House of Lords

Thursday 25th May 2023 Lords Chamber

Thursday 25 May 2023

11:00

Prayers—read by the Lord Bishop of Chelmsford.

Food Price Rises: Impact on Low-Income Families

Thursday 25th May 2023 Lords Chamber

Question

11:06

Asked by

[Baroness Hussein-Ece]

To ask His Majesty’s Government what assessment they have made of the impact of the rise in food prices on low-income families.

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Viscount Younger of Leckie) (Con)]

My Lords, we remain concerned about the impact of current global inflationary pressures on low-income families. This is a government priority and the reason why we have taken decisive action to support those on low incomes. The Chancellor met food manufacturers on Tuesday to discuss food costs and to explore ways to ease pressure on households. He also met the Competition and Markets Authority to discuss its investigations into the fuel and grocery markets.

[Baroness Hussein-Ece (LD)]

I am grateful to the Minister for his reply and that the Government are now seriously looking at this, but we know that inflation in basic foods is running at 19%, the highest rate since 1977, and polls show that one in six parents is going without—going hungry—so they can afford to feed their children, while supermarkets are still making record profits. The Minister may have seen reports that families with babies cannot afford baby formula, with the CEO of the British Pregnancy Advisory Service warning:

“We know that families experiencing food poverty resort to unsafe feeding methods, such as … watering down formula”.


What is the take-up of the Healthy Start allowance? Will the Minister urge his department to at least look at increasing its value, which is just £8.50 a week for children from birth to one year old and a staggeringly low £4.25 a week for children between one and four? Are the Government really going to stand by as babies are placed at risk of malnutrition and serious illness due to the cost of living crisis and the soaring cost of infant formula?

[Viscount Younger of Leckie (Con)]

There were a number of questions there from the noble Baroness. We know that it is tough for households and businesses across the UK at the moment and are doing whatever we can to support them with the cost of living. The noble Baroness will know that £94 billion is earmarked for giving out. On her question about supporting families who cannot afford the rising cost of infant formula, she will know that in cases of difficulty all local authorities should have an emergency formula provision pathway in place. Families can access this by talking to their health visitor or midwife, who can signpost them to local support. For women who cannot or choose not to breastfeed, Healthy Start provides support towards the cost of first-stage infant formula.

[Baroness McIntosh of Pickering (Con)]

My Lords, I congratulate the Government on organising the Farm to Fork summit but echo the sentiments of the noble Baroness who asked the Question. Does my noble friend share my concern that farmers are not receiving these increasing costs, which they are covering, of energy prices and food production, added to the shortage of staff? Will the Government use every opportunity to investigate the rising profits that the supermarkets are recording?

[Viscount Younger of Leckie (Con)]

I take note of my noble friend’s point on the Farm to Fork food summit, which allowed the sector to get together, discuss the future, provide further innovative methods on food supply and discuss the current situation. Supermarkets’ profit margins are actually surprisingly low; I have some figures that I can pass on.

[Lord Sahota (Lab)]

My Lords, with ever-increasing food prices, the Trussell Trust has said that 40% of people on universal credit are using food banks. Is it not about time that the Government looked at this benefit and increased it?

[Viscount Younger of Leckie (Con)]

We remain very aware that food banks are being used to a great extent. As I have done before, I pay tribute to those, including charities, who so ably and selflessly run them. With the Family Resources Survey that we picked up on recently, we are very aware of the issues and are determined to ensure that people do not and should not have to go to food banks.

[The Lord Bishop of Chelmsford]

My Lords, in the diocese which I serve, charities in Harlow alone have fed more than 1 million people in the last year, which, frighteningly, represents a slower than the average demand for food banks nationally. I draw the Minister’s attention to the Bounty Club, which works with local businesses and people on the edge of crisis, helping them access a large bag of fresh food for £2.50, saving households on average £20 to £40 a week. Demand in Harlow is such that queues are regularly seen from St Paul’s Church right down the street. What assessment have the Government made of the number of people who are on the cusp of falling into poverty? What strategies are they considering to prevent people requiring the use of their local food bank or even charities such as the Bounty Club?

[Viscount Younger of Leckie (Con)]

I take note of the point the right reverend Prelate makes about Harlow. We are alert to those who do fall into poverty. What I can tell her is that in 2021-22, there were 1.7 million fewer people in absolute poverty after housing costs than in 2009-10, but I am very aware of the current situation. All I can say is that we continue to keep an eye on this: we are spending £276 billion through the welfare system in 2023-24, including around £124 billion on people of working age and children, and £152 billion on pensioners, to help with this aspect.

