I am very supportive of Amendment 38A from the noble Lord, Lord Knight, which gives a greater degree of granularity about the kind of user, in a sense, that can communicate to users.

Modesty means that of course I prefer my own amendments and I agree with the noble Baronesses, Lady Fraser, Lady Bull and Lady Harding, and I am very grateful for their support. But we are all heading in the same direction. We are all arguing for a broader “by default” approach. The onus should not be on these vulnerable adults in particular to switch them on, as the noble Baroness, Lady Bull, said. It is all about those vulnerable adults and we must, as my noble friend Lady Burt, said, have their best interests at heart, and that is why we have tabled these amendments.

18:00

[Lord Knight of Weymouth (Lab)]

My Lords, this has been one of the most important debates we have had so far in Committee, covering most of the issues in Clause 12—effectively, the replacement of the legal but harmful provisions that were in the draft Bill with the user empowerment tools, introducing the new element of the triple shield, or the three-legged stool as we are now going to describe it thanks to the noble Baroness, Lady Fraser. It is about how we as adults are empowered to protect ourselves from harmful content and, most crucially, the amplification of the harm caused by the systems used on the platforms.

I welcome subsections (4) and (5) of Clause 12, on ease of use and ease of access to the tools. Many platforms already offer these sort of tools. The noble Lord, Lord Clement-Jones, referred to the ParentZone research that has been circulated, which talked about a Facebook tool to prevent autoplay of ads. It took ParentZone’s tech-savvy researcher—not the noble Baroness, Lady Burt—three and a half hours to work out how to turn autoplay off. The research also found that 30% of tools had changed in the last year, so this is an ever-moving target for people to chase after.

The reality is that most of us do not have the time, even if we have the inclination, to deal with all these things. We already have user empowerment tools for unsubscribing from junk emails—and how many of us can be bothered to go through all that all the time? Sometimes I do but sometimes I just have to delete them and move on. We have to manage cookies; sometimes I do and sometimes I do not because I do not have time. That is why we need to look seriously at putting some of these tools on by default, with easily accessible settings to then turn them off if desired.

I therefore support Amendments 34 and 35, tabled by the noble Baroness, Lady Morgan, although I support those from the noble Lord, Lord Clement-Jones, more, which is why I put my name to them before the debate started. What the noble Baroness said about self-harm, suicide and eating disorders is really important. Again, this is less about people never being able to see individual items of content relating to those things and much more about restraining the platforms from bombarding us with similar content, as happened to Molly Russell and others. Here, of course, as many noble Lords have said, we should be mindful of the vulnerability of many young adults and other adults to the same experience that was implicated in Molly’s death.

According to Refuge’s research, which has been circulated, just over one in three UK women have experienced online abuse or harassment on social media, and perpetrators of domestic abuse are increasingly turning to technology as a tool to further their abuse. A briefing sent by the Royal College of Psychiatrists says that, according to NHS England, only 57.5% of 17 to 24 year-olds feel safe using social media in this country. Why not improve their safety as adults by having them opt in to seeing potentially harmful content—this is particularly important to some vulnerable adults with limited capacity to make decisions about internet and social media use—without limiting the freedom of adults to see this content if they want to?

The noble Lord, Clement-Jones, with Amendments 36 and 37, to which I added my name, is essentially going back to some of the debate about safety by design. As the right reverend Prelate set out so powerfully, the platforms are designed to maximise engagement, time spent on their site, data collection and the targeting of advertising. It is about their business model, not our safety. Artificial intelligence has no ethical constraint, and these user empowerment tools allow us to shift the algorithm in our favour, including to make us safer. To toggle them off is to side with the business model regardless of adult safety; to toggle them on is to side with adults having a more pleasant but slightly less engaging experience. Whose side is the Minister on? We look forward to hearing.

[Baroness Fox of Buckley (Non-Afl)]

Just to clarify, in a way we have reduced this debate to whether the default position should be on or off, although in fact that is only one aspect of this. My concern, and what I maybe spent too long talking about, is what happens if we turn the toggles to “on”. The assumption we keep making is that once they are on, we are safe. The difficulty is that the categories of what is filtered out after turning them on are not necessarily what the user thinks they are. I am simply asking how you get around that; otherwise, we think it is too easy—turn it on or off; press the button. Is it not problematic for us all if, in thinking you are going to stop seeing hate, hate turns out actually to be legitimate and interesting political ideas?

[Lord Knight of Weymouth (Lab)]

As ever, the noble Baroness is an important voice in bursting our bubble in the Chamber. I continue to respect her for that. It will not be perfect; there is no perfect answer to all this. I am siding with safety and caution rather than a bit of a free-for-all. Sometimes there might be overcaution and aspects of debate where the platforms, the regulator, the media, and discussion and debate in this Chamber would say, “The toggles have got it wrong”, but we just have to make a judgment about which side we are on. That is what I am looking forward to hearing from the Minister.

These amendments are supported on all sides and by a long list of organisations, as listed by the noble Baroness, Lady Morgan, and the noble Lord, Lord Clement-Jones. The Minister has not conceded very much at all so far to this Committee. We have heard compelling speeches, such as those from the noble Baroness, Lady Parminter, that have reinforced my sense that he needs to give in on this when we come to Report.

I will also speak to my Amendment 38A. I pay tribute to John Penrose MP, who was mentioned by the noble Baroness, Lady Harding, and his work in raising concerns about misinformation and in stimulating discussion outside the Chambers among parliamentarians and others. Following discussions with him and others in the other place, I propose that users of social media should have the option to filter out content the provenance of which cannot be authenticated.

As we know, social media platforms are often awash with content that is unverified, misleading or downright false. This can be particularly problematic when it comes to sensitive or controversial topics such as elections, health or public safety. In these instances, it can be difficult for users to know whether the information presented to them is accurate. Many noble Lords will be familiar with the deep-fake photograph of the Pope in a white puffa jacket that recently went viral, or the use of imagery for propaganda purposes following the Russian invasion of Ukraine.

The Content Authenticity Initiative has created an open industry standard for content authenticity and provenance. Right now, tools such as Adobe Photoshop allow users to turn on content credentials to securely attach provenance data to images and any edits then made to those images. That technology has now been adopted by camera manufacturers such as Leica and Nikon, so the technology is there to do some of this to help give us some reassurance.

Amendment 38A would allow users to filter out unverified content and is designed to flag posts or articles that do not come from a reliable source or have not been independently verified by a reputable third party. Users could then choose to ignore or filter out such content, ensuring that they are exposed only to information that has been vetted and verified. This would not only help users to make more informed decisions but help to combat the spread of false information on social media platforms. By giving users the power to filter out unverified content, we can help to ensure that social media platforms are not used to spread harmful disinformation or misinformation.

Amendments 42 and 45, in the name of my noble friend Lord Stevenson, are good and straightforward improvements to the Bill, suggesting that Clause 12(11) should include all the protected characteristics in the Equality Act 2010. I listened closely to the argument of the noble Baroness, Lady Buscombe, about listing the various characteristics, but I think it makes much more sense to do what my noble friend is suggesting and just reference the Equality Act. If we chose separately to amend the Equality Act to change protected characteristics, that change would then flow through into this Bill. That seems to be a much more sensible and pragmatic way to proceed. Similarly, in Amendment 45 my noble friend is suggesting that consideration should be given by the Secretary of State as to whether any of these tools should also be available to child users, and we have heard good arguments in favour of that when it comes to dealing with the cliff-edge effect, as described by the noble Baroness, Lady Kidron.

Lastly—and, perhaps the Committee will forgive me, slightly bizarrely—Amendment 283ZA, in the name of the noble Baroness, Lady Fox, to Clause 170(7) in Part 11 invites us to consider, among other things, whether a bot can act reasonably. Given that self-coding bots are now technically possible, I would be fascinated to hear the Minister’s view on whether an autonomous bot can have reason. I asked ChatGPT this question. For the help of the Committee, it replied:

“As an artificial intelligence language model, I do not have consciousness or emotions, and therefore, I do not have a capacity for ‘reason’ in the way that humans understand it. However, I am programmed to use advanced algorithms that allow me to process and analyze large amounts of data, recognize patterns, and provide reasoned responses based on the information available to me. This allows me to simulate a form of reasoning, but it is important to note that it is not the same as human reasoning, as I do not have subjective experiences or personal biases. Ultimately, my abilities are limited to the algorithms and data that have been programmed into my system, and I cannot generate my own subjective experiences or judgments.”


That is the view of the algorithm as to whether or not bots can have reason. I look forward to the Minister’s response.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the Government recognise the objectives of the amendments in this group: to strengthen protections for adults online. I hope noble Lords will agree that the Bill will indeed significantly improve the safety of all adult users, particularly those who are more vulnerable.

The user empowerment content features will not be the only measures in the Bill that will protect adults. They will act as a final layer of protection, coming after the duties on illegal content and the requirement on category 1 providers to uphold their terms of service. However, as the Clause 12 duties apply to legal content, we need to tread carefully and not inadvertently restrict free expression.

Amendments 34 and 35 in the name of my noble friend Lady Morgan of Cotes and Amendments 36 and 37 in the name of the noble Lord, Lord Clement-Jones, seek to require category 1 services to have their user empowerment content features in operation by default for adult users. The Government share concerns about users who experience disproportionate levels of abuse online or those who are more susceptible to suicide, self-harm or eating disorder content, but these amendments encroach on users’ rights in two ways.

First, the amendments intend to make the decision on behalf of users about whether to have these features turned on. That is aimed especially at those who might not otherwise choose to use those features. The Government do not consider it appropriate to take that choice away from adults, who must be allowed to decide for themselves what legal content they see online. That debate was distilled in the exchange just now between the noble Lord, Lord Knight, and the noble Baroness, Lady Fox, when the noble Lord said he would err on the side of caution, even overcaution, while he characterised the other side as a free-for-all. I might say that it was erring on the side of freedom. That is the debate that we are having, and should have, when looking at these parts of the Bill.

Secondly, the amendments would amount to a government requirement to limit adults’ access to legal content. That presents real concerns about freedom of expression, which the Government cannot accept.

18:15

[Baroness Kidron (CB)]

Does the Minister therefore think that the Government condone the current system, where we are inundated algorithmically with material that we do not want? Are the Government condoning that behaviour, in the way that he is saying they would condone a safety measure?

[Lord Parkinson of Whitley Bay (Con)]

We will come to talk about algorithms and their risks later on. There is an important balance to strike here that we have debated, rightly, in this group. I remind noble Lords that there are a range of measures that providers can put in place—

[Lord Stevenson of Balmacara (Lab)]

Because of the importance of that point in relation to what the Minister is about to say, we should be clear about this point: is he ruling out the ability to prioritise the needs and requirements of those who are effectively unable to take the decisions themselves in favour of a broader consideration of freedom of expression? It would be helpful for the future of this debate to be clear on that point.

[Lord Parkinson of Whitley Bay (Con)]

We will come in a moment to the provisions that are in the Bill to make sure that decisions can be taken by adults, including vulnerable adults, easily and clearly. If the noble Lord will allow, I will cover that point.

I was in the middle of reminding noble Lords that there are a range of measures that providers can put in place under these duties, some of which might have an impact on a user’s experience if they were required to be switched on by default. That may include, for example, restricting a user’s news feed to content from connected users, adding to the echo chamber and silos of social media, which I know many noble Lords would join me in decrying. We think it is right that that decision is for individual users to make.

The Bill sets out that the user empowerment content tools must be offered to all adult users and must be easy to access—to go the point raised just now as well as by my noble friend Lady Harding, and the noble Baroness, Lady Burt, and, as noble Lords were right to remind us, pushed by the noble Baroness, Lady Campbell of Surbiton, who I am pleased to say I have been able to have discussions with separately from this Committee.

Providers will also be required to have clear and accessible terms of service about what tools are offered on their service and how users might take advantage of them. Ofcom will be able to require category 1 services to report on user empowerment tools in use through transparency reports. Ofcom is also bound by the Communications Act 2003 and the public sector equality duty, so it will need to take into account the ways that people with certain characteristics, including people with disabilities, may be affected when performing its duties, such as writing the codes of practice for the user empowerment duties.

[Lord Knight of Weymouth (Lab)]

I think the Minister is trying to answer the point raised by my noble friend about vulnerable adults. I am interested in the extent to which he is relying on the Equality Act duty on Ofcom then to impact the behaviour of the platforms that it is regulating in respect of how they are protecting vulnerable adults. My understanding is that the Equality Act duty will apply not to the platforms but only to Ofcom in the way that it regulates them. I am unclear how that is going to provide the protection that we want.

[Lord Parkinson of Whitley Bay (Con)]

That is right. Platforms are not in the public sector, so the public sector equality duty does not apply to them. However, that duty applies to Ofcom, taking into account the ways in which people with certain characteristics can be affected through the codes of practice and the user empowerment duties that it is enforcing. So it suffuses the thinking there, but the duty is on Ofcom as a public sector body.

We talk later in Clause 12(11) of some of the characteristics that are similar in approach to the protected characteristics in the Equality Act 2010. I will come to that again shortly in response to points made by noble Lords.

I want to say a bit about the idea of there being a cliff edge at the age of 18. This was raised by a number of noble Lords, including the noble Lord, Lord Griffiths, my noble friends Lady Morgan and Lady Harding and the noble Baroness, Lady Kidron. The Bill’s protections recognise that, in law, people become adults when they turn 18—but it is not right to say that there are no protections for young adults. As noble Lords know, the Bill will provide a triple shield of protection, of which the user empowerment duties are the final element.

The Bill already protects young adults from illegal content and content that is prohibited in terms and conditions. As we discussed in the last group, platforms have strong commercial incentives to prohibit content that the majority of their users do not want to see. Our terms of service duties will make sure that they are transparent about and accountable for how they treat this type of content.

[Lord Clement-Jones (LD)]

My Lords, what distinguishes young adults from older adults in what the Minister in saying?

[Lord Parkinson of Whitley Bay (Con)]

In law, there is nothing. I am engaging with the point that there is no cliff edge. There are protections for people once they turn 18. People’s tastes and risk appetites may change over time, but there are protections in the Bill for people of all ages.

[Lord Clement-Jones (LD)]

Surely, this is precisely the point that the noble Baroness, Lady Kidron, was making. As soon as you reach 18, there is no graduation at all. There is no accounting for vulnerable adults.

[Lord Parkinson of Whitley Bay (Con)]

There is not this cliff edge which noble Lords have feared—that there are protections for children and then, at 18, a free for all. There are protections for adult users—young adults, older adults, adults of any age—through the means which I have just set out: namely, the triple shield and the illegal content provisions. I may have confused the noble Lord in my attempt to address the point. The protections are there.

[Lord Clement-Jones (LD)]

There is an element of circularity to what the Minister is saying. This is precisely why we are arguing for the default option. It allows this vulnerability to be taken account of.

[Lord Knight of Weymouth (Lab)]

Perhaps it would help if the Minister wanted to just set out the difference for us. Clearly, this Committee has spent some time debating the protection for children, which has a higher bar than protection for adults. It is not possible to argue that there will be no difference at the age of 18, however effective the first two elements of the triple shield are. Maybe the Minister needs to think about coming at it from the point of view of a child becoming an adult, and talk us through what the difference will be.

[Lord Parkinson of Whitley Bay (Con)]

Once somebody becomes an adult in law at the age of 18, they are protected through the triple shield in the Bill. The user empowerment duties are one element of this, along with the illegal content duties and the protection against content prohibited in terms and conditions and the redress through Ofcom.

The legislation delivers protection for adults in a way that preserves their choice. That is important. At the age of 18, you can choose to go into a bookshop and to encounter this content online if you want. It is not right for the Government to make decisions on behalf of adults about the legal content that they see. The Bill does not set a definition of a vulnerable adult because this would risk treating particular adults differently, or unfairly restricting their access to legal content or their ability to express themselves. There is no established basis on which to do that in relation to vulnerability.

Finally, we remain committed to introducing a new criminal offence to capture communications that intentionally encourage or assist serious self-harm, including eating disorders. This will provide another layer of protection on top of the regulatory framework for both adults and children.

[Lord Knight of Weymouth (Lab)]

I understand all of that—I think—but that is not the regime being applied to children. It is really clear that children have a safer, better experience. The difference between those experiences suddenly happening on an 18th birthday is what we are concerned about.

[Lord Clement-Jones (LD)]

Before the Minister stands up—a new phrase—can he confirm that it is perfectly valid to have a choice to lift the user empowerment tool, just as it is to impose it? Choice would still be there if our amendments were accepted.

[Lord Parkinson of Whitley Bay (Con)]

It would be, but we fear the chilling effect of having the choice imposed on people. As the noble Baroness, Lady Fox, rightly put it, one does not know what one has not encountered until one has engaged with the idea. At the age of 18, people are given the choice to decide what they encounter online. They are given the tools to ensure that they do not encounter it if they do not wish to do so. As the noble Lord has heard me say many times, the strongest protections in the Bill are for children. We have been very clear that the Bill has extra protections for people under the age of 18, and it preserves choice and freedom of expression online for adult users—young and old adults.

My noble friend Lady Buscombe asked about the list in Clause 12(11). We will keep it under constant review and may consider updating it should compelling evidence emerge. As the list covers content that is legal and designed for adults, it is right that it should be updated by primary legislation after a period of parliamentary scrutiny.

Amendments 42 and 38A, tabled by the noble Lords, Lord Stevenson of Balmacara and Lord Knight of Weymouth, respectively, seek to change the scope of user empowerment content features. Amendment 38A seeks to expand the user empowerment content features to include the restriction of content the provenance of which cannot be authenticated. Amendment 42 would apply features to content that is abusive on the basis of characteristics protected under the Equality Act 2010.

The user empowerment content list reflects areas where there is the greatest need for users to be offered choice about reducing their exposure to types of content. While I am sympathetic to the intention behind the amendments, I fear they risk unintended consequences for users’ rights online. The Government’s approach recognises the importance of having clear, enforceable and technically feasible duties that do not infringe users’ rights to free expression. These amendments risk undermining this. For instance, Amendment 38A would require the authentication of the provenance of every piece of content present on a service. This could have severe implications for freedom of expression, given its all-encompassing scope. Companies may choose not to have anything at all.

[Lord Knight of Weymouth (Lab)]

I will try to help the Minister. If the amendment has been poorly drafted, I apologise. It does not seek to require a platform to check the provenance of every piece of content, but content that is certified as having good provenance would have priority for me to be able to see it. In the Bill, I can see or not see verified users. In the same way, I could choose to see or not see verified content.

[Lord Parkinson of Whitley Bay (Con)]

Thank you. I may be reading the noble Lord’s Amendment 38A excessively critically. I will look at it again. To try to reassure the noble Lord, the Bill already ensures that all services take steps to remove illegal manufactured or manipulated content when they become aware of it. Harmful and illegal misinformation and disinformation is covered in that way.

Amendment 42 would require providers to try to establish on a large scale what is a genuinely held belief that is more than an opinion. In response, I fear that providers would excessively apply the user empowerment features to manage that burden.

A number of noble Lords referred to the discrepancy between the list—

18:30

[Lord Stevenson of Balmacara (Lab)]

Several times in the Bill—but this is a clear example—the drafters have chosen to impose a different sequence of words from that which exists in statute. The obvious one here is the Equality Act, which we have touched on before. The noble Baroness, Lady Buscombe, made a number of serious points about that. Why have the Government chosen to list, separately and distinctively, the characteristics which we have also heard, through a different route, the regulator will be required to uphold in respect of the statute, while the companies will be looking to the text of the Bill, when enacted? Is that not just going to cause chaos?