[Baroness Sherlock (Lab)]

My Lords, the reality is that food is now the new energy; but it is worse, because households spend more of their budgets on food and it is not cheaper in the summer. In fact, it is worse, because the kids do not get free school meals. Food price inflation of 19% is a disaster for poor families. The Minister will know—because he has read the evidence—that those on low incomes, even in work, are already buying own-brand supermarket goods; they are already skipping meals; and they are already going to food banks. There is nowhere else for them to go. Is any thinking going on in the Government as to what they will do right now to help those families this summer?

[Viscount Younger of Leckie (Con)]

Of course, the noble Baroness is right. I said at the beginning that much work is going on with regard to interaction with the supermarkets. A number of supermarkets have some urgent initiatives on the go. For example, ASDA has invested £73 million, allowing it to drop and lock prices for over 100 household products. The prices of these products were dropped by 12% on average and will remain this way until the end of the year. Morrisons has similar initiatives: it has cut prices on more than 500 products. It is more than this, and the noble Baroness will know that it is not just the UK. There are other countries, including Germany, where food price inflation remains high, at around 18% or 19%.

[Lord Dodds of Duncairn (DUP)]

My Lords, have the Government made any assessment of the impact on the food industry, and therefore the impact on prices for consumers, of the new labelling requirements, which appear to be quite onerous and are required under the Windsor Framework? The Government are now saying that these will apply not just to goods going to Northern Ireland but right across the United Kingdom. Severe concerns have been raised about the impact on food prices of those requirements.

[Viscount Younger of Leckie (Con)]

I do not have any figures to support an answer to give to the noble Lord, but what I can say—to which I alluded earlier—is that, in terms of supermarkets and profits, looking at the money side, there is no reason to believe that supermarket profit margins have significantly increased recently. The overall profits of Tesco and Sainsbury’s fell by 51% and 62% respectively in 2022-23. On the link with Northern Ireland, I will certainly look at my answer, and I may well write to the noble Lord.

[Lord Marlesford (Con)]

My Lords, does the Minister agree that the big problem is with processed food—the more processing, the higher the prices? Fresh food is another matter. The price of wheat this time last year was more than £300 a tonne; it is currently less than £200 a tonne. That is actually less than it was before the Ukraine war started. What effect does the Minister think that will soon start to have on the price of bread and meat?

[Viscount Younger of Leckie (Con)]

The truth is that many people on low incomes find it easier, and sometimes cheaper, to buy processed food. That is a fact. Having said that, we would encourage people to go to the local market to buy food. Again, the supermarkets are really stepping up to help those on low incomes.

[Lord Palmer of Childs Hill (LD)]

My Lords, I heard what the Minister said about the Government doing everything they can to help, but I do not think that it is everything. Are they considering extending free school meals? What are they doing about energy bills? An earlier questioner asked about this, but there was no real answer. What are they doing to crack down on the profiteering by supermarkets? The Minister gave an example of one or two supermarkets, but they are not helping people on low incomes.

[Viscount Younger of Leckie (Con)]

I take issue with the noble Lord, because they are, and I have made that clear with some examples. On his point about free school meals, under this Government eligibility has been extended several times, and to more groups of children than under any other Government over the past half a century. That includes the introduction of universal infant free school meals and further education free school meals. Approximately 1.9 million pupils are claiming free school meals, and it cost about £1 billion a year. A lot has been done in this area.

NHS National Health Inequalities Improvement Programme

Thursday 25th May 2023 Lords Chamber

Question

11:17

Asked by

[Lord Brooke of Alverthorpe]

To ask His Majesty’s Government whether the NHS National Health Inequalities Improvement Programme plans to review and improve the nutrition of free school meals.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

The focus of the NHS healthcare inequalities improvement programme is the delivery of healthcare services. Free school meals are outside its remit. The Department for Education continues to keep school food standards under review. The current standards provide a robust yet flexible framework to ensure that pupils in England continue to receive high-quality and nutritious food. Developing healthy habits early in life can influence health in childhood and reduce the risk of diet-related diseases in later life.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I am grateful to the Minister for his reply. Who actually is responsible if one tries to change the formulation of school meals for children? In previous debates on obesity, he has stressed the importance of reducing calories. The Government have estimated the number of calories that need to go down to get child obesity down. As we are giving children so much sugar in school meals and such highly processed food, why do they not run a trial with less sugar and healthier food than we are doing at the moment to try to deliver on the calorie objective, which he has talked about previously?

[Lord Markham (Con)]

First, I thank the noble Lord for the work that he does in this space; I know it is something very close to his heart. It is the school foods standards that set and define the formulation in the food and drinks provided by schools. That is all through the school day: breakfast, lunch and afterwards. They were due to be reviewed around the time of Covid in 2019; clearly, that did not happen then, so we are looking again at whether we should be reviewing those. Precisely in that, we shall be looking at levels of calorific intake.

[Baroness Manzoor (Con)]

My Lords, as my noble friend will know, in the short term a poor diet can lead to stress, inability to concentrate and tiredness. In the longer term it can lead to obesity, diabetes, high blood pressure and indeed heart disease. Of course, my noble friend will be aware that there are great inequalities within ethnic minorities. Can he say what the Government are doing to reduce the inequalities and ensure that micronutrients play an important part in the promotion of the food strategy?

[Lord Markham (Con)]

First, I wish my noble friend a happy birthday. I totally support her question. The most important thing with regard to inequalities—funnily enough, this was the answer to an earlier question—is the use of free school meals. I think we can all welcome the fact that 37.5% of children now receive free school meals and therefore a nutritious start to life. Clearly, that is the best way to make sure that children, particularly those with potential inequalities, are getting a healthy start in life, as well as the under-fours clubs to make sure that they get healthy food.

[Baroness Walmsley (LD)]

My Lords, according to Henry Dimbleby, the Government’s public food procurement system is dominated by a few very large corporations, creating little incentive for innovation or improvement. Can the Minister give us an update on the trials in south-west England, in which small, local, high-quality food suppliers can get into public procurement—for example, to schools and hospitals? I understand that early evidence reports better quality and choice at no increased cost.

[Lord Kamall (Con)]

My Lords—

[Lord Markham (Con)]

Absolutely. Again, there are also very good grounds for locally sourcing in that way in terms of the environment and reducing the carbon footprint. I must admit to not being very familiar with some of the pilots mentioned, so I will find out and get back to the noble Baroness.

[Baroness Finlay of Llandaff (CB)]

My Lords, the latest data from the National Child Measurement Programme showed that among 10 to 11 year-olds at school, almost 38% were overweight, of whom nearly two-thirds were obese. Do the Government recognise that this represents severe malnutrition in that cohort and that public health should be involved in the planning and inspection of school meals to try to improve that figure? These children will become health problems for the whole of the nation going forward unless their malnutrition is corrected.

[Lord Markham (Con)]

I agree with the noble Baroness. It was said in answer to a Question not so long ago that the hypothesis about much of the reduction in increases in life expectancy in the G7 nations, apart from Japan, is that it is very much linked to obesity, and that starts early on in life. Education is a key part of that, but the things we are starting to do as regards the placement of foods in supermarkets are already having an impact, and the reaction of the industry to that has been the reformulation of some foods which has already taken out 14% of sugar and 20% of salt—but clearly there is a lot more to be done.

[Lord Kamall (Con)]

My Lords, I apologise to my noble friend the Minister and reassure him that I was not trying to answer the previous question. However, in answer to a previous question, my noble friend the Minister mentioned that the responsibility of school meals and nutrition lies with the Department for Education. Is he aware of any conversations and interaction between the Department for Education, the Office for Health Improvement and Disparities, and the Department of Health and Social Care?

[Lord Markham (Con)]

Absolutely. We work very closely together. The Healthy Start programme gives seven fruits a day to kids up to the age of seven to make sure that they get fruit and vegetables, and that is very much a joint initiative. Clearly, we need to be joined at the hip on some things, but as regards school meals, the DfE takes the lead.

[Baroness Merron (Lab)]

My Lords, the levelling up White Paper promised to design and test a new approach to ensure compliance with school food standards. Although pilot schemes were meant to start last September, a recent Written Answer from the Schools Minister stated that

“standards are being kept under review”,

with no sign of the pilot scheme. Have the Government given up on their promise and does the Minister consider the existing standards for school meals and the means of compliance sufficient to tackle nutritional inequalities across the country?

[Lord Markham (Con)]

As mentioned previously, the review did not happen because of Covid, and it is very much within the plans that it is time to look at school standards again. Clearly, that is key to making sure that there is a healthy diet in schools, and of course that goes across the board.

[Baroness Watkins of Tavistock (CB)]

My Lords, can the Minister explain whether the Department of Health is working with other departments to consider funding families entitled to free school meals with additional allowances during the summer vacation in the light of the current cost of food and the need, as he has acknowledged, to provide adequate nutrition to promote health in young people?

[Lord Markham (Con)]

Yes. It is worth reiterating that the 37.5% free school meal level is an achievement, as is the fact that all infant schoolchildren receive free school meals—higher than ever before. However, the noble Baroness is correct in terms of what happens during holidays. That is why we have the holiday activity fund, which in the summer holidays, for instance, provides meals for four of the weeks, as well as for another week in winter. Clearly, we need to keep that under review to make sure that that is sufficient.

[Lord Mann (Non-Afl)]

My Lords, currently some Jewish children are having to survive due to the funding formula on a bagel every dinnertime. Is that acceptable and, if not, which Minister will sort it out?