[Lord Parkinson of Whitley Bay (Con)]

The discrepancy comes from the point we touched on earlier. Ofcom, as a public body, is subject to the public sector equality duty and therefore the list set out in the Equality Act 2010. The list at Clause 12(11) relates to content which is abusive, and is therefore for providers to look at. While the Equality Act has established an understanding of characteristics which should be given special protection in law, it is not necessarily desirable to transpose those across. They too are susceptible to the point made by my noble friend Lady Buscombe about lists set out in statute. If I remember rightly, the Equality Act was part of a wash-up at the end of that Parliament, and whether Parliament debated that Bill as thoroughly as it is debating this one is a moot point.

[Lord Stevenson of Balmacara (Lab)]

The noble Lord made that point before, and I was going to pick him up on it. It really is not right to classify our legislation by whether it came through in a short or long period. We are spending an awfully long time on this but that is not going to make it any better. I was involved in the Equality Act, and I have the scars on my back to prove it. It is jolly good legislation and has stood the test of time. I do not think the point is answered properly by simply saying that this is a better way of doing it. The Minister said that Clause 12(11) was about abuse targets, but Clause 12(12) is about “hatred against people” and Clause 12(13) is a series of explanatory points. These provisions are all grist to the lawyers. They are not trying to clarify the way we operate this legislation, in my view, to the best benefit of those affected by it.

[Lord Parkinson of Whitley Bay (Con)]

The content which we have added to Clause 12 is a targeted approach. It reflects input from a wide range of interested parties, with whom we have discussed this, on the areas of content that users are most concerned about. The other protected characteristics that do not appear are, for instance, somebody’s marriage or civil partnership status or whether they are pregnant. We have focused on the areas where there is the greatest need for users to be offered the choice about reducing their exposure to types of content because of the abuse they may get from it. This recognises the importance of clear, enforceable and technically feasible duties. As I said a moment ago in relation to the point made by my noble friend Lady Buscombe, we will keep it under review but it is right that these provisions be debated at length—greater length than I think the Equality Bill was, but that was long before my time in your Lordships’ House, so I defer to the noble Lord’s experience and I am grateful that we are debating them thoroughly today.

I will move now, if I may, to discuss Amendments 43 and 283ZA, tabled by the noble Baroness, Lady Fox of Buckley. Amendment 43 aims to ensure that the user empowerment content features do not capture legitimate debate and discussion, specifically relating to the characteristics set out in subsections (11) and (12). Similarly, her Amendment 283ZA aims to ensure that category 1 services apply the features to content only when they have reasonable grounds to infer that it is user empowerment content.

With regard to both amendments, I can reassure the noble Baroness that upholding users’ rights to free expression is an integral principle of the Bill and it has been accounted for in drafting these duties. We have taken steps to ensure that legitimate online discussion or criticism will not be affected, and that companies make an appropriate judgment on the nature of the content in question. We have done this by setting high thresholds for inclusion in the content categories and through further clarification in the Bill’s Explanatory Notes, which I know she has consulted as well. However, the definition here deliberately sets a high threshold. By targeting only abuse and incitement to hatred, it will avoid capturing content which is merely challenging or robust discussion on controversial topics. Further clarity on definitions will be provided by Ofcom through regulatory guidance, on which it will be required to consult. That will sit alongside Ofcom’s code of practice, which will set out the steps companies can take to fulfil their duties.

[Baroness Fox of Buckley (Non-Afl)]

I appreciate the Minister’s comments but, as I have tried to indicate, incitement to hatred and abuse, despite people thinking they know what those words mean, is causing huge difficulty legally and in institutions throughout the land. Ofcom will have its work cut out, but it was entirely for that reason that I tabled this amendment. There needs to be an even higher threshold, and this needs to be carefully thought through.

[Lord Parkinson of Whitley Bay (Con)]

But as I think the noble Baroness understands from that reference, this is a definition already in statute, and with which Parliament and the courts are already engaged.

The Bill’s overarching freedom of expression duties also apply to Clause 12. Subsections (4) to (7) of Clause 18 stipulate that category 1 service providers are required to assess the impact on free expression from their safety policies, including the user empowerment features. This is in addition to the duties in Clause 18(2), which requires all user-to-user services to have particular regard to the importance of protecting freedom of expression when complying with their duties. The noble Baroness’s Amendment 283ZA would require category 1 providers to make judgments on user empowerment content to a similar standard required for illegal content. That would be disproportionate. Clause 170 already specifies how providers must make judgments about whether content is of a particular kind, and therefore in scope of the user empowerment duties. This includes making their judgment based on “all relevant information”. As such, the Bill already ensures that the user empowerment content features will be applied in a proportionate way that will not undermine free speech or hinder legitimate debate online.

Amendment 45, tabled by the noble Lord, Lord Stevenson of Balmacara, would require the Secretary of State to lay a Statement before Parliament outlining whether any of the user empowerment duties should be applied to children. I recognise the significant interest that noble Lords have in applying the Clause 12 duties to children. The Bill already places comprehensive requirements on Part 3 services which children are likely to access. This includes undertaking regular risk assessments of such services, protecting children from harmful content and activity, and putting in place age-appropriate protections. If there is a risk that children will encounter harm, such as self-harm content or through unknown or unverified users contacting them, service providers will need to put in place age- appropriate safety measures. Applying the user empowerment duties for child users runs counter to the Bill’s child safety objectives and may weaken the protections for children—for instance, by giving children an option to see content which is harmful to them or to engage with unknown, unverified users. While we recognise the concerns in this area, for the reasons I have set out, the Government do not agree with the need for this amendment.

I will resist the challenge of the noble Lord, Lord Knight, to talk about bots because I look forward to returning to that in discussing the amendments on future-proofing. With that, I invite noble Lords—

[Baroness Kidron (CB)]

I noted the points made about the way information is pushed and, in particular, the speech of the right reverend Prelate. Nothing in the Government’s response has really dealt with that concern. Can the Minister say a few words about not the content but the way in which users are enveloped? On the idea that companies always act because they have a commercial imperative not to expose users to harmful material, actually, they have a commercial imperative to spread material and engage users. It is well recorded that a lot of that is in fact harmful material. Can the Minister speak a little more about the features rather than the content?

[Lord Parkinson of Whitley Bay (Con)]

We will discuss this when it comes to the definition of content in the Bill, which covers features. I was struck by the speech by the right reverend Prelate about the difference between what people encounter online, and the analogy used by the noble Baroness, Lady Fox, about a bookshop. Social media is of a different scale and has different features which make that analogy not a clean or easy one. We will debate in other groups the accumulated threat of features such as algorithms, if the noble Baroness, Lady Kidron, will allow me to go into greater detail then, but I certainly take the points made by both the right reverend Prelate and the noble Baroness, Lady Fox, in their contributions.

[Baroness Morgan of Cotes (Con)]

My Lords, I thank my noble friend very much indeed, and thank all noble Lords who have taken part. As the noble Lord, Lord Knight, said, this has been an important debate—they are all important, of course—but I think this has really got to the heart of parts of the Bill, parts of why it has been proposed in the first place, and some choices the Government made in their drafting and the changes they have made to the Bill. The right reverend Prelate reminded us, as Bishops always do, of the bigger picture, and he was quite right to do so. There is no equality of arms, as he put it, between most of us as internet users and these enormous companies that are changing, and have changed, our society. My noble friend was right—and I was going to pick up on it too—that the bookshop example given by the noble Baroness, Lady Fox, is, I am afraid, totally misguided. I love bookshops; the point is that I can choose to walk into one or not. If I do not walk into a bookshop, I do not see the books promoting some of the content we have discussed today. If they spill out on to the street where I trip over them, I cannot ignore them. This would be even harder if I were a vulnerable person, as we are going to discuss.

Noble Lords said that this is not a debate about content or freedom of expression, but that it is about features; I think that is right. However, it is a debate about choice, as the noble Lord, Lord Clement-Jones, said. I am grateful to each of those noble Lords who supported my amendments; we have had a good debate on both sets of amendments, which are similar. But as the noble Lord, Lord Griffiths, said, some of the content we are discussing, particularly in subsection (10), relating to suicide, pro-self-harm and pro-anorexia content, has literal life or death repercussions. To those noble Lords, and those outside this House, who seem to think we should not worry and should allow a total free-for-all, I say that we are doing so, in that the Government, in choosing not to adopt such amendments, are making an active choice. I am afraid the Government are condoning the serving up of insidious, deliberately harmful and deliberately dangerous content to our society, to younger people and vulnerable adults. The Minister and the Government would be better off if they said, “That is the choice that we have made”. I find it a really troubling choice because, as many noble Lords will know, I was involved in this Bill a number of years ago—there has been a certain turnover of Culture Secretaries in the last couple of years, and I was one of them. I find the Government’s choice troubling, but it has been made. As the noble Lord, Lord Knight, said, we are treating children differently from how we are treating adults. As drafted, there is a cliff edge at the age of 18. As a society, we should say that there are vulnerabilities among adults, as we do in many walks of life; and exactly as the noble Baroness, Lady Parminter, so powerfully said, there are times when we as a House, as a Parliament, as a society and as a state, should say we want to protect people. There is an offer here in both sets of amendments—I am not precious about which ones we choose—to have that protection.

I will of course withdraw the amendment today, because that is the convention of the House, but I ask my noble friend to reflect on the strength of feeling expressed by the House on this today; I think the Whip on the Bench will report as well. I am certain we will return to this on Report, probably with a unified set of amendments. In the algorithmic debate we will return to, the Government will have to explain, in words of one syllable, to those outside this House who worry about the vulnerable they work with or look after, about the choice that the Government have made in not offering protections when they could have done, in relation to these enormously powerful platforms and the insidious content they serve up repeatedly.

18:45

Amendment 34 withdrawn.

Amendments 35 to 37 not moved.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

I advise the Committee that if Amendment 38 is agreed to, I shall not be able to call Amendment 38A by reason of pre-emption.

Amendment 38

Moved by

[Lord Moylan]

38: Clause 12, page 12, line 24, leave out subsection (6)
Member’s explanatory statement
This amendment, along with the other amendment to Clause 12 in the name of Lord Moylan, removes requirements on sites to display, on demand, only the parts of a conversation (or in the case of collaboratively-edited content, only the parts of a paragraph, sentence or article) that were written by “verified” users, and to prevent other users from amending (e.g. improving), or otherwise interacting with, such contributions.

[Lord Moylan (Con)]

My Lords, I am going to endeavour to be relatively brief. I rise to move Amendment 38 and to speak to Amendments 39, 139 and 140 in this group, which are in my name. All are supported by my noble friend Lord Vaizey of Didcot, to whom I am grateful.

Amendments 38 and 39 relate to Clause 12. They remove subsections (6) and (7) from the Bill; that is, the duty to filter out non-verified users. Noble Lords will understand that this is different from the debate we have just had, which was about content. This is about users and verification of the users, rather than the harm or otherwise of the content. I am sure I did not need to say that, but perhaps it helps to clarify my own thinking to do so. Amendments 139 and 140 are essentially consequential but make it clear that my amendments do not prohibit category 1 services from offering this facility. They make it a choice, not a duty.

I want to make one point only in relation to these amendments. It has been well said elsewhere that this is a Twitter-shaped Bill, but it is trying to apply itself to a much broader part of the internet than Twitter, or things like it. In particular, community-led services like Wikipedia, to which I have made reference before, operate on a totally different basis. The Bill seeks to create a facility whereby members of the public like you and me can, first, say that we want the provider to offer a facility for verifying those who might use their service, and secondly, for us, as members of the public, to be able to say we want to see material from only those verified accounts. However, the contributors to Wikipedia are not verified, because Wikipedia has no system to verify them, and therefore it would be impossible for Wikipedia, as a category 1 service, to be able to comply with this condition on its current model, which is a non-commercial, non-profit one, as noble Lords know from previous comments. It would not be able to operate this clause; it would have to say that either it is going to require every contributing editor to Wikipedia to be verified first in order to do so, which would be extremely onerous; or it would have to make it optional, which would be difficult, but lead to the bizarre conclusion that you could open an article on Wikipedia and find that some of its words or sentences were blocked, and you could not read them because those amendments to the article had been made by someone who had not been verified. Of course, putting a system in place to allow that absurd outcome would itself be an impossible burden on Wikipedia.

My complaint—as always, in a sense—about the Bill is that it misfires. Every time you touch it, it misfires in some way because it has not been properly thought through. It is perhaps trying to do too much across too broad a front, when it is clear that the concern of the Committee is much narrower than trying to bowdlerize Wikipedia articles. That is not the objective of anybody here, but it is what the Bill is tending to do.

I will conclude by saying—I invite my noble friend to comment on this if he wishes; I think he will have to comment on it at some stage—that in reply to an earlier Committee debate, I heard him say somewhat tentatively that he did not think that Wikipedia would qualify as a category 1 service. I am not an advocate for Wikipedia; I am just a user. But we need to know what the Government’s view is on the question of Wikipedia and services like it. Wikipedia is the only community-led service, I think, of such a scale that it would potentially qualify as category 1 because of its size and reach.

If the Minister’s view is that Wikipedia would not qualify as a category 1 service—in which case, my amendments are irrelevant because it would not be caught by this clause—then he needs to say so. More than that, he needs to say on what basis it would not qualify as a category 1 service. Would it be on the face of the Bill? If not, would it be in the directions given by the Secretary of State to the regulator? Would it be a question of the regulator deciding whether it was a category 1 service? Obviously, if you are trying to run an operation such as Wikipedia with a future, you need to know which of those things it is. Do you have legal security against being determined as a category 1 provider or is it merely at the whim—that is not the right word; the decision—of the regulator in circumstances that may legitimately change? The regulator may have a good or bad reason for changing that determination later. You cannot run a business not knowing these things.

I put it to noble Lords that this clause needs very careful thinking through. If it is to apply to community-led services such as Wikipedia, it is an absurdity. If it is not to apply to them because what I think I heard my noble friend say pertains and they are not, in his view, a category 1 service, why are they not a category 1 service? What security do they have in knowing either way? I beg to move.

[Baroness Buscombe (Con)]

My Lords, I will speak to Amendment 106 in my name and the names of my noble and learned friend Lord Garnier and the noble Lord, Lord Moore of Etchingham. This is one of five amendments focused on the need to address the issue of activist-motivated online bullying and harassment and thereby better safeguard the mental health and general well-being of potential victims.

Schedule 4, which defines Ofcom’s objectives in setting out codes of practice for regulated user-to-user services, should be extended to require the regulator to consider the protection of individuals from communications offences committed by anonymous users. The Government clearly recognise that there is a threat of abuse from anonymous accounts and have taken steps in the Bill to address that, but we are concerned that their approach is insufficient and may be counterproductive.

I will explain. The Government’s approach is to require large social media platforms to make provision for users to have their identity verified, and to have the option of turning off the ability to see content shared by accounts whose owners have not done this. However, all this would mean is that people could not see abuse being levelled at them. It would not stop the abuse happening. Crucially, it would not stop other people seeing it, or the damage to his or her reputation or business that the victim may suffer as a result. If I am a victim of online bullying and harassment, I do not want to see it, but I do not want it to be happening at all. The only means I have of stopping it is to report it to the platform and then hope that it takes the right action. Worse still, if I have turned off the ability to see content posted by unverified—that is, anonymous—accounts, I will not be able to complain to the platform as I will not have seen it. It is only when my business goes bust or I am shunned in the street that I realise that something is wrong.

The approach of the Bill seems to be that, for the innocent victim—who may, for example, breed livestock for consumption—it is up that breeder to be proactive to correct harm already done by someone who does not approve of eating meat. This is making a nonsense of the law. This is not how we make laws in this country —until now, it seems. Practically speaking, the worst that is likely to happen is that the platform might ban their account. However, if their victims have had no opportunity to read the abuse or report it, even that fairly low-impact sanction could not be levelled against them. In short, the Bill’s current approach, I am sorry to say, would increase the sense of impunity, not lessen it.

One could argue that, if a potential abuser believes that their victim will not read their abuse, they will not bother issuing it. Unfortunately, this misunderstands the psyche of the online troll. Many of them are content to howl into the void, satisfied that other people who have not turned on the option to filter out content from unverified accounts will still be able to read it. The troll’s objective of harming the victim may be partially fulfilled as a result.

There is also the question of how much uptake there will be of the option to verify one’s identity, and numerous questions about the factors that this will depend on. Will it be attractive? Will there be a cost? How quick and efficient will the process be? Will platforms have the capacity to implement it at scale? Will it have to be done separately for every platform?

If uptake of verification is low, most people simply will not use the option to filter content of unverified accounts, even if it means that they remain more susceptible to abuse, since they would be cutting themselves off from most of their users. Clearly, that is not an option for anyone using social media for any promotional purpose. Even those who use it for purely social reasons will find that they have friends who do not want to be verified. Fundamentally, people use social media because other people use it. Carving oneself off from most of them defeats the purpose of the exercise.

It is not clear what specific measures the Bill could take to address the issue. Conceivably, it could simply ban online platforms from maintaining user accounts whose owners have not had their identities verified. However, this would be truly draconian and most likely lead to major platforms exiting the UK market, as the noble Baroness, Lady Fox, has rightly argued in respect of other possible measures. It would also be unenforceable, since users could simply turn on a VPN, pretend to be from some other country where the rules do not apply and register an account as though they were in that country.

There are numerous underlying issues that the Bill recognises as problems but does not attempt to prescribe solutions for. Its general approach is to delegate responsibility to Ofcom to frame its codes of practice for operators to follow in order to effectively tackle these problems. Specifically, it sets out a list of objectives that Ofcom, in drawing up its codes of practice, will be expected to meet. The protection of users from abuse, specifically by unverified or anonymous users, would seem to be an ideal candidate for inclusion in this list of amendments. If required to do so, Ofcom could study the issue closely and develop more effective solutions over time.

I was pleased to see, in last week’s Telegraph, an article that gave an all too common example of where the livelihood of a chef running a pub in Cornwall has suffered what amounts to vicious abuse online from a vegan who obviously does not approve of the menu, and who is damaging the business’s reputation and putting the chef’s livelihood at risk. This is just one tiny example, if I can put it that way, of the many thousands that are happening all the time. Some 584 readers left comments, and just about everyone wrote in support of the need to do something to support that chef and tackle this vicious abuse.

I return to a point I made in a previous debate: livelihoods, which we are deeply concerned about, are at stake here. I am talking not about big business but about individuals and small and family businesses that are suffering—beyond abuse—loss of livelihood, financial harm and/or reputational damage to business, and the knock-on effects of that.

House resumed. Committee to begin again not before 7.41 pm.

Recovering Access to Primary Care

Tuesday 9th May 2023 Lords Chamber

Statement

19:01

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

My Lords, I shall now repeat a Statement made in another place:

“Madam Deputy Speaker, with permission, I would like to make a Statement on the primary care recovery plan. For most of us, general practice is our front-door to the NHS. In the last six months, over half the UK population has used GP services, and GPs in England carry out around 1 million appointments every single day. They are doing more than ever. General practice is delivering 10% more appointments a month than before the pandemic; the equivalent of the average GP surgery sees an additional 20 patients every working day. There are more staff than ever, with numbers up by a quarter since 2019, and we are on track to deliver our manifesto target, with an additional 25,000 staff already recruited into primary care. We are investing more than ever, too, with the most recent figures showing that funding was around a fifth higher than five years before, even once inflation is taken into account.