[Lord Markham (Con)]

I hope that every child would have something more nutritious and healthier than just a bagel. I will happily discuss that with the noble Lord; I am not familiar with that particular case but it is something I will happily take up.

[The Earl of Devon (CB)]

My Lords, in response to the noble Baroness’s question on the South West Food Hub, I was on the advisory board until last week. That project has now folded, purely through lack of engagement from the Cabinet Office and the procurement services. Can the Minister speak to his colleagues at the Cabinet Office to see whether they can re-engage in these dynamic procurement activities for local farmers?

[Lord Markham (Con)]

I would be happy to. I need to find out more first, and I would be delighted if there was some information or if we could meet on this, but I would be happy to take it up.

[Baroness McIntosh of Hudnall (Lab)]

The Minister has twice cited the figure of 37.5% of children now receiving free school meals, which, as he rightly says, is an achievement of a sort. However, if the standard of food those children are receiving is insufficiently good—and there appears to be some evidence of that from the information that has been going around the House this morning—adding to the number on the list of those receiving free school meals, although admirable in terms of the numbers, may be contributing to the problem. Does the Minister agree?

[Lord Markham (Con)]

I do not think anyone would say that the current school food standards are insufficient. I think the feeling is that it has been a while since they were changed because of Covid, and it is time to ask whether improvements can be made, because this is an ever-evolving situation. So I would not agree with that categorisation, but we should indeed always be looking to see whether we can make better choices.

Parole Board Recommendations: Open Conditions

Thursday 25th May 2023 Lords Chamber

Question

11:28

Asked by

[Baroness Burt of Solihull]

To ask His Majesty’s Government what proportion of Parole Board recommendations for prisoners to be transferred to open conditions were accepted by the Secretary of State for Justice from January to March; and on what grounds such recommendations can be rejected.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, the Question refers to the transfer of a life or other indeterminate sentence prisoner to an open prison. That is an operational decision for the Secretary of State. He is not obliged to follow the Parole Board’s advice but will take it into account. From January to March 2023, the Secretary of State considered 90 recommendations by the Parole Board for a prisoner to be moved to open prison. The Secretary of State accepted 14 recommendations and rejected 76.

[Baroness Burt of Solihull (LD)]

My Lords, it is an old saying in Parliament, “Never ask a question of a Minister unless you know the answer already”, and I read with interest the Minister’s response to the noble Lord, Lord Blunkett, on 27 April. The figure that the noble and learned Lord has quoted is less than one in six referrals from the Parole Board, and I cannot get my head around how small it is. The Minister outlines the criteria to be taken into consideration, but the Parole Board making the recommendation will surely know what criteria the Government are going on. What is the point in it keeping on making referrals if the Secretary of State is not going to listen?

[Lord Bellamy (Con)]

My Lords, I think I should clarify that this particular advisory function of the Parole Board has no statutory basis. It dates historically to the time when the Parole Board was part of the Home Office. The Parole Board has no operational responsibility for the safety and security of the open estate, nor for the rehabilitation of prisoners, nor for the categorisation of which prisoners are suitable for which prisons. In June 2022, the Secretary of State adopted new criteria for the transfer of prisoners to open prisons and unfortunately, in the Secretary of State’s view, those criteria have not been fully followed by the Parole Board’s advice. Those decisions by the Secretary of State can of course be challenged in the courts.

[Lord Blunkett (Lab)]

My Lords, in the first quarter of last year, 88 references were made from the Parole Board, and 80 were accepted. The change over the past year can have nothing to do with whether the Parole Board is following the Ministry of Justice criteria, which say

“the prisoner is assessed as low risk of abscond; and … a period in open conditions is considered essential to inform future decisions about release”.

The Parole Board is following the criteria laid down by the MoJ, but the MoJ is following a different route, and the question is: why?

[Lord Bellamy (Con)]

My Lords, with great respect to the noble Lord, Lord Blunkett, who has enormous experience and expertise in this area, the Secretary of State’s view is that the Parole Board is not entirely following the change in criteria that was adopted in June 2022, particularly in regard to the essential nature of the move to open conditions to inform future decisions about release. There is indeed a further condition that the

“transfer to open conditions would not undermine public confidence in the Criminal Justice System”.

That is a matter for the Secretary of State.

[Lord Pannick (CB)]

My Lords, in March, the High Court held that the previous Secretary of State, Dominic Raab, had acted unlawfully by instructing probation officers not to give the Parole Board their view of the risks of release of particular prisoners if that conflicted with his views. Can the Minister assure me that the new Secretary of State for Justice, Alex Chalk, who I warmly welcome to his post, has a better understanding of the importance of the independence of the Parole Board and its processes?