But we know that there is a great deal still to do. Covid-19 presented many challenges across the health service, leaving us with large numbers of people on NHS waiting lists, which need to be tackled. In general practice, patient contacts with GPs have increased between 20% and 40% since the pandemic. As well as recovering from the pandemic, we face longer-term challenges, too. Since 2010, the number of people aged 70 and above has increased by a third, and this group attends five times more GP appointments than young people. Not only that, but advances in technology and treatments mean that people understandably expect more from primary care systems.

Today I can announce our primary care recovery plan, and I pay tribute to my honourable friend the Member for Harborough for this plan. I have deposited copies of the plan in the Libraries of both Houses. Our plan will enable us to better recover from the pandemic, to cut NHS waiting lists and to make the most of the opportunities ahead by focusing on three key areas: first, tackling the 8 am rush by giving GPs new digital tools; secondly, freeing up GP appointments by funding pharmacists to do more, with a Pharmacy First approach; and, thirdly, providing more GPs’ staff and more appointments. NHS England and my department have committed to make over £1.2 billion of funding available to support the plan, in addition to the significant real-terms increases in spending on general practice in recent years. Taken together, our plan will make it easier for people to get the help they need.

The plan builds on lots of other important work. Last year, we launched the elective recovery plan, which is making big strides to reduce the backlog brought by Covid-19. We eliminated nearly all wait lists over two years by last July, and 18-month waits have now decreased by over 90% since their peak in September 2021. By contrast, in the NHS in Labour-run Wales, people are twice as likely to be waiting for treatment than in England. They still have over 41,000 people waiting over two years and nearly 80,000 waiting over 18 months.

In addition, this January, I came before the House to launch our urgent and emergency care plan, which is focused on how to better manage pressures in emergency departments, with funding to support discharge to improve patient flow in hospitals. Today’s plan is the next important piece of work.

Turning to the detail of the plan, our first aim is to tackle the 8 am rush. We will do this by providing GPs with new and better technology, moving us from an analogue approach to ways of working in the digital age. An average-sized GP practice will get 100 calls in the first hour of a Monday morning, but no team of receptionists, no matter how hard-working, can handle such demand. About half of GPs are still on old analogue phones, meaning that when things get busy, people get engaged tones. We are changing this by investing in modern phone systems for all GPs, including features such as call-back options, and by improving the digital front-door for even more patients. In the GP practices that have already adopted those systems, there has been a 30% improvement in patient feedback on their ability to access the appointments they need. This also reflects the fact that online requests can help find the right person within the practice, such as being directed to a pharmacist for a medicine prescription review or to a physio for back pain.

In doing so, we will make the most of the 25,000 more staff we now have in primary care. Today’s plans fund practices without this technology to adopt it, while also providing them with staff cover to help them manage a smooth transition into this technology. Indeed, many small GP practices find it hardest to fund new technology, or to manage the disruption that comes with transitioning to new ways of working, so we are funding locum cover alongside the tech itself. Notwithstanding that, people will always be able to walk in or ring if they prefer; if someone wants to ring up and see someone face to face, these investments will make that easier, too.

We also want to make sure that patients know how their request is going to be handled on the same day that they make contact. Clinically urgent issues will be assessed on the same day, or the next day if raised in the afternoon. If the issue is not urgent, an appointment will be scheduled within two weeks, but, crucially, people will not be asked to call back tomorrow. Instead, they will get their appointments booked on the same day or be signposted to other services.

The second area of this plan is Pharmacy First. As well as giving GPs new technology, I know that we need to take pressure off GPs where possible by making better use of the skills of all clinicians working in primary care. We saw the incredible role that pharmacists played during the pandemic—their capacity to innovate and deliver for the communities that they served, freeing up GP appointments in doing so—so the second part of our plan is to introduce a new NHS service, Pharmacy First, on which we are already consulting with the Pharmaceutical Services Negotiating Committee.

Some 80% of people live within a 20-minute walk of a pharmacy, so making it easier for pharmacists to take referrals can have a huge impact. Referrals might be from GPs, NHS 111 or, from next week, urgent and emergency care settings. Community pharmacists already take referrals for a range of minor conditions, such as diarrhoea, vomiting and conjunctivitis, but with our Pharmacy First approach we can go further still. We will invest up to £645 million over the next two years so that pharmacists can supply prescription-only medicines for common conditions, such as ear pain, UTIs and sore throats, without requiring a prescription from a GP.

One of the most significant shifts we are making is in oral contraception. Pharmacists can already manage the supply of contraception prescribed elsewhere; from later this year, they will also be able to start women on courses of oral contraception. This is another way in which we aim to reduce the barriers to women accessing contraception, in light of our women’s health strategy. Pharmacists will also be able to do more blood pressure checks, which is one of the most important risk factors for cardiovascular disease. Not only will those kinds of steps make it easier for people to get the care they need; we expect that they will release up to 10 million appointments a year by 2024-25.

The third part of our plan is about providing more staff and more appointments. We are making huge investments in our primary care workforce, and are on track to meet the manifesto commitment of 26,000 more primary care staff by next March, meaning that we have more pharmacists, physios and paramedics delivering appointments in primary care than ever before. In 2021, we hit our target of 4,000 people accepting GP training places, and our upcoming NHS workforce plan will set out how we will further expand GP training. We are also helping to retain senior GPs by reforming pension rules, lifting 9,000 GPs out of annual tax changes. These are the pension reforms that the British Medical Association welcomed, describing them as ‘significant’ and ‘decisive’ changes and citing them as ‘transformative for the NHS’.

As well as freeing up more staff time, our plan cuts bureaucracy, too, so that GPs spend less time on paperwork and more time caring for patients. We will remove unnecessary targets, improve communication between GPs and hospitals, and reduce the amount of non-GP work that GPs are being asked to do. For example, patients are often discharged from hospital without fit notes, meaning that they then have to go to their GP to get one. By the end of this year, NHS secondary care services, which understand those patient conditions better, will be able to issue fit notes, and we have streamlined the number of targets on primary care networks from 36 down to just five. Taken together, this work will free up around £37,000 per practice.

Today’s primary care recovery plan funds and empowers our GPs and pharmacists to do more, so that we can prevent ill health, keep cutting NHS waiting lists and improve that vital front door to the NHS for many millions of people. I commend this Statement to the House.”

19:12

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for reading out the Statement. No one can be in any doubt that patient access to primary care needs a great deal of recovering from the dire situation patients across the country find themselves in today. Millions of patients wait more than a month to see a GP—if they can get an appointment at all. Some 65% of the public think that access to GP services is getting worse, and over 40% report that they have to wait too long to see a GP. The 9 am rush and scramble to get an appointment, or even a response, is the reality for thousands of patients each day. Often, they are waiting in pain and discomfort, unable to go about their daily normal lives. While they wait, an illness goes undiagnosed and untreated, potentially getting ever more serious.

In today’s Statement the Government once again recognise the major role community pharmacies can play in relieving the pressure on GP appointments and primary care. As we have made clear, we fully support and welcome this extended role, including allowing pharmacies to provide prescriptions and routine health checks, and opening up more referral routes to NHS specialists, such as physios for back pain. However, only yesterday in the national media we heard that 670 community pharmacies have closed and the number of pharmacies across England is now the lowest since 2015, and about the impact caused by rising costs, major staff shortages and the 30% cut in government funding to date—all despite growing demand for services. The industry estimates a £1.1 billion funding shortfall each year, and that last year was the worst ever. Does the Minister acknowledge that, for many, today’s plan is too little too late when it comes to fixing the crisis in primary care?

The independent think tank the Health Foundation sums up the Government’s overall plan, saying that it

“falls well short of addressing the fundamental issues”

facing general practice. Of course, the key reason demand for GP services is so high is the sheer number of people on NHS waiting lists. The president of the Royal College of General Practitioners said recently:

“Patients are developing cancers and enduring so much pain that they cannot climb stairs”.


Do the Government acknowledge that, unless they urgently get a grip on waiting lists, the crisis in general practice will only deepen?

More phone lines and better mood music will not fix the fundamental issue: the shortage of GPs. Their numbers have been cut by 2,000 since 2015, and now the Government have abandoned their own target of 6,000 extra GPs by next year. The proposal to ease the current burden on hard-pressed GP reception staff with a £240 million investment in phone and call systems technology over the coming years is welcome, but does the Minister really think that this is a proportionate or urgent enough response to the scale of the crisis? Is the money for the new care navigator staff included in this funding? What role will these new staff play in GP surgeries? When will we have a detailed breakdown of how the overall funding will be spent, and when it will be allocated and delivered?

Even the Government’s own Benches in this House have accused them of being in total denial about the crisis facing community pharmacies. Much now needs to be discussed by the PSNC, the Department of Health and NHS England regarding the promised funding in the recovery plan, and to try to address the crisis; I hope the Minister will keep us as up to date as possible. Can he provide more detail on how the proposed new services for the seven common conditions and oral contraception are envisaged to operate and interface with GP and other primary care services?

Finally, we come back to the question of the all-important workforce plan—what else? We heard from the Minister in Questions today that he now thinks that spring runs to the end of June. On the radio today, the Commons Minister promised that we would have it in a couple of months. As with every other health and social care service and profession we speak about in this House, workforce is core. Pharmacy locum costs have increased by 80% in the past year alone. So I have two simple questions: why is the promised, fully costed workforce plan taking so long, and when will it finally be published?

[Lord Shipley (LD)]

My Lords, I support the comments made by the noble Baroness, Lady Wheeler, on the Statement. We on these Benches welcome the aspirational nature of what the Government are proposing. During the Covid pandemic, we all learned that community pharmacists play an absolutely key role in supporting the health system. In my personal experience of securing additional injections, I was very impressed by how well the whole NHS system worked in delivering the inoculation service through community pharmacies. One of the good things about it is that you can book a slot, in the same way you book a slot with a GP. However, for this to succeed—and to free up 30,000 GP slots, as the Government intend—booking an appointment with a pharmacist needs to be just as easy. We then need to be very clear about what pharmacists will do, and what GPs will no longer have a contractual obligation to do.

On the workforce shortages that have been referred to, it would help if the Minister could explain whether the manifesto commitment to deliver 26,000 more primary care staff by next March is deliverable. It is difficult to see how the Government will do that unless more money is made available, so I seek the Minister’s confirmation that more resource will be delivered on the back of this initiative to ensure that it happens.

I will ask the Minister three further questions. First, were patients of different backgrounds, genders and geographies involved in drawing up the plan, and can he outline the patient involvement? Secondly, is there sufficient qualified staff of all professions to deliver the multidisciplinary plan? Finally, as the noble Baroness, Lady Wheeler, asked, when does the Minister does expect the new plan to be up and running?

[Lord Markham (Con)]

I thank noble Lords for their comments and appreciate the general welcome for the tenets of the plan from all sides. I want to say that, rather than “too little, too late”, this is actually a plan that bolsters a service that is already on target for an increase of 50 million appointments from 2019—a service in which we are seeing a 10% increase per month versus pre-pandemic levels. I think that, on anyone’s reckoning, that is a pretty impressive achievement. The Pharmacy First plan that we talk about will free up another 10 million appointments a year in addition to that. Also, the use of digital technology will make it easier to get appointments and ensure that those who need them most can get them. It will ease the 8 am frustrations that we are all too aware of.

Addressing the comments on the pharmacy closures that have happened, this can only help pharmacists by increasing the income-generating services available to them and increasing the footfall into those pharmacies. This can only improve their income and so their overall viability. So I hope we will see, from all of this, an increase in the number of community pharmacies. To answer the point, we will be setting up booking systems so that you can digitally book your pharmacy appointment. Equally vital will be the use of the NHS app and other technologies, such as 111, to navigate through services, so you know when you should be booking an appointment with a doctor and when you should be booking it with a pharmacy. The use of technology will be a vital element in all that.

On the workforce, I absolutely acknowledge, as I think we all do, the importance of making sure we have the right workforce in place. That is why I think we are all pleased with and all supportive of the pension changes that will increase and retain the numbers of people. I am afraid I cannot give any more news on the date of the workforce announcement, but I can say that, as mentioned before, substantial work is going on in this place. Yes, we are committed to the increase of 26,000 staff, and this whole package has £1.2 billion of funding behind it, of which £645 million goes into the community Pharmacy First plan, because a vital part of all this, as noble Lords have said, is making sure that we have we have the qualified staff in place to do it.

So, I think we have a good plan here and it is probably best to hear what the industry has said. We have seen a welcome from across the board.

“This is the most significant investment in community pharmacy in well over a decade”


came from the Pharmaceutical Services Negotiating Committee. The Boots CEO said:

“We are really pleased … Our Boots pharmacy teams sit at the heart of communities, offering easy to access care and expert advice; it is great news that they’ll be able use their clinical expertise more widely to help patients”.


I really see this as a transformational step forward, united with the digital technology which will make huge differences. With that, I commend a plan that will make a real difference to patients and the services they receive from GPs in the community.

19:24

[Baroness Bottomley of Nettlestone (Con)]

My Lords, I commend this plan most warmly. It has long been said that family doctors are the jewel in the NHS crown, but of course there has been a total transformation in the primary care team: it is not simply family doctors but a much more complex team, and the frustration so many of them feel is that they work to the minimum of their ability rather than the maximum. As I understand this, it will enable people to work to the maximum of their skills and use their training to extremely good effect.

The other great difficulty is that patients want to be treated like partners—they want information, they want contact—so opening up the opportunity to use pharmacies far more is going to be extraordinarily important. Will my noble friend say a little more about the contribution of the NHS app? Obviously, it will take time for people to be really comfortable with it, but it seems to me that this could be a transformational component in releasing family services and making them more available.

[Lord Markham (Con)]

I thank my noble friend for her comments and completely agree that this plan is all about making sure that we are using our most skilled practitioners in the most effective way. We want to make sure that those people who really need to see a doctor get to see one when they need to, but that patients in need of other treatments that can be delivered by a community pharmacist, a nurse or some other medic, such as a physio, are seen by the right people. Fundamental to the navigation of all that is the use of technology and the NHS app, as my noble friend mentioned.

What I see is the app really helping inform people—giving them their patient records so they can do their own research and understand and take ownership of their own health. We all know that, just as we have seen in the space of banking and other areas, giving people ownership, so they can take control of their health, is fundamental. Once they are armed with that information, they can be helped to navigate to the point of most use. That is where I see fundamental change: it is an area where we will see such change in the way we all address our NHS services and look after our own health. I truly believe that it will be one of the most fundamental changes we will ever see in this space.

[Lord Boateng (Lab)]

My Lords, there is much in the Statement that is welcome, but I know from my own time, many years ago, as a very junior Minister in the Department of Health, but also more recently, as Chancellor of the University of Greenwich, with the role we play in the training of pharmacists, that small, independent community pharmacists have a real challenge in finding the space and capacity to provide advice and assistance to clients in conditions of sufficient privacy. What proposals will the Government come forward with, and with what funding, to assist the small independents—we are not talking about Boots and the big guys and gals but about the small independent pharmacists? What capital assistance is going to be provided to the small community pharmacists on our high streets who can potentially play such an important role, to enable them to structure their premises in a way that enables them to give the information that the Government are suggesting they should give in preference to GPs?

[Lord Markham (Con)]

The noble Lord makes a very good point. It is really making sure that the independents can play a very important role. It is, where necessary, making sure that whole-estate planning takes that into account. A lot of the work I have been doing with Minister O’Brien—he heads the GP space while I look after the capital space—is looking at how we can create the sorts of models where you can put pharmacies alongside GP surgeries, in many cases, and make sure that that capability is there. I freely admit that capital is at a premium within the system, so we have to be creative in the ways we use it, but the noble Lord is absolutely correct that this is a key way to make sure we have a network of independent pharmacies that can really serve their local community.

[Lord Bellingham (Con)]

My Lords, I thank the Minister for the Statement and put on record my gratitude to him and other junior Ministers who played a very important part in making sure that this initiative has been brought to fruition. I pay tribute to the local surgery in my own community in Norfolk, the Great Massingham and Docking surgery, where the receptionists are invariably incredibly patient and polite to everyone and the doctors are quite outstanding—they have a lot of very satisfied people in the community because of their attitude to local people who may have ailments. But, obviously, they are under pressure, and that is why I welcome the Government’s announcement on Pharmacy First and on recruiting new GPs. Can my noble friend tell the House whether the Government’s commitment to recruit an extra 6,000 GPs by the end of this Parliament is on course? Has the number of GPs in training increased? Can he just clarify those two points?

As the noble Lord, Lord Boateng, pointed out a moment ago, pharmacies are often at the centre of communities. Apart from anything else, pharmacists often have a really strong relationship with patients because they see them on a regular basis, understand their needs and see them consistently—which, unfortunately, is not always the case with doctors. That is why I support the Pharmacy First initiative, which could be a lifeline to a lot of pharmacies that are under pressure. They will be able to prescribe many more medicines, but can my noble friend tell the House whether they will be able to prescribe antibiotics for some of the conditions he mentioned? If that is the case, that would be a very positive extension to the services that they provide.

[Lord Markham (Con)]

I thank my noble friend. As evidence of the good work that receptionists do under trying circumstances, in a recent survey 91% of patients said that their needs were met. On the target of having 6,000 extra GPs by the end of this Parliament, currently we have increased the number by 2,000 but, in all honesty, I think the feeling is that we will struggle to meet the 6,000 target—I believe that is something that Sajid Javid, as Minister, said before. But there is a 50% increase in the number of graduate trainees since 2014, with more than 4,000 currently in training. So we have made steps in the right direction, albeit not as far as we would hope.

On the supply of antibiotics, the idea behind this is that there will be certain agreed treatments that the pharmacist will be able to give. Clearly, UTIs is an example where you often need antibiotics to clear those up, and in those circumstances there will be agreed treatments that pharmacists can give: provided that, in the pharmacist’s judgment, the symptoms warrant it, the pharmacist will be able to enable the supply of antibiotics. On all those, this is a very positive way forward.

[Lord Mann (Non-Afl)]

The Government’s housing policy is to build, or to have built, 300,000 new houses a year. Has that been factored into this announcement? Is it the Government’s view that these new houses are a problem for primary care provision, or can the Minister assure me that the funding formulas are sufficiently robust that new housing is seen as an opportunity for primary care?

[Lord Markham (Con)]

The noble Lord is quite correct to point out that, where you have a number of new houses in a local community, you need to make sure that there are primary care services to serve them as well. Funnily enough, just today I was having a conversation with Housing Minister Maclean on this very subject, about changing the way that we look at Section 106 payments—or CIL payments, as they are called these days—to make sure that the provision of the primary care estate is one of the key elements that can be funded through that. I know that DLUHC colleagues are very much on board with that, because absolutely fundamental to the point that the noble Lord makes is that we need to make sure that, alongside the new housing, which we all agree is very important, there are sufficient primary care services as well.

[Baroness Young of Old Scone (Lab)]

My Lords, I thank the Minister for the Statement but regret that it concentrates on more GP and other ancillary services to meet rising demand rather than focusing on the causes of that rising demand. A major source of pressure on GPs is due to the complications of diabetes, yet inadequate action is being taken on obesity, often in the face of pressures from the food lobby. Similarly, the Minister talked about the rising number of over-70s—I should declare an interest—yet much of that pressure is due to elderly people failing to get adequate social care and falling back on general practice because they have nowhere else to go. Yet, over the last 13 years, the Conservative Government have absolutely run away from any sort of reform agenda for social care. Will the Minister comment on whether new phones are going to plug even the short-term pressure, and will he tell us what sustained long-term solutions to managing down the demand for GP and other ancillary services his Government are thinking of?

[Lord Markham (Con)]

First, I completely agree with the noble Baroness’s point that prevention is better than cure—I think we would all subscribe to that—and that is what the Government’s manifesto pledge of five years’ more healthy life is all about. On how the app comes into that, it all comes down to people taking more control of their own health, such as by being able to receive reminders that it is time for their cervical smear or heart MoT, so that they can start to take ownership of their own health. Towards that, the community pharmacists have already provided 1 million blood pressure checks, through which 300,000 people were found to have high blood pressure. That is a prime example of where this expanded network really can get on to the prevention agenda, which we all agree is absolutely key to helping solve the health situation going forward.

19:36

Sitting suspended.

Online Safety Bill

Committee stage
Tuesday 9th May 2023 Lords Chamber

Committee (5th Day) (Continued)

19:42

Clause 12: User empowerment duties

Debate on Amendment 38 resumed.

[Baroness Buscombe (Con)]

My Lords, before we continue this debate, I want to understand why we have changed the system so that we break part way through a group of amendments. I am sorry, but I think this is very poor. It is definitely a retrograde step. Why are we doing it? I have never experienced this before. I have sat here and waited for the amendment I have just spoken to. We have now had a break; it has broken the momentum of that group. It was even worse last week, because we broke for several days half way through the debate on an amendment. This is unheard of in my memory of 25 years in this House. Can my noble friend the Minister explain who made this decision, and how this has changed?

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

I have not had as long in your Lordships’ House, but this is not unprecedented, in my experience. These decisions are taken by the usual channels; I will certainly feed that back through my noble friend. One of the difficulties, of course, is that because there are no speaking limits on legislation and we do not know how many people want to speak on each amendment, the length of each group can be variable, so I think this is for the easier arrangement of dinner-break business. Also, for the dietary planning of those of us who speak on every group, it is useful to have some certainty, but I do appreciate my noble friend’s point.

[Baroness Buscombe (Con)]

Okay; I thank my noble friend for his response. However, I would just say that we never would have broken like that, before 7.30 pm. I will leave it at that, but I will have a word with the usual channels.

[Baroness Kidron (CB)]

My Lords, I rise to speak to Amendments 141 and 303 in the name of the noble Lord, Lord Stevenson. Before I do, I mention in passing how delighted I was to see Amendment 40, which carries the names of the Minister and the noble Lord, Lord Stevenson—may there be many more like that.

I am concerned that without Amendments 141 and 303, the concept of “verified” is not really something that the law can take seriously. I want to ask the Minister two rather technical questions. First, how confident can the Government and Ofcom be that with the current wording, Ofcom could form an assessment of whether Twitter’s current “verified by blue” system satisfies the duty in terms of robustness? If it does not, does Ofcom have the power to send it back to the drawing board? I am sure noble Lords understand why I raise this: we have recently seen “verified by blue” ticks successfully bought by accounts impersonating Martin Lewis, US Senators and Putin propagandists. My concern is that in the absence of a definition of verification in the Bill such as the one proposed in Amendments 141 and 303, where in the current wording does Ofcom have the authority to say that “verified by blue” does not satisfy the user verification duty?

19:45

My second question is similar. We see now around the world—it is not available in the UK—that Meta has a verified subscription, for which you can pay around $15 per month. It is being piloted in the US as we speak. Again, I ask whether that satisfies the duty in terms of it being affordable to the average UK user. I am concerned that most UK social media users will not be able to afford £180 per social media account for verification. If that ends up being Meta’s UK offering, many users would not be given a proper, meaningful chance to be verified. What powers are there in the Bill for Ofcom to send Meta back and offer something else? So my questions really are about what “verified” means in terms of the Bill.

[Baroness Bull (CB)]

My Lords, I rise to speak to Amendment 141 in the names of the noble Lords, Lord Stevenson and Lord Clement-Jones. Once again, I register the support of my noble friend Lady Campbell of Surbiton, who feels very strongly about this issue.

Of course, there is value in transparency online, but anonymity can be vital for certain groups of people, such as those suffering domestic abuse, those seeking help or advice on matters they wish to remain confidential, or those who face significant levels of hatred or prejudice because of who they are, how they live or what they believe in. Striking the right balance is essential, but it is equally important that everyone who wishes to verify their identity and access the additional protections that this affords can do so easily and effectively, and that this opportunity is open to all.

Clause 57 requires providers of category 1 services to offer users the option to verify their identity, but it is up to providers to decide what form of verification to offer. Under subsection (2) it can be “of any kind”, and it need not require any documentation. Under subsection (3), the terms of service must include a “clear and accessible” explanation of how the process works and what form of verification is available. However, this phrase in itself is open to interpretation: clear and accessible for one group may be unclear and inaccessible to another. Charities including Mencap are concerned that groups, such as people with a learning disability, could be locked out of using these tools.

It is also relevant that people with a learning disability are less likely to own forms of photographic ID such as passports or driving licences. Should a platform require this type of ID, large numbers of people with a learning disability would be denied access. In addition, providing an email or phone number and verifying this through an authentication process could be extremely challenging for those people who do not have the support in place to help them navigate this process. This further disadvantages groups of people who already suffer some of the most extensive restrictions in living their everyday lives.

Clause 58 places a duty on Ofcom to provide guidance to help providers comply with their duty, but this guidance is optional. Amendment 141 aims to strengthen Clause 58 by requiring Ofcom to set baseline principles and standards for the guidance. It would ensure, for example, that the guidance considers accessibility for disabled as well as vulnerable adults and aligns with relevant guidance on related matters such as age verification; it would ensure that verification processes are effective; and it would ensure that the interests of disabled users are covered in Ofcom’s pre-guidance consultation.

Online can be a lifeline for disabled and vulnerable adults, providing access to support, advice and communities of interest, and this is particularly important as services in the real world are diminishing, so we need to ensure that user-verification processes do not act as a further barrier to inclusion for people with protected characteristics, especially those with learning disabilities.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the speech of the noble Baroness, Lady Buscombe, raised so many of the challenges that people face online, and I am sure that the masses who are watching parliamentlive as we speak, even if they are not in here, will recognise what she was talking about. Certainly, some of the animal rights activists can be a scourge, but I would not want to confine this to them, because I think trashing reputations online and false allegations have become the activists’ chosen weapon these days. One way that I describe cancel culture, as distinct from no-platforming, is that it takes the form of some terrible things being said about people online, a lot of trolling, things going viral and using the online world to lobby employers to get people sacked, and so on. It is a familiar story, and it can be incredibly unpleasant. The noble Baroness and those she described have my sympathy, but I disagree with her remedy.

An interesting thing is that a lot of those activities are not carried out by those who are anonymous. It is striking that a huge number of people with large accounts, well-known public figures with hundreds of thousands of followers—sometimes with more than a million—are prepared to do exactly what I described in plain sight, often to me. I have thought long and hard about this, because I really wanted to use this opportunity to read out a list and name and shame them, but I have decided that, when they go low, I will try to go at least a little higher. But subtweeting and twitchhunts are an issue, and one reason why we think we need an online harms Bill. As I said, I know that sometimes it can feel that if people are anonymous, they will say things that they would not say to your face or if you knew who they were, but I think it is more the distance of being online: even when you know who they are, they will say it to you or about you online, and then when you see them at the drinks reception, they scuttle away.

My main objection, however, to the amendment of the noble Baroness, Lady Buscombe, and the whole question of anonymity in general is that it treats anonymity as though it is inherently unsafe. There is a worry, more broadly on verification, about creating two tiers of users: those who are willing to be verified and those who are not, and those who are not somehow having a cloud of suspicion over them. There is a danger that undermining online anonymity in the UK could set a terrible precedent, likely to be emulated by authoritarian Governments in other jurisdictions, and that is something we must bear in mind.

On evidence, I was interested in Big Brother Watch’s report on some analysis by the New Statesman, which showed that there is little evidence to suggest that anonymity itself makes online discourse more febrile. It did an assessment involving tweets sent to parliamentarians since January 2021, and said there was

“little discernible difference in the nature or tone of the tweets that MPs received from anonymous or non-anonymous accounts. While 32 per cent of tweets from anonymous accounts were classed as angry according to the metric used by the New Statesman, so too were 30 per cent of tweets from accounts with full names attached.18 Similarly, 5.6 per cent of tweets from anonymous accounts included swear words, only slightly higher than the figure of 5.3 per cent for named accounts.”

It went through various metrics, but it said, “slightly higher, not much of a difference”. That is to be borne in mind: the evidence is not there.

In this whole debate, I have wanted to emphasise freedom as at least equal to, if not of greater value than, the safetyism of this Bill, but in this instance, I will say that, as the noble Baroness, Lady Bull, said, for some people anonymity is an important safety mechanism. It is a tool in the armoury of those who want to fight the powerful. It can be anyone: for young people experimenting with their sexuality and not out, it gives them the freedom to explore that. It can be, as was mentioned, survivors of sexual violence or domestic abuse. It is certainly crucial to the work of journalists, civil liberties activists and whistleblowers in the UK and around the world. Many of the Iranian women’s accounts are anonymous: they are not using their correct names. The same is true of Hong Kong activists; I could go on.

Anyway, in our concerns about the Bill, compulsory identity verification means being forced to share personal data, so there is a privacy issue for everyone, not just the heroic civil liberties people. In a way, it is your own business why you are anonymous—that is the point I am trying to make.

There are so many toxic issues at the moment that a lot of people cannot just come out. I know I often mention the gender-critical issue, but it is true that in many professions, you cannot give your real name or you will not just be socially ostracised but potentially jeopardise your career. I wrote an article during the 2016-17 days called Meet the Secret Brexiteers. It was true that many teachers and professors I knew who voted to leave had to be anonymous online or they would not have survived the cull.

Finally, I do not think that online anonymity or pseudonymity is a barrier to tracking down and prosecuting those who commit the kind of criminal activity on the internet described, creating some of the issues we are facing. Police reports show that between 2017-18, 96% of attempts by public authorities to identify anonymous users of social media accounts, their email addresses and telephone numbers, resulted in successful identification of the suspect in the investigation; in other words, the police already have a range of intrusive powers to track down individuals, should there be a criminal problem, and the Investigatory Powers Act 2016 allows the police to acquire communications data—for example, email addresses or the location of a device—from which alleged illegal anonymous activity is conducted and use it as evidence in court.

If it is not illegal but just unpleasant, I am afraid that is the world we live in. I would argue that what we require in febrile times such as these is not bans or setting the police on people but to set the example of civil discourse, have more speech and show that free speech is a way of conducting disagreement and argument without trashing reputations.

[Lord Clement-Jones (LD)]

My Lords, what an unusually reticent group we have here for this group of amendments. I had never thought of the noble Baroness, Lady Fox, as being like Don Quixote, but she certainly seems to be tilting at windmills tonight.

I go back to the Joint Committee report, because what we said there is relevant. We said:

“Anonymous abuse online is a serious area of concern that the Bill needs to do more to address. The core safety objectives apply to anonymous accounts as much as identifiable ones. At the same time, anonymity and pseudonymity are crucial to online safety for marginalised groups, for whistleblowers, and for victims of domestic abuse and other forms of offline violence. Anonymity and pseudonymity themselves are not the problem and ending them would not be a proportionate response”.


We were very clear; the Government’s response on this was pretty clear too.

We said:

“The problems are a lack of traceability by law enforcement, the frictionless creation and disposal of accounts at scale, a lack of user control over the types of accounts they engage with and a failure of online platforms to deal comprehensively with abuse on their platforms”.


We said there should be:

“A requirement for the largest and highest risk platforms to offer the choice of verified or unverified status and user options on how they interact with accounts in either category”.


Crucially for these amendments, we said:

“We recommend that the Code of Practice also sets out clear minimum standards to ensure identification processes used for verification protect people’s privacy—including from repressive regimes or those that outlaw homosexuality”.


We were very clear about the difference between stripping away anonymity and ensuring that verification was available where the user wanted to engage only with those who had verified themselves. Requiring platforms to allow users—

20:00

[Baroness Buscombe (Con)]

I am sorry to interrupt the noble Lord, but I would like to ask him whether, when the Joint Committee was having its deliberations, it ever considered, in addition to people’s feelings and hurt, their livelihoods.

[Lord Clement-Jones (LD)]

Of course. I think we looked at it in the round and thought that stripping away anonymity could in many circumstances be detrimental to those, for instance, working in hostile regimes or regimes where human rights were under risk. We considered a whole range of things, and the whole question about whether you should allow anonymity is subject to those kinds of human rights considerations.

I take the noble Baroness’s point about business, but you have to weigh up these issues, and we came around the other side.

[Baroness Buscombe (Con)]

Does the noble Lord not think that many people watching and listening to this will be thinking, “So people in far-off regimes are far more important than I am—I who live, work and strive in this country”? That is an issue that I think was lacking through the whole process and the several years that this Bill has been discussed. Beyond being hurt, people are losing their livelihoods.

[Lord Clement-Jones (LD)]

I entirely understand what the noble Baroness is saying, and I know that she feels particularly strongly about these issues given her experiences. The whole Bill is about trying to weigh up different aspects—we are on day 5 now, and this has been very much the tenor of what we are trying to talk about in terms of balance.

[Baroness Kidron (CB)]

I want to reassure the noble Baroness that we did discuss anonymity in relation to the issues that she has put forward. A company should not be able to use anonymity as an excuse not to deal with the situation, and that is slightly different from simply saying, “We throw our hands up on those issues”.

There was a difference between the fact that companies are using anonymity to say, “We don’t know who it is, and therefore we can’t deal with it”, and the idea that they should take action against people who are abusing the system and the terms of service. It is subtle, but it is very meaningful in relation to what the noble Baroness is suggesting.

[Lord Clement-Jones (LD)]

That is a very fair description. We have tried to emphasise throughout the discussion on the Bill that it is about not just content but how the system and algorithms work in terms of amplification. In page 35 of our report, we try to address some of those issues—it is not central to the point about anonymity, but we certainly talked about the way that messages are driven by the algorithm. Obviously, how that operates in practice and how the Bill as drafted operates is what we are kicking the tyres on at the moment, and the noble Baroness is absolutely right to do that.

The Government’s response was reasonably satisfactory, but this is exactly why this group explores the definition of verification and so on, and tries to set standards for verification, because we believe that there is a gap in all this. I understand that this is not central to the noble Baroness’s case, but—believe me—the discussion of anonymity was one of the most difficult issues that we discussed in the Joint Committee, and you have to fall somewhere in that discussion.

Requiring platforms to allow users to see other users’ verification status is a crucial further pillar to user empowerment, and it provides users with a key piece of information about other users. Being able to see whether an account is verified would empower victims of online abuse or threats—I think this partly answers the noble Baroness’s question—to make more informed judgments about the source of the problem, and therefore take more effective steps to protect themselves. Making verification status visible to all users puts more choice in their hands as to how they manage the higher risks associated with non-verified and anonymous accounts, and offers them a lighter-touch alternative to filtering out all non-verified users entirely.

We on these Benches support the amendments that have been put forward. Amendment 141 aims to ensure that a user verification duty delivers in the way that the public and Government hope it will—by giving Ofcom a clear remit to require that the verification systems that platforms are required to develop in response to the duty are sufficiently rigorous and accessible to all users.

I was taken by what the noble Baroness, Lady Bull, said, particularly the case for Ofcom’s duties as regards those with disabilities. We need Ofcom to be tasked with setting out the principles and minimum standards, because otherwise platforms will try to claim, as verification, systems that do not genuinely verify a user’s identity, are unaffordable to ordinary users or use their data inappropriately.

Likewise, we support Amendment 303, which would introduce a definition of “user identity verification” into the Bill to ensure that we are all on the same page. In Committee in the House of Commons, Ministers suggested that “user identity verification” is an everyday term so does not need a definition. This amendment, which no doubt the noble Baroness, Lady Merron, will speak to in more detail, is bang on point as far as that is concerned. That was not a convincing answer, and that is why this amendment is particularly apt.

I heard what the noble Baroness, Lady Buscombe, had to say, but in many ways the amendment in the previous group in the name of the noble Lord, Lord Knight, met some of the noble Baroness’s concerns. As regards the amendment in the name of the noble Lord, Lord Moylan, we are all Wikipedia fans, so we all want to make sure that there is no barrier to Wikipedia operating successfully. I wonder whether perhaps the noble Lord is making quite a lot out of the Wikipedia experience, but I am sure the Minister will enlighten us all and will have a spot-on response for him.

[Baroness Merron (Lab)]

My Lords, I am pleased to speak on this group of amendments, and I will particularly address the amendments in the name of my noble friend Lord Stevenson. To start with the very positive, I am very grateful to the Minister for signing Amendment 40 —as has already been commented, this is hopefully a sign of things to come. My observation is that it is something of a rarity, and I am containing my excitement as it was agreement over one word, “effectively”. Nevertheless, it is very welcome support.

These amendments aim to make it clearer to users whether those whom they interact with are verified or non-verified, with new duties backed up by a set of minimum standards, to be reflected in Ofcom’s future guidance on the user verification duty, with standards covering—among other things—privacy and data protection. The noble Lord, Lord Clement-Jones, helpfully referred your Lordships’ House to the report of the Joint Committee and spent some useful time on the challenges over anonymity. As is the case with so many issues on other Bills and particularly on this one, there is a balance to be struck. Given the proliferation of bots and fake profiles, we must contemplate how to give confidence to people that they are interacting with real users.

Amendment 141 tabled by my noble friend Lord Stevenson and supported by the noble Lord, Lord Clement- Jones, requires Ofcom to set a framework of principles and minimum standards for the user verification duty. The user verification duty is one of the most popular changes to be made to the Bill following the pre-legislative scrutiny process and reflects a recommendation of the Joint Committee. Why is it popular? Because the public understand that the current unregulated approach by social media platforms is a major enabler of harmful online behaviour. Anonymous accounts are more likely to engage in abuse or harassment and, for those at the receiving end, threats from anonymous accounts can feel even more frightening, while the chances are lower of any effective enforcement from the police or platforms.

As we know, bad actors use networks of fake accounts to peddle disinformation and divisive conspiracy theories. I am sure that we will come back to this in later groups. This amendment aims to ensure that the user verification duty delivers in the way that the public and the Government hope that it will. It requires that the systems which platforms develop in response to the duty are sufficiently rigorous and accessible to all users.

The noble Baroness, Lady Kidron, talked about affordability, something that I would like to amplify. There will potentially be platforms which try to claim that verification systems somehow genuinely verify a user’s identity when they do not, or they will be unaffordable to ordinary users, as the noble Baroness said, or data will be used inappropriately. This is not theoretical. She referred to the Meta-verified product, which looks like it might be more rigorous, but at a cost of $180 per year per account, which will not be within the grasp of many people. Twitter is now also selling blue ticks of verification for $8, including a sale to those who are scamming, impersonating, and who are propagandists for figures in our world such as Putin. This amendment future-proofs and allows flexibility. It will not tie the hands of either the regulator or the platforms. Therefore, I hope that it can find some favour with the Minister.