[Lord Bellamy (Con)]

The Secretary of State will of course abide by the recent decision of the High Court and will entirely respect the constitutional position of the Parole Board. I should add that what we are talking about today in relation to the 76 decisions is 32 prisoners serving a mandatory life sentence for murder, 11 serving a discretionary life sentence for rape and various other sexual offences, eight on an IPP sentence for serious sexual offences and another 25 for serious offences, all involving violence against the person.

[Lord Cormack (Con)]

Does my noble and learned friend share my concern that too many people are going to prison? Has a recent assessment been made of the effects of community restorative justice, which I saw in Northern Ireland when I was chairman of the Northern Ireland Affairs Committee in the other place and which was extremely effective?

[Lord Bellamy (Con)]

My noble friend makes a very fair point. That is a matter primarily for the Sentencing Council, but the Government will of course keep it under review.

[Lord Garnier (Con)]

My Lords, we long ago got rid of Home Office Ministers setting tariffs in life sentences because it permitted politics to become involved in the justice system. Can my noble and learned friend assure me that of the 76 decisions made by the Secretary of State rejecting a Parole Board recommendation, politics played no part whatever in any of them?

[Lord Bellamy (Con)]

My Lords, those decisions were all taken on the merits. I repeat that it is an operational matter which prison the prisoner should be in. That is quite distinct from the question of whether a prisoner should be released, which is the primary role of the Parole Board.

[Baroness Chapman of Darlington (Lab)]

My Lords, the principal reason that people are worried about this is because they believe that release straight from closed conditions and high security conditions increases the risk of reoffending and that a period in open conditions is very helpful in reducing that risk. Will the Minister return to the House at a future date to inform us of what has happened as a consequence of the decisions taken by the Secretary of State? Preventing a period in open conditions does not prevent release. All it does is prevent preparation for release.

[Lord Bellamy (Con)]

My Lords, I am entirely happy to give the House whatever information it requires at any time, and I fully accept that a move to an open prison is potentially one aspect of a prisoner’s progression towards release, but in modern thinking, it is not the only route. A number of closed prisons operate prisoner progression programmes towards release direct from closed prisons, and those relatively new programmes are enjoying results. Several hundred prisoners are released every year from those closed conditions without, as far as I know, any evidence that that poses a risk to the community.

[Baroness Meacher (CB)]

My Lords, following the question asked by the noble Lord, Lord Cormack, does the Minister accept that short-term prison sentences tend to lead to very high reoffending rates and that prisoners often come out more criminal than they went in. If we can ensure that community sentences really address the underlying causes of criminality—and the Justice and Home Affairs Select Committee is looking at that—will the Minister accept that short-term prison sentences really should be abandoned in favour of community sentences?

[Lord Bellamy (Con)]

My Lords, I cannot as of today accept that proposition. I entirely see the arguments, it is a very big question and I am sure we will discuss it on a future occasion.

[Lord Anderson of Swansea (Lab)]

My Lords, presumably the Secretary of State has access to all the information that the Parole Board has, and the Parole Board is well aware of all the relevant matters, so why the difference? Should the Secretary of State give reasons for rejecting the recommendations?

[Lord Bellamy (Con)]

The Secretary of State gives reasons in every individual case, and those cases can be challenged.

[Lord Moylan (Con)]

My Lords, has my noble and learned friend given consideration to what might be called the ripple effect of the change in criteria on Parole Board decisions, where the sentences are less than life sentences, where it is making other judgments about moving people from closed to open prison? I ask that because anecdotally one hears—and my noble and learned friend may be able to comment on this—that there are now spare places in open prisons that cannot be filled, while the closed prison estate comes under ever more pressure.

[Lord Bellamy (Con)]

My Lords, the Secretary of State, when introducing these new rules in January 2022, prioritised the precautionary principle and the protection of the public. Despite enormous pressure on the closed estate, he took the view—in my view rightly—that public protection was more important than the short-term expedient of transferring prisoners who are not suitable for open conditions to open conditions simply to reduce pressures on the closed estate.

[Lord Watts (Lab)]

My Lords, is it not the case that the Government’s policy is being driven by dogma again? They are not looking at the evidence. Reoffending rates are still far too high, jails are full and yet Ministers are claiming that they are going to have longer and tougher sentences. Do the Government not need to revisit this and come up with a coherent plan to deal with the matter?

[Lord Bellamy (Con)]

My Lords, as I have said on previous occasions, reoffending rates are slowly coming down, and I take this opportunity to pay tribute to the previous Secretary of State for his work on improved education in prison, employment opportunities, accommodation on release and other reforms which I am sure will bear good fruit in due time.