In Amendment 303, again tabled by my noble friend Lord Stevenson and supported by the noble Lord, Lord Clement-Jones, there is an addition of the definition of “user identity verification”. I agree with the noble Lord about how strange it was that, in Committee in the Commons, Ministers felt that user identity verification was somehow an everyday term which did not need definition. I dispute that. It is no better left to common sense than any other terms that we do have definitions for in Clause 207—for example, “age assurance”, “paid-for advertisement” and “terms of service”. All these get definitions. Surely it is very wise to define user identity verification.

20:15

Without definition, there is obviously scope for dispute about how verification is defined. As we heard earlier in Committee, a dispute over what something means only creates the conditions for uncertainty, delay and legal costs. Therefore, I hope that we can see a brief definition that provides clarity for regulators and platforms and reduces the potential for disputes and enforcement delays. If we could rely on platforms to operate in good faith, in the interests of all of us, we would not even need the Bill.

Amendment 41, again tabled by my noble friend Lord Stevenson and supported by the noble Lord, Lord Clement-Jones, would require category 1 services to make visible to users whether another user is verified or non-verified. There is already a duty to allow users to be verified and to allow all users to filter out interaction with unverified accounts, but these duties must be—to use that word again—effective.

In cases of fraud, we well know that online scammers rely heavily on deceptive fake accounts, often backed up by reviews from other fake accounts, and that they will think twice about going through any credible verification process because it will make them more traceable. So a simple and clear piece of advice, if we become able to use it, would be to check if the user you are interacting with is verified. That would be powerful advice for consumers to help them avoid fraud.

In the case of disinformation—again, something we will return to in a later group—bad actors, including foreign Governments, are setting up networks of fake accounts which make all sorts of false claims about their identity: maybe that they are a doctor, a British Army veteran or an expert in vaccines. We have seen and heard them all. We ask the public to check the source of the information they read, and that would be a lot easier if it was obvious who is verified and who is not. For those who are subject to online abuse or threats, being able to see if an account is verified would empower them to make more informed decisions about the source of the problem, and therefore to take more definitive steps to protect themselves.

It is absolutely right, as the noble Baronesses, Lady Bull and Lady Fox, outlined, that there are very legitimate reasons why some people do not want their identity shared when they are using a service. This issue was raised with me by a number of young people that I, like other noble Lords, had the opportunity to speak to at a meeting organised by the NSPCC. They explained how they experienced the online world and how they wanted to be able to use it, but there are times when they need to protect their identity in order to benefit from using it and to explore various aspects of themselves, and I believe we should enable that protection.

Amendments in this group from the noble Lord, Lord Moylan, bring us back to previous debates on crowdsourced sites such as Wikipedia, so I will not repeat the same points made in previous debates, but I feel sure that the Minister will provide the reassurance that the noble Lord seeks, and we all look forward to it.

I have a question for the Minister in concluding my comments on this group. Could he confirm whether, under the current provisions, somebody’s full name would have to be publicly displayed for the verification duty to have been met, or could they use a pseudonym or a generic username publicly, with verification having taken place in a private and secure manner? I look forward to hearing from the Minister.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the range of the amendments in this group indicates the importance of the Government’s approach to user verification and non-verified user duties. The way these duties have been designed seeks to strike a careful balance between empowering adults while safeguarding privacy and anonymity.

Amendments 38, 39, 139 and 140 have been tabled by my noble friend Lord Moylan. Amendments 38 and 39 seek to remove subsections (6) and (7) of the non-verified users’ duties. These place a duty on category 1 platforms to give adult users the option of preventing non-verified users interacting with their content, reducing the likelihood that a user sees content from non-verified users. I want to be clear that these duties do not require the removal of legal content from a service and do not impinge on free speech.

In addition, there are already existing duties in the Bill to safeguard legitimate online debate. For example, category 1 services will be required to assess the impact on free expression of their safety policies, including the impact of their user empowerment tools. Removing subsections (6) and (7) of Clause 12 would undermine the Bill’s protection for adult users of category 1 services, especially the most vulnerable. It would be entirely at the service provider’s discretion to offer users the ability to minimise their exposure to anonymous and abusive users, sometimes known as trolls. In addition, instead of mandating that users verify their identity, the Bill gives adults the choice. On that basis, I am confident that the Bill already achieves the effect of Amendment 139.

Amendment 140 seeks to reduce the amount of personal data transacted as part of the verification process. Under subsection (3) of Clause 57, however, providers will be required to explain in their terms of service how the verification process works, empowering users to make an informed choice about whether they wish to verify their identity. In addition, the Bill does not alter the UK’s existing data protection laws, which provide people with specific rights and protections in relation to the processing of their personal data. Ofcom’s guidance in this area will reflect existing laws, ensuring that users’ data is protected where personal data is processed. I hope my noble friend will therefore be reassured that these duties reaffirm the concept of choice and uphold the importance of protecting personal data.

While I am speaking to the questions raised by my noble friend, I turn to those he asked about Wikipedia. I have nothing further to add to the comments I made previously, not least that it is impossible to pre-empt the assessments that will be made of which services fall into which category. Of course, assessments will be made at the time, based on what the services do at the time of the assessment, so if he will forgive me, I will not be drawn on particular services.

To speak in more general terms, category 1 services are those with the largest reach and the greatest influence over public discourse. The Bill sets out a clear process for determining category 1 providers, based on thresholds set by the Secretary of State in secondary legislation following advice from Ofcom. That is to ensure that the process is objective and evidence based. To deliver this advice, Ofcom will undertake research into the relationship between how quickly, easily and widely user-generated content is disseminated by that service, the number of users and functionalities it has and other relevant characteristics and factors.

[Lord Moylan (Con)]

Will my noble friend at least confirm what he said previously: namely, that it is the Government’s view—or at least his view—that Wikipedia will not qualify as a category 1 service? Those were the words I heard him use at the Dispatch Box.

[Lord Parkinson of Whitley Bay (Con)]

That is my view, on the current state of play, but I cannot pre-empt an assessment made at a point in the future, particularly if services change. I stand by what I said previously, but I hope my noble friend will understand if I do not elaborate further on this, at the risk of undermining the reassurance I might have given him previously.

Amendments 40, 41, 141 and 303 have been tabled by the noble Lord, Lord Stevenson of Balmacara, and, as noble Lords have noted, I have added my name to Amendment 40. I am pleased to say that the Government are content to accept it. The noble Baroness, Lady Merron, should not minimise this, because it involves splitting an infinitive, which I am loath to do. If this is a statement of intent, I have let that one go, in the spirit of consensus. Amendment 40 amends Clause 12(7) to ensure that the tools which will allow adult users to filter out content from non-verified users are effective and I am pleased to add my name to it.

Amendment 41 seeks to make it so that users can see whether another user is verified or not. I am afraid we are not minded to accept it. While I appreciate the intent, forcing users to show whether they are verified or not may have unintended consequences for those who are unable to verify themselves for perfectly legitimate reasons. This risks creating a two-tier system online. Users will still be able to set a preference to reduce their interaction with non-verified users without making this change.

Amendment 141 seeks to prescribe a set of principles and standards in Ofcom’s guidance on user verification. It is, however, important that Ofcom has discretion to determine, in consultation with relevant persons, which principles will have the best outcomes for users, while ensuring compliance with the duties. Further areas of the Bill also address several issues raised in this amendment. For example, all companies in scope will have a specific legal duty to have effective user reporting and redress mechanisms.

Existing laws also ensure that Ofcom’s guidance will reflect high standards. For example, it is a general duty of Ofcom under Section 3 of the Communications Act 2003 to further the interests of consumers, including by promoting competition. This amendment would, in parts, duplicate existing duties and undermine Ofcom’s independence to set standards on areas it deems relevant after consultation with expert groups.

Amendment 303 would add a definition of user identity verification. The definition it proposes would result in users having to display their real name online if they decide to verify themselves. In answer to the noble Baroness’s question, the current requirements do not specify that users must display their real name. The amendment would have potential safety implications for vulnerable users, for example victims and survivors of domestic abuse, whistleblowers and others of whom noble Lords have given examples in their contributions. The proposed definition would also create reliance on official forms of identification. That would be contrary to the existing approach in Clause 57 which specifically sets out that verification need not require such forms of documentation.

The noble Baroness, Lady Kidron, talked about paid-for verification schemes. The user identity verification provisions were brought in to ensure that adult users of the largest services can verify their identity if they so wish. These provisions are different from the blue tick schemes and others currently in place, which focus on a user’s status rather than verifying their identity. Clause 57 specifically sets out that providers of category 1 services will be required to offer all adult users the option to verify their identity. Ofcom will provide guidance for user identity verification to assist providers in complying with these duties. In doing so, it will consult groups that represent the interests of vulnerable adult users. In setting out recommendations about user verification, Ofcom must have particular regard to ensuring that providers of category 1 services offer users a form of identity verification that is likely to be available to vulnerable adult users. Ofcom will also be subject to the public sector equality duty, so it will need to take into account the ways in which people with certain characteristics may be affected when it performs this and all its duties under the Bill.

A narrow definition of identity verification could limit the range of measures that service providers might offer their users in the future. Under the current approach, Ofcom will produce and publish guidance on identity verification after consulting those with technical expertise and groups which represent the interests of vulnerable adult users.

20:30

[Baroness Kidron (CB)]

I am sorry to interrupt the noble Lord. Is the answer to my question that the blue tick and the current Meta system will not be considered as verification under the terms of the Bill? Is that the implication of what he said?

[Lord Parkinson of Whitley Bay (Con)]

Yes. The blue tick is certainly not identity verification. I will write to confirm on Meta, but they are separate and, as the example of blue ticks and Twitter shows, a changing feast. That is why I am talking in general terms about the approach, so as not to rely too much on examples that are changing even in the course of this Committee.

Government Amendment 43A stands in my name. This clarifies that “non-verified user” refers to users whether they are based in the UK or elsewhere. This ensures that, if a UK user decides he or she no longer wishes to interact with non-verified users, this will apply regardless of where they are based.

Finally, Amendment 106 in the name of my noble friend Lady Buscombe would make an addition to the online safety objectives for regulated user-to-user services. It would amend them to make it clear that one of the Bill’s objectives is to protect people from communications offences committed by anonymous users.

The Bill already imposes duties on services to tackle illegal content. Those duties apply across all areas of a service, including the way it is designed and operated. Platforms will be required to take measures—for instance, changing the design of functionalities, algorithms, and other features such as anonymity—to tackle illegal content.

Ofcom is also required to ensure that user-to-user services are designed and operated to protect people from harm, including with regard to functionalities and other features relating to the operation of their service. This will likely include the use of anonymous accounts to commit offences in the scope of the Bill. My noble friend’s amendment is therefore not needed. I hope she will be satisfied not to press it, along with the other noble Lords who have amendments in this group.

[Lord Moylan (Con)]

My Lords, I would like to say that that was a rewarding and fulfilling debate in which everyone heard very much what they wanted to hear from my noble friend the Minister. I am afraid I cannot say that. I think it has been one of the most frustrating debates I have been involved in since I came into your Lordships’ House. However, it gave us an opportunity to admire the loftiness of manner that the noble Lord, Lord Clement-Jones, brought to dismissing my concerns about Wikipedia—that I was really just overreading the whole thing and that I should not be too bothered with words as they appear in the Bill because the noble Lord thinks that Wikipedia is rather a good thing and why is it not happy with that as a level of assurance?

I would like to think that the Minister had dealt with the matter in the way that I hoped he would, but I do thin, if I may say so, that it is vaguely irresponsible to come to the Dispatch Box and say, “I don’t think Wikipedia will qualify as a category 1 service”, and then refuse to say whether it will or will not and take refuge in the process the Bill sets up, when at least one Member of the House of Lords, and possibly a second in the shape of the noble Lord, Lord Clement-Jones, would like to know the answer to the question. I see a Minister from the business department sitting on the Front Bench with my noble friend. This is a bit like throwing a hand grenade into a business headquarters, walking away and saying, “It was nothing to do with me”. You have to imagine what the position is like for the business.

We had a very important amendment from my noble friend Lady Buscombe. I think we all sympathise with the type of abuse that she is talking about—not only its personal effects but its deliberate business effects, the deliberate attempt to destroy businesses. I say only that my reading of her Amendment 106 is that it seeks to impose on Ofcom an objective to prevent harm, essentially, arising from offences under Clauses 160 and 162 of the Bill committed by unverified or anonymous users. Surely what she would want to say is that, irrespective of verification and anonymity, one would want action taken against this sort of deliberate attempt to undermine and destroy businesses. While I have every sympathy with her amendment, I am not entirely sure that it relates to the question of anonymity and verification.

Apart from that, there were in a sense two debates going on in parallel in our deliberations. One was to do with anonymity. On that question, I think the noble Lord, Lord Clement-Jones, put the matter very well: in the end, you have to come down on one side or the other. My personal view, with some reluctance, is that I have come down on the same side as the Government, the noble Lord and others. I think we should not ban anonymity because there are costs and risks to doing so, however satisfying it would be to be able to expose and sue some of the people who say terrible and untrue things about one another on social media.

The more important debate was not about anonymity as such but about verification. We had the following questions, which I am afraid I do not think were satisfactorily answered. What is verification? What does it mean? Can we define what verification is? Is it too expensive? Implicitly, should it be available for free? Is there an obligation for it to be free or do the paid-for services count, and what happens if they are so expensive that one cannot reasonably afford them? Is it real, in the sense that the verification processes devised by the various platforms genuinely provide verification? Various other questions like that came up but I do not think that any of them was answered.

I hate to say this as it sounds a little harsh about a Government whom I so ardently support, but the truth is that the triple shield, also referred to as a three-legged stool in our debate, was hastily cobbled together to make up for the absence of legal but harmful, but it is wonky; it is not working, it is full of holes and it is not fit for purpose. Whatever the Minister says today, there has to be a rethink before he comes back to discuss these matters at the next stage of the Bill. In the meantime, I beg leave to withdraw my amendment.

Amendment 38 withdrawn.

Amendments 38A and 39 not moved.

Amendment 40

Moved by

[Lord Stevenson of Balmacara]

40: Clause 12, page 12, line 27, after “to” insert “effectively”
Member’s explanatory statement
This amendment would bring this subsection into line with subsection (3) by requiring that the systems or processes available to users for the purposes described in subsections (7)(a) and (7)(b) should be effective.

Amendment 40 agreed.

Amendments 41 to 43ZA not moved.

Amendment 43A

Moved by

[Lord Parkinson of Whitley Bay]

43A: Clause 12, page 13, line 20, leave out from “who” to end of line 21 and insert “—
(a) is an individual, whether in the United Kingdom or outside it, and(b) has not verified their identity to the provider of a service;”Member’s explanatory statement
This amendment makes it clear that the term “non-verified user” in clause 12 (user empowerment duties) refers to individuals and includes users outside the United Kingdom.

Amendment 43A agreed.

Amendments 44 and 45 not moved.

Clause 12, as amended, agreed.

Amendment 46

Moved by

[Baroness Stowell of Beeston]

46: After Clause 12, insert the following new Clause—
“Adult risk assessment duties
(1) This section sets out the duties about risk assessments in respect of adult users which apply in relation to Category 1 services.(2) A duty to carry out a suitable and sufficient adults’ risk assessment.(3) A duty to take appropriate steps to keep an adults’ risk assessment up to date, including when OFCOM make any significant change to a risk profile that relates to services of the kind in question.(4) Before making any significant change to any aspect of a service’s design or operation, a duty to carry out a further suitable and sufficient adults’ risk assessment relating to the impacts of that proposed change.(5) An “adults’ risk assessment” of a service of a particular kind means an assessment of the following matters, taking into account the risk profile that relates to services of that kind—(a) the user base;(b) the level of risk of adults who are users of the service encountering, by means of the service, each kind of content specified in section 12(10) to (12), taking into account (in particular) algorithms used by the service, and how easily, quickly and widely content may be disseminated by means of the service;(c) the level of risk of functionalities of the service, including user empowerment tools, which facilitate the presence, identification, dissemination, and likelihood of users encountering or being alerted to, content specified in section 12(10) to (12);(d) the extent to which user empowerment tools might result in interference with users’ right to freedom of expression within the law (see section 18);(e) how the design and operation of the service (including the business model, governance, use of proactive technology, measures to promote users’ media literacy and safe use of the service, and other systems and processes) may reduce or increase the risks identified.”Member’s explanatory statement
This and other amendments in the name of Baroness Stowell relate to risk assessments for adults in relation to platforms’ new duties to provide user empowerment tools. They would require platforms to provide public risk assessments in their terms of service and be transparent about the effect of user empowerment tools on users’ freedom of expression.

[Baroness Stowell of Beeston (Con)]

My Lords, in introducing this group, I will speak directly to the three amendments in my name—Amendments 46, 47 and 64. I will also make some general remarks about the issue of freedom of speech and of expression, which is the theme of this group. I will come to these in a moment.

The noble Lord, Lord McNally, said earlier that I had taken my amendments out of a different group— I hope from my introductory remarks that it will be clear why—but, in doing so, I did not realise that I would end up opening on this group. I offer my apologies to the noble Lord, Lord Stevenson of Balmacara, for usurping his position in getting us started.

I am grateful to the noble Baronesses, Lady Bull and Lady Featherstone, for adding their names. The amendments represent the position of the Communications and Digital Select Committee of your Lordships’ House. In proposing them, I do so with that authority. My co-signatories are a recent and a current member. I should add sincere apologies from the noble Baroness, Lady Featherstone, for not being here this evening. If she is watching, I send her my very best wishes.

When my noble friend Lord Gilbert of Panteg was its chair, the committee carried out an inquiry into freedom of speech online. This has already been remarked on this evening. At part of that inquiry, the committee concluded that the Government’s proposals in the then draft Bill—which may have just been a White Paper at that time—for content described as legal but harmful were detrimental to freedom of speech. It called for changes. Since then, as we know, the Government have dropped legal but harmful and instead introduced new user empowerment tools for adults to filter out harmful content. As we heard in earlier groups this evening, these would allow people to turn off or on content about subjects such as eating disorders and self-harm.

Some members of our committee might favour enhanced protection for adults. Indeed, some of my colleagues have already spoken in support of amendments to this end in other groups. Earlier this year, when the committee looked at the Bill as it had been reintroduced to Parliament, we agreed that, as things stood, these new user empowerment tools were a threat to freedom of speech. Whatever one’s views, there is no way of judging their impact or effectiveness—whether good or bad.

As we have heard already this evening, the Government have dropped the requirement for platforms to provide a public risk assessment of how these tools would work and their impact on freedom of speech. To be clear, for these user empowerment tools to be effective, the platforms will have to identify the content that users can switch off. This gives the platforms great power over what is deemed harmful to adults. Amendments 46, 47 and 64 are about ensuring that tech platforms are transparent about how they balance the principles of privacy, safety and freedom of speech for adults. These amendments would require platforms to undertake a risk assessment and publish a summary in their terms of service. This would involve them being clear about the effect of user empowerment tools on the users’ freedom of expression. Without such assessments, there is a risk that platforms would do either too much or too little. It would be very difficult to find out how they are filtering content and on what basis, and how they are addressing the twin imperatives of ensuring online safety without unduly affecting free speech.

To be clear, these amendments, unlike amendments in earlier groups, are neither about seeking to provide greater protection to adults nor about trying to reopen or revisit the question of legal but harmful. They are about ensuring transparency to give all users confidence about how platforms are striking the right balance. While their purpose is to safeguard freedom of speech, they would also bring benefits to those adults who wanted to opt in to the user empowerment tool because they would be able to assess what it was they were choosing not to see.

It is because of their twin benefits—indeed, their benefit to everyone—that we decided formally, as a committee, to recommend these amendments to the Government and for debate by your Lordships’ House. That said, the debate earlier suggests support for a different approach to enhancing protection for adults, and we may discover through this debate a preference for other amendments in this group to protect freedom of speech—but that is why we have brought these amendments forward.

20:45

I am now going to take off my Select Committee hat to say a few other remarks about freedom of expression—but I will not say very much, because I have the privilege of responding at the end. Indeed, there are noble Lords in the Chamber this evening who are far more steeped in this important principle of freedom of speech than me. I am keen to listen to what they have to say in order to judge to which of their amendments, if any, I will lend my support.

I should add that, perhaps unlike some other noble Lords who will speak on this group, I am about freedom of speech less as an end in itself and more as a means to a thriving democracy and healthy society. I have said on various public platforms over the last few months that I would have preferred the Bill to be about only child safety, so that we could learn before deciding what, if any, further steps to take—but we are where we are. What concerns me about the online world we now inhabit is in whose hands the power exists to decide what we get to see and debate. Who has the power to influence what is an acceptable opinion to hold? Who has the power to shape society, to such an extent that they can influence and change what we believe is right or wrong?

There is a real dilemma for me between the big tech platforms’ resistance to the responsibility that comes with being a publisher and us giving them that power and responsibility via the Bill. We will come back to the question of power and how we ensure that it is spread properly between Parliament, the Executive, the regulator and media platforms in a later group but, as we have decided to legislate for online safety, I want us to be as sure as we can be that we are not giving away political powers to individuals or institutions who have no democratic mandate or are not subject to suitable oversight. Freedom of speech and the clauses to which the amendments relate is why this is an important group.

I will make one final point before I sit down. Freedom of speech is also a critical element of the Digital Markets, Competition and Consumers Bill. That is why I have been so concerned that it was introduced alongside online safety. I am glad that it has finally arrived in Parliament and that we will get to examine it before too long. But that is for another day—for now, I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I have slightly abused my position because, as the noble Baroness has just said, this is a rather oddly constructed group. My amendments, which carve great chunks out of the Bill—or would do if I get away with it—do not quite point in the same direction as the very good speech the noble Baroness made, representing of course the view of the committee that she chairs so brilliantly. She also picked out one or two points of her own, which we also want to debate. It therefore might be easier if I just explain what I was trying to do in my amendments; then I will sit down and let the debate go, and maybe come back to pick up one or two threads at the end.

In previous Bills—and I have seen a lot of them—people who stand up and move clause stand part debates usually have a deeper and more worrying purpose behind the proposition. Either they have not read the Bill and are just trying to wing it, or they have a plan that is so complex and deep that it would probably need another whole Bill to sort it out. This is neither of those approaches; it is done because I want to represent the views mainly of the Joint Committee. We had quite a lot of debate in that committee about this area, beginning with the question about why the Bill—or the White Paper or draft Bill, at that stage—used the term “democratic importance” when many people would have used the parallel term “public interest” to try to reflect the need to ensure that matters which are of public good take place as a result of publication, or discussion and debate, or on online platforms. I am very grateful that the noble Lord, Lord Black, is able to be with us today. I am sure he will recall those debates, and hopefully he will make a comment on some of the work—and other members of the committee are also present.

To be clear, the question of whether Clauses 13, 14, 15 and 18 should stand part of the Bills is meant to release space for a new clause in Amendment 48. It is basically designed to try to focus the actions that are going to be taken by the Bill, and subsequently by the regulator, to ensure that the social media companies that are affected by, or in scope of, the Bill use, as a focus, some of the issues mainly related to “not taking down” and providing an appeal mechanism for journalistic material, whether that is provided by recognised news publishers or some other form of words that we can use, or it is done by recognised journalists. “Contentious” is an overused word, but all these terms are difficult to square away and be happy with, and therefore we should have the debate and perhaps reflect on that later when we come back to it.

The committee spent quite a lot of time on this, and there are two things that exercised our minds when we were working on this area. First, if one uses “content of democratic importance”, although it is in many ways quite a clever use of words to reflect a sensibility that you want to have an open and well-founded debate about matters which affect the health of our democracy, it can be read as being quite limiting. It is very hard to express—I am arguing against myself here—in the words of a piece of legislation what it is we are trying to get down to, but, during the committee’s recommendations, we received evidence that the definition of content of democratic importance was wider, or more capable of being interpreted as wider, than the scope the Government seem to have indicated. So there is both a good side and a bad side to this. If we are talking about content which is, or appears to be, specifically intended to contribute to the democratic political debate of the United Kingdom, or a part or area of the United Kingdom, we have got to ask the Minister to put on the record that this also inclusive of matters which perhaps initially do not appear necessarily to be part of it, but include public health, crime, justice, the environment, professional malpractice, the activities of large corporations and the hypocrisy of public figures when that occurs. I am not suggesting this is what we should be doing all the time, but these are things we often read about in our papers, and much the better off we are for it. However, if these things are not inclusive and not well rooted in the phrase “content of democratic importance”, it is up to the Government to come forward with a better way of expressing that, or perhaps in debate we can find it together.

I have some narrow questions. Are we agreed that what is currently in the Bill is intended specifically to contribute to democratic political debate, and is anything more needed to be said or done in order to make sure that happens? Secondly, the breadth of democratic political debate is obviously important; are there any issues here that are going to trip us up later when the Government come back and say, “Well, that wasn’t what we meant at all, and that doesn’t get covered, and therefore that stuff can be taken down, and that stuff there doesn’t have to be subject to repeal”? Are there contexts and subjects which we need to talk about? This is a long way into the question of content of democratic importance being similar or limited to matters that one recognises as relating to public interest. I think there is a case to be argued for the replacement of what is currently in the Bill with a way of trying to get closer to what we now recognise as being the standard form of debate and discussion when matters, which either the Government of the day or people individually do not like, get taken up and made the subject of legal discussion, because we do have discussions about whether or not it is in the public interest.

We probably do not know what that means. Therefore, a third part of my argument is that perhaps this is the point at which we try to define this, even though that might cause a lot of reaction from those currently in the press. In a sense, it is a question that needs to be resolved. Maybe this is or is not the right time to do that. Are the Government on the same page as the Joint Committee on this? Do they have an alternative and is this what they are trying to get across in the Bill?

Can we have a debate and discussion in relation to those things, making it clear that we want something in the Bill ensuring that vibrant political debate—the sort of things the noble Baroness was talking about on freedom of expression, but in a broader sense covering all the things that matter to the body politic, the people of this country—is not excluded by the Bill? That was the reason for putting down a raft of rather aggressive amendments. I hope it has been made clear that that was the case. I have other things that I would like to come back to, but I will probably do that towards the end of the debate. I hope that has been helpful.

[Baroness Bull (CB)]

My Lords, I will speak to the amendments in the name of the noble Baroness, Lady Stowell, to which I have added my name. As we heard, the amendments originally sat in a different group, on the treatment of legal content accessed by adults. Noble Lords will be aware from my previous comments that my primary focus for the Bill has been on the absence of adequate provisions for the protection of adults, particularly those who are most vulnerable. These concerns underpin the brief remarks I will make.

The fundamental challenge at the heart of the Bill is the need to balance protection with the right to freedom of expression. The challenge, of course, is how. The noble Baroness’s amendments seek to find that balance. They go beyond the requirements on transparency reporting in Clause 68 in several ways. Amendment 46 would provide a duty for category 1 services to maintain an up-to-date document for users of the service, ensuring that users understand the risks they face and how, for instance, user empowerment tools can be used to help mitigate these risks. It also provides a duty for category 1 services to update their risk assessments before making any “significant change” to the design or operation of their service. This would force category 1 services to consider the impact of changes on users’ safety and make users aware of changes before they happen, so that they can take any steps necessary to protect themselves and prepare for them. Amendment 47 provides additional transparency by providing a duty for category 1 services to release a public statement of the findings of the most recent risk assessment, which includes any impact on freedom of expression.

The grouping of these amendments is an indication, if any of us were in doubt, of the complexity of balancing the rights of one group against the rights of another. Regardless of the groupings, I hope that the Minister takes note of the breadth and depth of concerns, as well as the willingness across all sides of the Committee to work together on a solution to this important issue.

[Viscount Colville of Culross (CB)]

My Lords, I put my name to Amendment 51, which is also in the name of the noble Lords, Lord Stevenson and Lord McNally. I have done so because I think Clause 15 is too broad and too vague. I declare an interest, having been a journalist for my entire career. I am currently a series producer of a series of programmes on Ukraine.

This clause allows journalism on the internet to be defined simply as the dissemination of information, which surely covers all posts on the internet. Anyone can claim that they are a journalist if that is the definition. My concern is that it will make a nonsense of the Bill if all content is covered as journalism.

I support the aims behind the clause to protect journalism in line with Article 10. However, I am also aware of the second part of Article 10, which warns that freedom of speech must be balanced by duties and responsibilities in a democratic society. This amendment aims to hone the definition of journalism to that which is in the public interest. In doing so, I hope it will respond to the demands of the second part of Article 10.

It has never been more important to create this definition of journalism in the public interest. We are seeing legacy journalism of newspapers and linear television being supplanted by digital journalism. Both legacy and new journalism need to be protected. This can be a single citizen journalist, or an organisation like Bellingcat, which draws on millions of digital datapoints to create astonishing digital journalism to prove things such as that Russian separatist fighters shot down flight MH17 over Ukraine.

The Government’s view is that the definition of “in the public interest” is too vague to be useful to tech platforms when they are systematically filtering through possible journalistic content that needs to be protected. I do not agree. The term “public interest” is well known to the courts from the Defamation Act 2013. The law covers the motivation of a journalist, but does not go on to define the content of journalism to prove that it is in the public interest.

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Surely what defines the public interest in journalism is proof that a process has been followed to ensure the accuracy and fairness of the information purveyed. A journalist using a public interest defence would show that they have checked the facts for accuracy by using authoritative or verifiable sources for their information. But, if the Government will not accept this definition and say that it is too hard to define “public interest”, the response should be to look at the laws that do that.

I ask the Committee to look at the public interest tests put forward by the Information Commissioner’s Office when deciding whether to grant a freedom of information request. They require the content to “promote public understanding” and safeguard the democratic process, uphold “standards of integrity”, ensure “justice and fair treatment” for all, and ensure the “best use” of public resources.

This is not an extensive list of the criteria that can be used to define “public interest”, so I also suggest that the Minister looks at the Public Interest Disclosure Act 1998, which aims to protect employees from unfair dismissal due to whistleblowing. It goes further in trying to define the disclosures that might be protected because they are in the public interest: a request should ensure that the information disclosed will reveal

“that a criminal offence has been committed, … that a person has failed … to comply with any … legal obligation to which he is subject, … that a miscarriage of justice has occurred, … that the health or safety of any individual has been … endangered”,

or

“that the environment has been … or is likely to be damaged”.

These definitions can be built on or worked through. Both Acts show that Parliament has successfully accepted the concept of the public interest defence and defined it, albeit in a limited way.

This amendment would ensure that category 1 services protect journalism in the public interest. This is not same as the powerful exemption offered to content provided by news publishers in Clause 50, which are defined by a clear set of criteria. Under Amendment 51, the journalism covered in Clause 15 would not have to belong to a regulator to qualify as being in the public interest; the author just has to prove that they have acted responsibly to deliver accurate and verifiable journalism. This would not stop disinformation appearing on the internet—which should be allowed to continue so that it can be refuted—but it would ensure that it does not benefit from the protection offered by Clause 15.

The Bill changes for ever the controversy about whether the platforms are publishers. Companies come in the scope of the Bill as publishers, and, as such, should have the ability to distinguish content that is accurate and fair public interest journalism and, as Clause 15(2) says, create a service

“using proportionate systems and processes designed to ensure that the importance of the free expression of journalistic content is taken into account”.

I am a great supporter of freedom of expression, and I am glad that the Bill contains protections for that. However, if category 1 companies will be asked to provide this protection, it has to be less vague and more defined. This amendment offers some way towards an answer.

[Lord Kamall (Con)]

My Lords, at the beginning of Committee, I promised that I would speak only twice, and this is the second time. I hope that noble Lords will forgive me if I stray from the group sometimes, but I will be as disciplined as I can. I will speak to Amendments 57 and 62, which the noble Baroness, Lady Featherstone, and I tabled. As others have said, the noble Baroness sends her apologies; sadly, she has fractured her spine, and I am sure we all wish her a speedy recovery. The noble Baroness, Lady Fox, has kindly added her name to these amendments.

As I have said, in a previous role, as a research director of a think tank—I refer noble Lords to my registered interests—I became interested in the phenomenon of unintended consequences. As an aside, it is sometimes known as the cobra effect, after an incident during the colonial rule of India, when a British administrator of Delhi devised a cunning plan to rid the city of dangerous snakes. It was simple: he would pay local residents a bounty for each cobra skin delivered. What could possibly go wrong? Never slow to exploit an opportunity, enterprising locals started to farm cobras as a way of earning extra cash. Eventually, the authorities grew wise to this, and the payments stopped. As a result, the locals realised that the snakes were now worthless and released them into the wild, leading to an increase, rather than a decrease, in the population of cobras.

As with the cobra effect, there have been many similar incidents of well-intentioned acts that have unintentionally made things worse. So, as we try to create a safer online space for our citizens, especially children and vulnerable adults, we should try to be as alert as we can to unintended consequences. An example is encrypted messages, which I discussed in a previous group. When we seek access to encrypted messages in the name of protecting children in this country, we should be aware that such technology could lead to dissidents living under totalitarian regimes in other countries being compromised or even murdered, with a devastating impact on their children.

We should also make sure that we do not unintentionally erode the fundamental rights and freedoms that underpin our democracy, and that so many people have struggled for over the centuries. I recognise that some noble Lords may say that that is applicable to other Bills, but I want to focus specifically on the implications for this Bill. In our haste to protect, we may create a digital environment and marketplace that stifles investment and freedom of expression, disproportionately impacting marginalised communities and cultivating an atmosphere of surveillance. The amendments the noble Baroness and I have tabled are designed to prevent such outcomes. They seek to strike a balance between regulating for a safer internet and preserving our democratic values. As many noble Lords have rightly said, all these issues will involve trade-offs; we may disagree, but I hope we will have had an informed debate, regardless of which side of the argument we are on.

We should explicitly outline the duties that service providers and regulators have with respect to these rights and freedoms. Amendment 57 focuses on safe- guarding specific fundamental rights and freedoms for users of regulated user-to-user services, including the protection of our most basic human rights. We believe that, by explicitly stating these duties, rather than hoping that they are somehow implied, we will create a more comprehensive framework for service providers to follow, ensuring that their safety policies and procedures do not undermine the essential rights of users, with specific reference to

“users with protected characteristics under the Equality Act 2010”.

Amendment 62 focuses on the role of Ofcom in mitigating risks to freedom of expression. I recognise that there are other amendments in this group on that issue. It is our responsibility to ensure that the providers of regulated user-to-user services are held accountable for their content moderation and recommender systems, to ensure they do not violate our freedoms.

I want this Bill to be a workable Bill. As I have previously said, I support the intention behind it to protect children and vulnerable adults, but as I have said many times, we should also be open about the trade-off between security and protection on the one hand, and freedom of expression on the other. My fear is that, without these amendments, we risk leaving our citizens vulnerable to the unintended consequences of overzealous content moderation, biased algorithms and opaque decision-making processes. We should shine a light on and bring transparency to our new processes, and perhaps help guide them by being explicit about those elements of freedom of speech we wish to preserve.

It is our duty to ensure that the Online Safety Bill not only protects our citizens from harm but safeguards the principles that form the foundation of a free and open society. With these amendments, we hope to transcend partisan divides and to fortify the essence of our democracy. I hope that we can work together to create an online environment that is safe, inclusive and respectful of the rights and freedoms that the people of this country cherish. I hope that other noble Lords will support these amendments, and, ever the optimist, that my noble friend the Minister will consider adopting them.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Kamall, who explained well why I put my name to the amendments. I extend my regards to the noble Baroness, Lady Featherstone; I was looking forward to hearing her remarks, and I hope that she is well.

I am interested in free speech; it is sort of my thing. I am interested in how we can achieve a balance and enhance the free speech rights of the citizens of this country through the Bill—it is what I have tried to do with the amendments I have supported—which I fear might be undermined by it.

I have a number of amendments in this group. Amendment 49 and the consequential Amendments 50 and 156 would require providers to include in their terms of service

“by what method content present on the service is to be identified as content of democratic importance”,

and bring Clause 13 in line with Clauses 14 and 15 by ensuring an enhanced focus on the democratic issue.

Amendment 53A would provide that notification is given

“to any user whose content has been removed or restricted”.

It is especially important that the nature of the restriction in place be made clear, evidenced and justified in the name of transparency and—a key point—that the user be informed of how to appeal such decisions.

Amendment 61 in my name calls for services to have

“proportionate systems, processes and policies designed to ensure that as great a weight is given to users’ right to freedom of expression ... as to safety when making decisions”

about whether to take down or restrict users access to the online world, and

“whether to take action against a user generating, uploading or sharing content”.

In other words, it is all about applying a more robust duty to category 1 service providers and emphasising the importance of protecting

“a wide diversity of political, social, religious and philosophical opinion”

online.

I give credit to the Government, in that Clause 18 constitutes an attempt by them in some way to balance the damage to individual rights to freedom of expression and privacy as a result of the Bill, but I worry that it is a weak duty. Unlike operational safety duties, which compel companies proactively to prevent or minimise so-called harm in the way we have discussed, there is no such attempt to insist that freedom of speech be given the same regard or importance. In fact, there are worries that the text of the Bill has downgraded speech and privacy rights, which the Open Rights Group says

“are considered little more than a contractual matter”.

There has certainly been a lot of mention of free speech in the debates we have had so far in Committee, yet I am not convinced that the Bill gives it enough credit, which is why I support the explicit reference to it by the noble Lord, Lord Kamall.

I have a lot of sympathy with the amendments of the noble Lord, Lord Stevenson, seeking to replace Clauses 13, 14, 15 and 18 with a single comprehensive duty, because in some ways we are scratching around. That made some sense to me and I would be very interested to hear more about how that might work. Clauses 13, 14, 15 and 18 state that service providers must have regard to the importance of protecting users’ rights to freedom of expression in relation to

“content of democratic importance ... publisher content ... journalistic content”.

The very existence of those clauses, and the fact that we even need those amendments, is an admission by the Government that elsewhere, free speech is a downgraded virtue. We need these carve-outs to protect these things, because the rest of the Bill threatens free speech, which has been my worry from the start.

My Amendment 49 is a response to the Bill’s focus on protecting “content of democratic importance”. I was delighted that this was included, and the noble Lord, Lord Stevenson of Balmacara, has raised a lot of the questions I was asking. I am concerned that it is rather vaguely drawn, and too narrow and technocratic—politics with a big “P”, rather than in the broader sense. There is a lot that I would consider democratically important that other people might see, especially given today’s discussion, as harmful or dangerous. Certainly, the definition should be as broad as possible, so my amendment seeks to write that down, saying that it should include

“political, social, religious and philosophical opinion”.

That is my attempt to broaden it out. It is not perfect, I am sure, but that is the intention.

I am also keen to understand why Clauses 14 and 15, which give special protection to news publisher and journalistic content, have enhanced provisions, including an expedited appeals process for the reinstatement of removed materials, but those duties are much weaker—they do not exist—in Clause 13, which deals with content of democratic importance. In my amendment, I have suggested that they are levelled up.