Trains: Wifi Provision for Passengers

Thursday 25th May 2023 Lords Chamber

Question

11:39

Asked by

[Lord Berkeley]

To ask His Majesty’s Government whether they plan to advise franchise train operators to discontinue the provision of Wi-Fi for passengers on their trains.

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

My Lords, the way we currently operate our railways is not financially sustainable. It is unfair to continue to ask taxpayers to foot the bill, which is why reforms are essential. Therefore, it is only right that we work with operators to review whether the current service delivers the best possible value for money. However, no decisions have been taken.

[Lord Berkeley (Lab)]

I am grateful to the Minister for that Answer. She will be aware that, I think, most train operators already have wifi in all their trains for management and revenue purposes. How much money would be saved by the Treasury if they removed access to wifi from the passengers?

[Baroness Vere of Norbiton (Con)]

I will revert to where I started on this. No decisions have been taken. As part of the business planning process, we have asked the train operating companies to look again at the services provided and to come up with a business case which sets out the benefits to passengers and the costs of providing that service. However, usage of wifi on trains is actually quite low. It is available from all train operating companies but is not available on all trains.

[Lord Swire (Con)]

One of the reasons that wifi use on trains is perhaps a little low, as my noble friend says, is because it is so hit and miss. I have been involved in an energetic correspondence with Mr Mark Hopwood, the managing director of GWR. I say energetic. It is energetic on my part, but less energetic perhaps on his; an acknowledgement would be a start and an answer even better. The truth is that we have a terrible problem in this country with productivity, and train time is dead time. You can get wifi on a plane and on a boat; surely you should be able to get reliable wifi on trains. If the problem is with Network Rail, then we really need to look at the relationship we have with the train operators, Network Rail and the whole infrastructure.

[Baroness Vere of Norbiton (Con)]

The wifi on trains usually runs off the same 4G and 5G system that my noble friend will have on his smartphone, so sometimes there can be reliability issues. It also depends on how many people are using the wifi on the train. It is there for email and other low data usage requirements. It is not really there for streaming, but I accept that sometimes the bandwidth can be a little challenging.

[Baroness Taylor of Stevenage (Lab)]

My Lords, UK rail passengers already suffer the most expensive rail fares in Europe. Surely they should expect to receive the basics—a seat, working toilets and catering—but too often this is not the case, even on long journeys. Now the Government are planning to advise train operators to remove wifi so passengers will not be able to use their journey time to work. Are the Government stuck in the 19th century? When will His Majesty’s Government recognise that to tackle the climate emergency we need better public transport, not worse?

[Baroness Vere of Norbiton (Con)]

Of course, the Government regularly survey passengers to find out what they really appreciate about the railways such as reliability, good services, punctuality and clean services. Actually, wifi is very low down on the list of priorities.

[Noble Lords]

Oh!

[Baroness Vere of Norbiton (Con)]

I can say only what the evidence is from asking passengers. We have asked the train operating companies to look at the provision of wifi, to establish a business case which sets out the benefits to passengers—how much they need it, those who perhaps are unable to use a smartphone on 4G or 5G for example—and then to revert.

[Baroness McIntosh of Pickering (Con)]

My Lords, will my noble friend take this as a response to her survey? Those of us who purchase our tickets electronically require wifi to both board and travel on the train. How am I going to be permitted legally to travel if there is no wifi to demonstrate that I have purchased a ticket?

[Baroness Vere of Norbiton (Con)]

I would hope that my noble friend would have got the ticket in the wallet on her phone because she would have needed it to go through the station anyway. Free wifi will remain available at stations and as I say, no decisions have been taken. We have asked the train operating companies to prepare business cases.

[Lord Snape (Lab)]

My Lords, if the wifi is taken off our unreliable Avanti trains, how will I be able to let the Whips’ Office know that I will be missing a three-line Whip? Is this not another example of the pettifogging interference in the railway industry by civil servants, many of whom know nothing about it but love playing trains in their spare time? Is this not yet another example of those in her department who know the price of everything and the value of nothing?

[Baroness Vere of Norbiton (Con)]

I for one would be very disappointed if the noble Lord were unable to vote. I will take up the issue of where the Government are at the moment. Prior to the pandemic there was no need for any subsidy in operating the railways. There were zero subsidies, so revenues matched the costs. Noble Lords will all know that, since the pandemic, revenues have fallen and some revenues have shifted to the weekend and to more leisure travel. Last year the taxpayer had to subsidise the trains to the tune of £2.85 billion. That is unsustainable. To be a responsible Government, we have to look at all elements of our train services to ensure that they match demand and that the services we are providing and the facilities on them meet the needs of passengers.