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My Amendment 61 attempts to tackle the duties that will be used for companies in terms of safety, which is the focus of the Bill. It stresses that equal weight should be given to free speech and to safety. This relates to the content of democratic importance that I have just been talking about, because I argue that democracy is not safe if we do not proactively promote freedom. Both those amendments try to ensure that companies act to remove philosophical, religious, democratic and social material only in extremis—as an exception, not the rule—and that they always have free speech at the forefront.

On the issue of how we view content of democratic importance, one thing has not been stressed in our discussions so far. We should note that the right to freedom of expression is not just about defending the ability of individuals to speak or impart information; it is also the right of the public to receive information and the freedom to decide what they find useful or second-rate and what they want to watch or listen to. It is not just the right to post opinions but the right of others to have access to diverse opinions and postings; that kind of free flow of information is the very basis of our democracy. In my view, despite its talk of user controls and user empowerment, the Bill does not allow for that or take it into account enough.

It is very important, therefore, that users are told if their posts are restricted, how they are restricted and how they can appeal. That is the focus of Amendment 53A. The EHRC says that the Bill overall lacks a robust framework for individuals to appeal platforms’ decisions or to seek redress for unjustified censorship. I think that needs to be tackled. Clause 19 has a basic complaints procedure, but my amendment to Clause 17 tries to tackle what is a very low bar by stressing the need for “evidenced justification” and details on how to appeal. Users need to know exactly why there has been a decision to restrict or remove. That is absolutely crucial.

Ofcom is the enforcer in all this, with the Secretary of State of the day being given a plethora of new delegated powers, which I think we need to be concerned about. As the coalition group Legal to Say, Legal to Type notes, the Bill in its current form gives extensive powers to the Secretary of State and Ofcom:

“This would be the first time since the 1600s that written speech will be overseen by the state in the UK”.

The truth is that we probably need a new Milton, but in 2023 what we have instead is a Moylan. I have put my name to a range of the excellent series of amendments from the noble Lord, Lord Moylan, including Amendments 102, 191 and 220, all dealing with Ofcom and the Secretary of State. As he will explain, it is really crucial that we take that on.

I did not put my name to the noble Lord’s Amendment 294, although I rather wish I had. In some ways this is a key amendment, as it would leave out the word “psychological” from the definition of harm. As we have gone through all these discussions so far in Committee and at Second Reading and so on, the definition of harm is something that, it seems to me, is very slippery and difficult. People just say, “We have to remove harmful content” or, “It is okay to remove harmful content”, but it is not so simple.

I know that any philosophical rumination is frowned upon at this stage—I was told off for it the other day—but, as this is the 150th anniversary of JS Mill’s death, let me note that his important harm principle has been somewhat bastardised by an ever-elastic concept of harm.

Psychological harm, once added into the mix—I spoke about this before—is going to lead to the over-removal of lawful content, because what counts as harm is not settled online or offline. There is no objective way of ascertaining whether emotional or psychological harm has occurred. Therefore, it will be impossible to determine whether service providers have discharged their duties. Controversies of interpretation about what is harmful have already left the door open to activist capture, and this concept is regularly weaponised to close down legitimate debate.

The concept of harm, once expanded to include psychological harm, is subject to concept creep and subjectivity. The lack of definition was challenged by the Lords Communications and Digital Committee when it wrote to the Secretary of State asking whether psychological harm had any objective clinical basis. DCMS simply confirmed that it did not, yet psychological harm is going to be used as a basis for removing lawful speech from the online world. That can lead only to a censorious and, ironically, more toxic online environment, with users posting in good faith finding their access to services—access that is part of the democratic public square—being shut down temporarily or permanently, even reported to the law or what have you, just because they have been accused of causing psychological harm. The free speech elements of the Bill need to be strengthened enormously.

[Lord Hope of Craighead (CB)]

My Lords, my Amendment 63 is about the meaning of words. It was an interesting feature of the speech made by the noble Baroness, Lady Fox of Buckley, which we have just had the pleasure of listening to, that she slipped from time to time from the phrase “freedom of expression” to “freedom of speech”. That is not a criticism; it is very easy for one to treat these expressions as meaning the same thing. Others in this debate have done the same thing. I think that the noble Baroness, Lady Stowell, used “freedom of speech” sometimes, as well as “freedom of expression”. It is not a criticism; it is just a fact that we tend to treat the two the same.

However, the Government in Clause 18 have chosen to use the words

“freedom of expression within the law”.

My amendment draws attention to that feature. If we work our way through Clause 18, its purpose is to set out the duties about freedom of expression and privacy that are to apply in relation to the user-to-user services referred to in that clause. Clause 18(2) imposes on those providing user-to-user services

“a duty to have particular regard to the importance of protecting users’ right to freedom of expression within the law”

when deciding on and implementing safety measures and policies. Clause 18(8) provides a definition of the phrase “safety measures and policies”, which

“means measures and policies designed to secure compliance with any of the duties set out”

in previous clauses of the Bill. These extend to illegal content, to children’s online safety, to user empowerment, to content reporting relating to illegal content and content that is likely to be harmful to children, and to complaints procedures. So a balance has to be struck between giving effect to the right to freedom of expression within the law and performing the important duties referred to in the clause. As Clause 18(4) explains, when decisions are being taken about the safety measures and policies that are to be introduced or applied, there must be an assessment of the impact that they would have on the user’s right to freedom of expression within the law.

My amendment was prompted by a point made by the Constitution Committee, of which I am a member, in its report on the Bill. It suggested that the House might wish to consider whether, in the interests of legal certainty, the expression “freedom of expression” should also be defined for the purposes of this clause.

The committee referred to the fact that in its report on the on the Higher Education (Freedom of Speech) Bill, it recommended that that Bill should define the expression “freedom of speech”, which is what that Bill was talking about, by referring to Article 10 of the European Convention on Human Rights. I raised this issue by proposing an amendment to that effect in Committee on that Bill. On Report, a government amendment to achieve that was agreed to and, in due course, it was also agreed by the House of Commons. My Amendment 63 adopts the same wording as that used in the Higher Education (Freedom of Speech) Bill, and I suggest that it should be adopted here, too, in the interests of consistency and to provide the desirable element of legal certainty.

Although it appears in a different group, I think it is worth referring to Amendment 58 in the names of the noble Baroness, Lady Fraser of Craigmaddie, and the noble Lord, Lord Foulkes of Cumnock. It proposes the insertion of the words

“as defined under the Human Rights Act 1998 and its application to the United Kingdom”,

so it is making the same point and an additional one, which is this. We have to be very careful in this Bill to recognise that it extends to all parts of the United Kingdom, particularly in regard to the devolved Administrations in Scotland, Wales and Northern Ireland. Scotland is very active in promoting legislation dealing with matters of this kind, and it is rather important that we should define in the Bill what is meant by

“freedom of expression within the law”

in its application throughout the United Kingdom, lest there should be any doubt as to what it might mean in the other parts of this country—particularly, if I may say so, with regard to Scotland. The noble Baroness, Lady Fraser, may say more about this at this stage, although her amendment is in a different group, because it is very pertinent to the point I am trying to make about the need for a definition in Clause 18.

That is the reasoning behind the amendment, and I come back to the interesting feature that one tends to mix the expressions “freedom of speech” and “freedom of expression”, but it is important to anchor exactly why the Government chose to use the words

“freedom of expression within the law”

for the purposes of this clause.

[Lord Moylan (Con)]

My Lords, I hung back in the hope that the noble and learned Lord, Lord Hope of Craighead, would speak before me, because I suspected that his remarks would help elucidate my amendments, as I believe they have. I have a large number of amendments in this group, but all of them, with one exception, work together as, effectively, a single amendment. They are Amendments 101, 102, 109, 112, 116, 121, 191 and 220. The exception is Amendment 294, to which the noble Baroness, Lady Fox of Buckley, alluded and to which I shall return in a moment.

Taking that larger group of amendments first, I can describe their effect relatively briefly. In the Bill, there are requirements on services to consider how their practices affect freedom of expression, but there is no equivalent explicit duty on the regulator, Ofcom, to have regard to freedom of expression.

These amendments, taken together, would require Ofcom to

“have special regard to freedom of expression”

within the law when designing codes of practice, writing guidance and undertaking enforcement action. They would insert a new clause requiring Ofcom to have special regard to rights to freedom of expression within the law in preparing a code of practice; they would also require Ofcom, when submitting a draft code to the Secretary of State, to submit a statement setting out it had complied with the duty imposed by that new requirement; and they would require the Secretary of State to submit that statement to Parliament when laying a draft code before Parliament. They would impose similar obligations on Ofcom and the Secretary of State when making amendments to codes that might be made later. Finally, they would have a similar effect relating to guidance issued by Ofcom.

It is so glaringly obvious that Ofcom should be under this duty that it must be a mere omission that the balancing, corresponding duty has not been placed on it that has been placed on the providers. I would hope, though experience so far in Committee does not lead me to expect, that my noble friend would accept this, and that it would pass relatively uncontroversially.

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I will say no more about it, except to make one slightly more reflective comment—and here I am very conscious of speaking in the presence of the noble and learned Lord, Lord Hope of Craighead, who is perfectly entitled to correct me if I stray. There has been a great deal of comment from the Front Bench and from other parts of the Committee about how the Bill has to balance freedom of expression with safety, and inevitably such a balance is required. But in any such balance, the scales have to be tipped in favour of freedom of expression, because freedom of expression is a human right in the European Convention on Human Rights.

It is true of course that the second part of Article 10 allows it to be mitigated in some ways, but the starting point has to be the first clause of Article 10, which states that freedom of expression stands as a fundamental human right. Every abridgement of it has to be justified individually in relation to the second part; it is not enough to say that the two are somehow equal and that we have to find a balance that is purely prudential or that fits in with our notions of common sense or good judgment. There is a weighting in that balance, and that weighting is in favour of freedom of expression. So, I would strongly encourage noble Lords to bear that in mind, and I hope that this relatively simple proposal will find widespread acceptance.

I come now to Amendment 294, which is completely different but relates to this question of the definition of harm. As the noble Baroness, Lady Fox of Buckley, said, harm is defined very loosely and vaguely in the Bill—it is defined simply as “physical or psychological harm”, which is a self-referential definition and expands it somewhat.

I think we all understand what might be meant by “physical harm”, but, when it comes to “psychological harm”, I could understand a definition that had a basis in medical science. Perhaps the right word for such a definition would be “psychiatric harm”; I could understand that because medical science has some objective basis to it. But when one finds the words “psychological harm” being used, and when the department confirms that there is no objective basis for it, one is effectively opening the door to talking about “feelings”.

I know of course that there are genuine psychological harms which give great concern to Members of this Committee, including myself. Psychological harms that lead to eating disorders are a good example, and I understand that; I am not trying to trivialise psychological harms. This amendment is a probing amendment; it is trying to find out what the Government mean and what boundaries, if any, they set to their understanding of the term “psychological”. If there are no boundaries, it really does extend to “feelings”, because that is how the term is increasingly used, especially among the young—and that is a very loose definition.

So, in probing the Government on what they mean by “psychological harm”, I hope to have something hard and solid coming back from them that we know sets some limits to where this can take us.

[Lord Black of Brentwood (Con)]

My Lords, this is my first opportunity to speak in Committee on this important Bill, but I have followed it very closely, and the spirit in which constructive debate has been conducted has been genuinely exemplary. In many ways, it mirrors the manner in which the Joint Committee, on which I had the privilege to serve with other noble Lords, was conducted, and its report rightly has influenced our proceedings in so many ways. I declare an interest as deputy chairman of Telegraph Media Group, which is a member of the News Media Association, and a director of the Regulatory Funding Company, and note my other interests as set out in the register.

I will avoid the temptation to ruminate philosophically, as the noble Baroness, Lady Fox, entertained us by doing. I will speak to Amendment 48, in the name of the noble Lord, Lord Stevenson of Balmacara, and the other amendments which impact on the definition of “recognised news publisher”. As the noble Lord said, his amendments are pretty robust in what they seek to achieve, but I am very pleased that he has tabled them, because it is important that we have a debate about how the Bill impacts on freedom of expression—I use that phrase advisedly—and press and media freedom. The noble Lord’s aims are laudable but do not quite deliver what he intends.

I will explain why it is important that Clauses 13 and 14 stand part of the Bill, and without amendments of the sort proposed. The Joint Committee considered this issue in some detail and supported the inclusion of the news publisher content exemption. These clauses are crucial to the whole architecture of the Bill because they protect news publishers from being dragged into an onerous regime of statutory content control. The press—these clauses cover the broadcasters too—have not been subject to any form of statutory regulation since the end of the 17th century. That is what we understand by press freedom: that the state and its institutions do not have a role in controlling or censoring comment. Clauses 13 and 14 protect that position and ensure that the media, which is of course subject to rigorous independent standard codes as well as to criminal and civil law, does not become part of a system of state regulation by the back door because of its websites and digital products.

That is what is at the heart of these clauses. However, it is not a carte blanche exemption without caveats. As the Joint Committee looked at, and as we have heard, to qualify for it, publishers must meet stringent criteria, as set out in Clause 50, which include being subject to standards codes, having legal responsibility for material published, having effective policies to handle complaints, and so on. It is exactly the same tough definition as was set out in the National Security Bill, which noble Lords across the House supported when it was on Report here.

Without such clear definitions, alongside requirements not to take down or restrict access to trusted news sources without notification, opaque algorithms conjured up in Silicon Valley would end up restricting the access of UK citizens to news, with scant meaningful scope for reinstating it given the short shelf life of news. Ultimately, that would have a profound impact on the public’s right to access news, something which the noble Baroness rightly highlighted. That is why the Joint Committee recommended, at paragraph 304 of its report, that the Bill was

“strengthened to include a requirement that news publisher content should not be moderated, restricted or removed unless it is content the publication of which clearly constitutes a criminal offence, or which has been found to be unlawful by order of a court within the appropriate jurisdiction”.

The Government listened to that concern that the platforms would put themselves in the position of censor on issues of democratic importance, and quite rightly amended the draft Bill to deal with that point. Without it, instead of trusted, curated, regulated news comment, from the BBC to the Guardian to the Manchester Evening News, news would end up being filtered by Google and Facebook. That would be a crushing blow to free speech, to which all noble Lords are absolutely committed.

So, instead of these clauses acting as a bulwark against disinformation by protecting content of democratic importance, they would weaken the position of trusted news providers by introducing too much ambiguity into the system. As we all know, ambiguity brings with it legal challenge and constant controversy. This is especially so given that the exemptions that we are talking about already exist in statute elsewhere, which would cause endless confusion.

I understand the rationale behind many of the amendments, but I fear they would not work in practice. Free speech—and again I use the words advisedly—is a very delicate bloom, which can easily be swept away by badly drafted, uncertain or opaque laws. Its protection needs certainty, which is what the Bill, as it stands, provides. A general catch-all clause would be subject, I fear, to endless argument with the platforms, which are well known for such tactics and for endless legal wrangling.

I noted the remarks of the noble Lord, Lord Stevenson of Balmacara, in his superb speech on the opening day in Committee, when he said that one issue with the Bill is that it

“is very difficult to understand, in part because of its innate complexity and in part because it has been revised so often”. [Official Report, 19/4/23; col. 700.]


He added, in a welcome panegyric to clarity and concision, that given that it is a long and complex Bill, why would we add to it? I agree absolutely with him, but those are arguments for not changing the Bill in the way he proposes. I believe the existing provisions are clear and precise, practical and carefully calibrated. They do not leave room for doubt, and protect media freedom, investigative journalism and the citizen’s right to access authoritative news, which is why I support the Bill as it stands.

[Baroness Kidron (CB)]

My Lords, given the lateness of the hour, I will make just three very brief points. The first is that I find it really fascinating that the amendments in the name of the noble Baroness, Lady Stowell, come from a completely different perspective, but still demand transparency over what is going on. I fully support the formation that she has found, and I think that in many ways they are better than the other ones which came from the other perspective. But what I urge the Minister to hear is that we all seek transparency over what is going on.

Secondly, in many of the amendments—I think I counted about 14 or 15 in the name of the noble Lord, Lord Moylan, and also of the noble Lord, Lord Kamall—there is absolutely nothing I disagree with. My problem with these amendments really goes back to the debate we had on the first day on Amendment 1, in the name of the noble Lord, Lord Stevenson. He set out the purposes of the Bill, and the Minister gave what was considered by most Members of your Lordships’ House to be the groundwork of a very excellent alternative, in the language of government. It appears, as we go on, that many dozens of amendments could be dropped in favour of this purposive clause, which itself could include reference to human rights, children’s rights, the Equality Act, the importance of freedom of expression under the law, and so on. I urge the Minister to consider the feeling of the House: that the things said at the Dispatch Box to be implicit, again and again, the House requires to be explicit. This is one way we could do it, in short form, as the noble Lord, Lord Black, just urged us.

Thirdly, I do have to speak against Amendment 294. I would be happy to take the noble Lord, Lord Moylan, through dozens of studies that show the psychological impact of online harms: systems that groom users to gamble, that reward them for being online at any cost to their health and well-being, that profile them to offer harmful material, and more of the same whether they ask for it or not, and so on. I am also very happy to put some expert voices at his disposal, but I will just say this: the biggest clue as to why this amendment is wrongheaded is the number of behavioural psychologists that are employed by the tech sector. They are there, trying to get at our behaviours and thoughts; they anticipate our move and actually try to predict and create the next move. That is why we have to have psychological harm in the Bill.

21:45

[Baroness Fraser of Craigmaddie (Con)]

I will not detain noble Lords very long either. Two things have motivated me to be involved in this Bill. One is protection for vulnerable adults and the second is looking at this legislation with my Scottish head on, because nobody else seems to be looking at it from the perspective of the devolved Administrations.

First, on protection for vulnerable adults, we have already debated the fact that in an earlier iteration of this Bill, there were protections. These have been watered down and we now have the triple shield. Whether they fit here, with the amendment from my noble friend Lady Stowell, or fit earlier, what we are all asking for is the reinstatement of risk assessments. I come at this from a protection of vulnerable groups perspective, but I recognise that others come at it from a freedom of expression perspective. I do not think the Minister has answered my earlier questions. Why have risk assessments been taken out and why are they any threat? It seems to be the will of the debate today that they do nothing but strengthen the transparency and safety aspects of the Bill, wherever they might be put.

I speak with trepidation to Amendment 63 in the name of the noble and learned Lord, Lord Hope of Craighead. I flatter myself that his amendment and mine are trying to do a similar thing. I will speak to my amendment when we come to the group on devolved issues, but I think what both of us are trying to establish is, given that the Bill is relatively quiet on how freedom of expression is defined, how do platforms balance competing rights, particularly in the light of the differences between the devolved Administrations?

The Minister will know that the Hate Crime and Public Order (Scotland) Act 2021 made my brain hurt when trying to work out how this Bill affects it, or how it affects the Bill. What is definitely clear is that there are differences between the devolved Administrations in how freedom of expression is interpreted. I will study the noble and learned Lord’s remarks very carefully in Hansard; I need a little time to think about them. I will listen very carefully to the Minister’s response and I look forward to the later group.