[Baroness Randerson (LD)]

My Lords, the Minister frequently tells us that the taxpayer cannot be expected to subsidise the railways because relatively few people use them. Do the Government acknowledge that we all benefit—every single one of us—from the use of the railways because each train that travels carries many hundreds of passengers who would otherwise be clogging up our already congested roads?

[Baroness Vere of Norbiton (Con)]

I do not think I can necessarily disagree with the noble Baroness, but that is a very absolutist approach and there is some balance to be had here. She says that the Government are not willing to subsidise the railways; we already do. As I have said, £2.85 billion is going in for the services. As I mentioned earlier this week, £44.1 billion is going into control period 7—the highest ever—and that covers all the renewals, the maintenance and the Network Rail operations. That element of it is very significant. That is nearly £9 billion a year that the Government spend, and in addition a further £2.8 billion is spent on subsidising services.

[Viscount Stansgate (Lab)]

My Lords, the Minister says that no final decision has been taken, but is she trying to persuade the House that the Government no longer think, in the 21st century in which we live, that wifi should count as an essential service for those of us who use the railways?

[Baroness Vere of Norbiton (Con)]

The proof is in the pudding—between 10% and 20% of people on trains use the wifi. Most people nowadays use 4G and 5G networks.

[The Earl of Devon (CB)]

The noble Baroness links the unavailability of wifi to the unavailability of 4G and 5G in the areas in which the trains are travelling. Does she directly link the failure of the trains to provide wifi to the failure of Project Gigabit?

[Baroness Vere of Norbiton (Con)]

If I knew what Project Gigabit was, I would be able to answer the noble Earl’s question. I will find out and write to him. If there are not-spots for 4G and 5G—or perhaps we should call them no-spots—we really should look at that and ensure that train travellers can use those networks with reliability.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the Minister has a number of times referred to people using their own 4G or 5G contracts instead, but people who have to really watch their costs in the cost of living crisis are very likely to have capped contracts where the amount of 4G or 5G they use is limited. Given the already eye-watering cost of rail fares and the fact that if you get wifi you are not using that scarce resource you have in your 4G or 5G contract, is this not actually pricing even more people off the railways and making the service available only to the rich?

[Baroness Vere of Norbiton (Con)]

As I have said many times, business cases will be drawn up by the train operating companies, and those considerations will be top of mind.

[Lord Brooke of Alverthorpe (Lab)]

Can the noble Baroness let the noble Lord, Lord Berkeley, and the House know just what saving would be made if wifi were withdrawn, and what alternatives might be available to keep it running?

[Baroness Vere of Norbiton (Con)]

Of course, I cannot say that at the moment because there is no plan to completely withdraw all wifi from across the network. That is the whole point. However, once the business cases have been done and there is an agreement as to which wifi might continue and which might not—one might assume that it would be a prerequisite on longer journeys, but I am not going to prejudge the outcome of the business cases—at that stage we will have a better idea of the future economics.

Arrangement of Business

Thursday 25th May 2023 Lords Chamber

Announcement of Recess Dates

11:50

[Baroness Williams of Trafford (Con)]

My Lords, I bring good news. I am delighted to announce the current plan for recess dates for the rest of the year. To save noble Lords from rushing to write them down, or trying to remember them, the full list of dates is now available in the Royal Gallery, in the usual place.

As previously announced, the current plan is for Summer Recess to commence at the conclusion of business on Wednesday 26 July. We will return on Monday 4 September. We will then rise on Thursday 21 September for Conference Recess and return on Monday 16 October. We will rise for Christmas Recess on Tuesday 19 December and return on Monday 8 January. The usual caveats apply: these dates are subject to the progress of business. Any changes and further recess dates will be announced in the usual way.

Environmental Permitting (England and Wales) (Amendment) (England) Regulations 2023

Thursday 25th May 2023 Lords Chamber

Motion to Approve

11:51

Moved by

[Lord Benyon]

That the draft Regulations laid before the House on 23 March be approved.

Relevant document: 36th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument). Considered in Grand Committee on 22 May.

Motion agreed.

Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023

Thursday 25th May 2023 Lords Chamber

Motion to Approve

11:51

Moved by

[Baroness Scott of Bybrook]

That the draft Regulations laid before the House on 30 March be approved.

Relevant document: 37th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument). Considered in Grand Committee on 16 May.

Motion agreed.