[Baroness Harding of Winscombe (Con)]

My Lords, I too will be very brief. As a member of the Communications and Digital Committee, I just wanted to speak in support of my noble friend Lady Stowell of Beeston and her extremely powerful speech, which seems like it was quite a long time ago now, but it was not that long. I want to highlight two things. I do not understand how, as a number of noble Lords have said, having risk assessments is a threat to freedom of expression. I think the absolute opposite is the case. They would enhance all the things the noble Baroness, Lady Fox, is looking to see in the Bill, just as much as they would enhance the protections that my noble friend, who I always seem to follow in this debate, is looking for.

Like my noble friend, I ask the Minister: why not? When the Government announced the removal of legal but harmful and the creation of user empowerment tools, I remember thinking—in the midst of being quite busy with Covid—“What are user empowerment tools and what are they going to empower me to do?” Without a risk assessment, I do not know how we answer that question. The risk is that we are throwing that question straight to the tech companies to decide for themselves. A risk assessment provides the framework that would enable user empowerment tools to do what I think the Government intend.

Finally, I too will speak against my noble friend Lord Moylan’s Amendment 294 on psychological harm. It is well documented that tech platforms are designed to drive addiction. Addiction can be physiological and psychological. We ignore that at our peril.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to have been part of this debate and to have heard how much we are on common ground. I very much hope that, in particular, the Minister will have listened to the voices on the Conservative Benches that have very powerfully put forward a number of amendments that I think have gained general acceptance across the Committee.

I fully understand the points that the noble Lord, Lord Black, made and why he defends Clause 14. I hope we can have a more granular discussion about the contents of that clause rather than wrap it up on this group of amendments. I do not know whether we will be able to have that on the next group.

I thank the noble Baroness, Lady Stowell, for putting forward her amendment. It is very interesting, as the noble Baronesses, Lady Bull and Lady Fraser, said, that we are trying to get to the same sort of mechanisms of risk assessment, perhaps out of different motives, but we are broadly along the same lines and want to see them for adult services. We want to know from the Minister why we cannot achieve that, basically. I am sure we could come to some agreement between us as to whether user empowerment tools or terms of service are the most appropriate way of doing it.

We need to thank the committee that the noble Baroness chairs for having followed up on the letter to the Secretary of State for DCMS, as was, on 30 January. It is good to see a Select Committee using its influence to go forward in this way.

The amendments tabled by the noble Lord, Lord Kamall, and supported by my noble friend Lady Featherstone—I am sorry she is unable to be here today, as he said—are important. They would broaden out consideration in exactly the right kind of way.

However, dare I say it, probably the most important amendment in this group is Amendment 48 in the name of the noble Lord, Lord Stevenson. Apart from the Clause 14 stand part notice, it is pretty much bang on where the Joint Committee got to. He was remarkably tactful in not going into any detail on the Government’s response to that committee. I will not read it out because of the lateness of the hour, but the noble Viscount, Lord Colville, got pretty close to puncturing the Government’s case that there is no proper definition of public interest. It is quite clear that there is a perfectly respectable definition in the Human Rights Act 1998 and, as the noble Viscount said, in the Defamation Act 2013, which would be quite fit for purpose. I do not quite know why the Government responded as they did at paragraph 251. I very much hope that the Minister will have another look at that.

The amendment from the noble and learned Lord, Lord Hope, which has the very respectable support of Justice, is also entirely apposite. I very much hope that the Government will take a good look at that.

Finally, and extraordinarily, I have quite a lot of sympathy with the amendments from the noble Lord, Lord Moylan. It was all going so well until we got to Amendment 294; up to that point I think he had support from across the House, because placing that kind of duty on Ofcom would be a positive way forward.

As I say, getting a clause of the kind that the noble Lord, Lord Stevenson, has put forward, with that public interest content point and with an umbrella duty on freedom of expression, allied to the definition from the noble and learned Lord, Lord Hope, would really get us somewhere.

[Lord Stevenson of Balmacara (Lab)]

Lawyers—don’t you love them? How on earth are we supposed to unscramble that at this time of night? It was good to have my kinsman, the noble and learned Lord, Lord Hope, back in our debates. We were remarking only a few days ago that we had not seen enough lawyers in the House in these debates. One appears, and light appears. It is a marvellous experience.

I thank the Committee for listening to my earlier introductory remarks; I hope they helped to untangle some of the issues. The noble Lord, Lord Black, made it clear that the press are happy with what is in the current draft. There could be some changes, and we have heard a number of examples of ways in which one might either top or tail what there is.

There was one question that perhaps he could have come back on, and maybe he will, as I have raised it separately with the department before. I agree with a lot of what he said, but it applies to a lot more than just news publishers. Quality journalism more generally enhances and restores our faith in public services in so many ways. Why is it only the news? Is there a way in which we could broaden that? If there is not this time round, perhaps that is something we need to pick up later.

As the noble Lord, Lord Clement-Jones, has said, the noble Viscount, Lord Colville, made a very strong and clear case for trying to think again about what journalism does in the public realm and making sure that the Bill at least carries that forward, even if it does not deal with some of the issues that he raised.

We have had a number of other good contributions about how to capture some of the good ideas that were flying around in this debate and keep them in the foreground so that the Bill is enhanced. But I think it is time that the Minister gave us his answers.

[Lord Parkinson of Whitley Bay (Con)]

I join noble Lords who have sent good wishes for a speedy recovery to the noble Baroness, Lady Featherstone.

Amendments 46, 47 and 64, in the name of my noble friend Lady Stowell of Beeston, seek to require platforms to assess the risk of, and set terms for, content currently set out in Clause 12. Additionally, the amendments seek to place duties on services to assess risks to freedom of expression resulting from user empowerment tools. Category 1 platforms are already required to assess the impact on free expression of their safety policies, including user empowerment tools; to keep that assessment up to date; to publish it; and to demonstrate the positive steps they have taken in response to the impact assessment in a publicly available statement.

Amendments 48 and 100, in the name of the noble Lord, Lord Stevenson, seek to introduce a stand-alone duty on category 1 services to protect freedom of expression, with an accompanying code of practice. Amendments 49, 50, 53A, 61 and 156, in the name of the noble Baroness, Lady Fox, seek to amend the Bill’s Clause 17 and Clause 18 duties and clarify duties on content of democratic importance.

All in-scope services must already consider and implement safeguards for freedom of expression when fulfilling their duties. Category 1 services will need to be clear what content is acceptable on their services and how they will treat it, including when removing or restricting access to it, and that they will enforce the rules consistently. In setting these terms of service, they must adopt clear policies designed to protect journalistic and democratic content. That will ensure that the most important types of content benefit from additional protections while guarding against the arbitrary removal of any content. Users will be able to access effective appeal mechanisms if content is unfairly removed. That marks a considerable improvement on the status quo.

Requiring all user-to-user services to justify why they are removing or restricting each individual piece of content, as Amendment 53A would do, would be disproportionately burdensome on companies, particularly small and medium-sized ones. It would also duplicate some of the provisions I have previously outlined. Separately, as private entities, service providers have their own freedom of expression rights. This means that platforms are free to decide what content should or should not be on their website, within the bounds of the law. The Bill should not mandate providers to carry or to remove certain types of speech or content. Accordingly, we do not think it would be appropriate to require providers to ensure that free speech is not infringed, as suggested in Amendment 48.

22:00

Similarly, it would not be appropriate to require providers to give the same weight to protecting freedom of expression as to safety, as required under Amendment 61. Both amendments would, in effect, require platforms to carry legal content—even if they did not wish to—for safety, commercial or other reasons. This would likely result in worse outcomes for many users.

We have designed the regulatory framework to balance protecting user safety and freedom of expression. Platforms and Ofcom have duties relating to freedom of expression for which they can be held to account. A “must balance” test suggests there is a clear line to be drawn as to where legal content should be removed. This is in conflict with our policy, which accepts that it would be inappropriate for the Government to require companies to remove legal content accessed by adults. It also recognises that, as private entities, companies have the right to remove legal content from their services if they wish to do so. Preventing them from doing so by requiring them to balance this against other priorities could have unintended consequences.

Government Amendments 50A and 50F in my name seek to clarify that the size and capacity of the provider are important in construing the reference to proportionate systems and processes with regard to the duties on category 1 services to protect journalistic content and content of democratic importance. These amendments increase legal certainty and make the structure of these clauses consistent with other references to proportionality in the Bill. Without these amendments, it would be less clear which factors are important when construing whether a provider’s systems and processes to protect journalistic content and content of democratic importance are proportionate.

Amendment 51 in the name of the noble Lord, Lord Stevenson of Balmacara, seeks to change the duty of category 1 services to protect journalistic content so it applies only to journalism which they have judged to be in the public interest. This would delegate an inappropriate amount of power to platforms. Category 1 platforms are not in a position to decide what information is in the interests of the British public. Requiring them to do so would undermine why we introduced the Clause 15 duties—

[Viscount Colville of Culross (CB)]

Why would it not be possible for us to try to define what the public interest might be, and not leave it to the platforms to do so?

[Lord Parkinson of Whitley Bay (Con)]

I ask the noble Viscount to bear with me. I will come on to this a bit later. I do not think it is for category 1 platforms to do so.

We have introduced Clause 15 to reduce the powers that the major technology companies have over what journalism is made available to UK users. Accordingly, Clause 15 requires category 1 providers to set clear terms of service which explain how they take the importance of journalistic content into account when making their moderation decisions. These duties will not stop platforms removing journalistic content. Platforms have the flexibility to set their own journalism policies, but they must enforce them consistently. They will not be able to remove journalistic content arbitrarily. This will ensure that platforms give all users of journalism due process when making content moderation decisions. Amendment 51 would mean that, where platforms subjectively reached a decision that journalism was not conducive to the public good, they would not have to give it due process. Platforms could continue to treat important journalistic content arbitrarily where they decided that this content was not in the public interest of the UK.

In his first remarks on this group the noble Lord, Lord Stevenson, engaged with the question of how companies will identify content of democratic importance, which is content that seeks to contribute to democratic political debate in the UK at a national and local level. It will be broad enough to cover all political debates, including grass-roots campaigns and smaller parties. While platforms will have some discretion about what their policies in this area are, the policies will need to ensure that platforms are balancing the importance of protecting democratic content with their safety duties. For example, platforms will need to consider whether the public interest in seeing some types of content outweighs the potential harm it could cause. This will require companies to set out in their terms of service how they will treat different types of content and the systems and processes they have in place to protect such content.

Amendments 57 and 62, in the name of my noble friend Lord Kamall, seek to impose new duties on companies to protect a broader range of users’ rights, as well as to pay particular attention to the freedom of expression of users with protected characteristics. As previously set out, services will have duties to safeguard the freedom of expression of all users, regardless of their characteristics. Moreover, UK providers have existing duties under the Equality Act 2010 not to discriminate against people with characteristics which are protected in that Act. Given the range of rights included in Amendment 57, it is not clear what this would require from service providers in practice, and their relevance to service providers would likely vary between different rights.

Amendment 60, in the name of the noble Lord, Lord Clement-Jones, and Amendment 88, in the name of the noble Lord, Lord Stevenson, probe whether references to privacy law in Clauses 18 and 28 include Article 8 of the European Convention on Human Rights. That convention applies to member states which are signatories. Article 8(1) requires signatories to ensure the right to respect for private and family life, home and correspondence, subject to limited derogations that must be in accordance with the law and necessary in a democratic society. The obligations flowing from Article 8 do not apply to individuals or to private companies and it would not make sense for these obligations to be applied in this way, given that states which are signatories will need to decide under Article 8(2) which restrictions on the Article 8(1) right they need to impose. It would not be appropriate or possible for private companies to make decisions on such restrictions.

Providers will, however, need to comply with all UK statutory and common-law provisions relating to privacy, and must therefore implement safeguards for user privacy when meeting their safety duties. More broadly, Ofcom is bound by the Human Rights Act 1998 and must therefore uphold Article 8 of the European Convention on Human Rights when implementing the Bill’s regime.

[Lord Stevenson of Balmacara (Lab)]

It is so complicated that the Minister is almost enticing me to stand up and ask about it. Let us just get that right: the reference to the Article 8 powers exists and applies to those bodies in the UK to which such equivalent legislation applies, so that ties us into Ofcom. Companies cannot be affected by it because it is a public duty, not a private duty, but am I then allowed to walk all the way around the circle? At the end, can Ofcom look back at the companies to establish whether, in Ofcom’s eyes, its requirements in relation to its obligations under Article 8 have or have not taken place? It is a sort of transparent, backward-reflecting view rather than a proactive proposition. That seems a complicated way of saying, “Why don’t you behave in accordance with Article 8?”

[Lord Parkinson of Whitley Bay (Con)]

Yes, Ofcom, which is bound by it through the Human Rights Act 1998, can ask those questions and make that assessment of the companies, but it would not be right for private companies to be bound by something to which it is not appropriate for companies to be signatories. Ofcom will be looking at these questions but the duty rests on it, as bound by the Human Rights Act.

[Lord Stevenson of Balmacara (Lab)]

It is late at night and this is slightly tedious, but in the worst of all possible circumstances, Ofcom would be looking at what happened over the last year in relation to its codes of practice and assertions about a particular company. Ofcom is then in trouble because it has not discharged its Article 8 obligations, so who gets to exercise a whip on whom? Sorry, whips are probably the wrong things to use, but you see where I am coming from. All that is left is for the Secretary of State, but probably it would effectively be Parliament, to say to Ofcom, “You’ve failed”. That does not seem a very satisfactory solution.

[Lord Parkinson of Whitley Bay (Con)]

Platforms will be guided by Ofcom in taking measures to comply with their duties which are recommended in Ofcom’s codes, and which contain safeguards for privacy, including ones based on the European Convention on Human Rights and the rights therein. Paragraph 10(2)(b) of Schedule 4 requires Ofcom to ensure that measures, which it describes in the code of practice, are designed in light of the importance of protecting the privacy of users. Clause 42(2) and (3) provides that platforms will be treated as complying with the privacy duties set out at Clause 18(2) and Clause 28(2), if they take the recommended measures that Ofcom sets out in the codes.

[Lord Stevenson of Balmacara (Lab)]

That is the point I was making.

[Lord Parkinson of Whitley Bay (Con)]

It worked. In seriousness, we will both consult the record and, if the noble Lord wants more, I am very happy to set it out in writing.

Amendment 63 in the name of the noble and learned Lord, Lord Hope of Craighead, seeks to clarify that “freedom of expression” in Clause 18 refers to the

“freedom to impart ideas, opinions or information”,

as referred to in Article 10 of the European Convention on Human Rights. I think I too have been guilty of using the phrases “freedom of speech” and “freedom of expression” as though they were interchangeable. Freedom of expression, within the law, is intended to encompass all the freedom of expression rights arising from UK law, including under common law. The rights to freedom of expression under Article 10 of the European Convention on Human Rights include both the rights to impart ideas, opinions and information, but also the right to receive such ideas, opinions and information. Any revised definition of freedom of expression to be included in the Bill should refer to both aspects of the Article 10 definition, given the importance for both children and adults of receiving information via the internet. We recognise the importance of clarity in relation to the duties set out in Clauses 18 and 28, and we are very grateful to the noble and learned Lord for proposing this amendment, and for the experience he brings to bear on behalf of the Constitution Committee of your Lordships’ House. The Higher Education (Freedom of Speech) Bill and the Online Safety Bill serve very different purposes, but I am happy to say that the Bill team and I will consider this amendment closely between now and Report.

Amendments 101, 102, 109, 112, 116, 121, 191 and 220, in the name of my noble friend Lord Moylan, seek to require Ofcom to have special regard to the importance of protecting freedom of expression when exercising its enforcement duties, and when drafting or amending codes of practice or guidance. Ofcom must already ensure that it protects freedom of expression when overseeing the Bill, because it is bound by the Human Rights Act, as I say. It also has specific duties to ensure that it is clear about how it is protecting freedom of expression when exercising its duties, including when developing codes of practice.

My noble friend’s Amendment 294 seeks to remove “psychological” from the definition of harm in the Bill. It is worth being clear that the definition of harm is used in the Bill as part of the illegal and child safety duties. There is no definition of harm, psychological or otherwise, with regard to adults, given that the definition of content which is harmful to adults was removed from the Bill in another place. With regard to children, I agree with the points made by the noble Baroness, Lady Kidron. It is important that psychological harm is captured in the Bill’s child safety duties, given the significant impact that such content can have on young minds.

I invite my noble friend and others not to press their amendments in this group.

22:15

[Baroness Stowell of Beeston (Con)]

My Lords, your Lordships will want me to be brief, bearing in mind the time. I am very grateful for the support I received from my noble friends Lady Harding and Lady Fraser and the noble Baronesses, Lady Kidron and Lady Bull, for the amendments I tabled. I am particularly grateful to the noble Baroness, Lady Bull, for the detail she added to my description of the amendments. I can always rely on the noble Baroness to colour in my rather broad-brush approach to these sorts of things.

I am pleased that the noble Lord, Lord Stevenson, made his remarks at the beginning of the debate. That was very helpful in setting the context that followed. We have heard a basic theme come through from your Lordships: a lack of certainty that the Government have struck the right balance between privacy protection and freedom of expression. I never stop learning in your Lordships’ House. I was very pleased to learn from the new Milton—my noble friend Lord Moylan—that freedom of expression is a fundamental right. Therefore, the balance between that and the other things in the Bill needs to be considered in a way I had not thought of before.

What is clear is that there is a lack of confidence from all noble Lords—irrespective of the direction they are coming from in their contributions to this and earlier debates— either that the balance has been properly struck or that some of the clauses seeking to address freedom of speech in the Bill are doing so in a way that will deliver the outcome and overall purpose of this legislation as brought forward by the Government.

I will make a couple of other points. My noble friend Lord Moylan’s amendments about the power of Ofcom in this context were particularly interesting. I have some sympathy for what he was arguing. As I said earlier, the question of power and the distribution of it between the various parties involved in this new regime will be one we will look at in broad terms certainly in later groups.

On the amendments of the noble Lord, Lord Stevenson, on Clauses 13, 14 and so on and the protections and provisions for news media, I tend towards the position of my noble friend Lord Black, against what the noble Lord, Lord Stevenson, argued. As I said at the beginning, I am concerned about the censorship of our news organisations by the tech firms. But I also see his argument, and that of the noble Viscount, Lord Colville, that it is not just our traditional legacy media that provides quality journalism now—that is an important issue for us to address.

I am grateful to my noble friend the Minister for his round-up and concluding remarks. Although it is heartening to hear that he and the Bill team will consider the amendment from the noble and learned Lord, Lord Hope, in this group, we are looking—in the various debates today, for sure—for a little more responsiveness and willingness to consider movement by the Government on various matters. I hope that he is able to give us more encouraging signs of this, as we proceed through Committee and before we get to further discussions with him—I hope—outside the Chamber before Report. With that, I of course withdraw my amendment.

Amendment 46 withdrawn.

Amendments 47 and 48 not moved.

Clause 13: Duties to protect content of democratic importance

Amendments 49 and 50 not moved.

Amendment 50A

Moved by

[Lord Parkinson of Whitley Bay]

50A: Clause 13, page 14, line 8, at end insert—
“(5A) In determining what is proportionate for the purposes of subsection (2), the size and capacity of the provider of a service, in particular, is relevant.”Member’s explanatory statement
This amendment indicates that the size and capacity of a provider is important in construing the reference to “proportionate systems and processes” in clause 13 (duties to protect content of democratic importance).

Amendment 50A agreed.

Clause 13, as amended, agreed.

House resumed.

House adjourned at 10.20 pm.