Online Safety Bill

Committee stage
Thursday 25th May 2023 Lords Chamber

Committee (9th Day)

11:52

Relevant document: 28th Report from the Delegated Powers Committee

Clause 49: “Regulated user-generated content”, “user-generated content”, “news publisher content”

Amendment 125

Moved by

[Baroness Harding of Winscombe]

125: Clause 49, page 47, line 22, at end insert—
“(c) machine-generated content is to be regarded as user-generated content of a service if—(i) the creation or use of the machine-generated content involves interacting with user-generated content,(ii) it takes the form or identity of a user,(iii) it provides content that constitutes illegal, primary priority content or priority content, or would constitute it if created in another format, or(iv) a user has in any way facilitated any element of the generation by way of a command, prompt, or any other instruction, however minimal.”Member’s explanatory statement
This amendment would add machine-generated content to regulated content in the bill and gives meaning to how it could be regarded as ‘user-generated content’ of the service, and allows virtual and augmented reality material to be treated on an equal basis as on other formats.

[Baroness Harding of Winscombe (Con)]

My Lords, I rise to introduce this group. On Tuesday in Committee, I said that having reached day 8 of the Committee we had all found our roles; now, I find myself in a different role. The noble Baroness, Lady Kidron, is taking an extremely well-earned holiday and was never able to be in the House today. She has asked me to introduce this group and specifically to speak to Amendment 125 in her name.

I strongly support all the amendments in the group, particularly those that would result in a review, but will limit my words to Amendment 125. I also thank the other co- signatories, the noble Baroness, Lady Finlay, who is in her place, and my noble friend Lord Sarfraz, who made such a compelling speech at Second Reading on the need for the Bill to consider emerging technologies but who is also, sadly, abroad, on government business.

I start with something said by Lord Puttnam, and I paraphrase: that we were forbidden from incorporating the word “digital” throughout the whole process of scrutiny of the communications Act in 2002. As a number of us observed at the time, he said, it was a terrible mistake not to address or anticipate these issues when it was obvious that we would have to return to it all at some later date. The Online Safety Bill is just such a moment: “Don’t close your eyes and hope”, he said, “but look to the future and make sure that it is represented in the Bill”.

With that in mind, this amendment is very modest. I will be listening carefully, as I am sure the noble Baroness, Lady Kidron, will from a distance, to my noble friend the Minister because if each aspect of this amendment is already covered in the Bill, as I suspect he will want to say, then I would be grateful if he could categorically explain how that is the case at the Dispatch Box, in sufficient detail that a future court of law can clearly understand it. If he cannot state that then I will be asking the House, as I am sure the noble Baroness, Lady Kidron, would, to support the amendment’s inclusion in the Bill.

There are two important supporters of this amendment. If the Committee will forgive me, I want to talk briefly about each of them because of the depth of understanding of the issues they have. The first is an enforcement officer who I shall not name, but I and the noble Baroness, Lady Kidron, want to thank him and his team for the extraordinary work that they do, searching out child sexual abuse in the metaverse. The second, who I will come to in a little bit, is Dr Geoff Hinton, the inventor of the neural network and most often referred to as “the godfather of AI”, whom the noble Baroness, Lady Kidron, met last week. Both are firm supporters of this amendment.

The amendment is part of a grouping labelled future-proofing but, sadly, this is not in the future. It is with us now. The rise of child sexual abuse in the metaverse is growing phenomenally. Two months ago, at the behest of the Institution of Engineering and Technology, the noble Baroness, Lady Kidron, hosted a small event at which members of a specialist police unit explained to colleagues from both Houses that what they were finding online was amongst the worst imaginable, but was not adequately caught by existing laws. I should just warn those listening to or reading this—I am looking up at the Public Gallery, where I see a number of young people listening to us—that I am about to briefly recount some really horrific stuff from what we saw and heard.

The quality of AI imagery is now at the point where a realistic AI image of a child can be produced. Users are able to produce or order indecent AI images, based on a child known to them. Simply by uploading a picture of a next door neighbour’s child or a family member, or taking a child’s image from social media and putting that face on existing abuse images, they can create a body for that picture or, increasingly, make it 3D and take it into an abuse room. The type of imagery produced can vary from suggestive or naked to penetrative sex; for the most part, I do not think I should be repeating in this Chamber the scenarios that play out.

VR child avatars can be provided with a variety of bespoke abuse scenarios, which the user can then interact with. Tailor-made VR experiences are being advertised for production on demand. They can be made to meet specific fetishes or to feature a specific profile of a child. The production of these VR abuse images is a commercial venture. Among the many chilling facts we learned was that the Oculus Meta Quest 2, which is the best-selling VR headset in the UK, links up to an app that is downloaded on to the user’s mobile phone. Within that app, the user can search for other users to follow and engage with—either through the VR headset or via instant messaging in their mobile app. A brief search through the publicly viewable user profiles on this app shows a huge number of profiles with usernames indicative of a sexual interest in children.

Six weeks after the event, the noble Baroness, Lady Kidron, spoke to the same officer. He said that already the technology was a generation on—in just six weeks. The officer made a terrible and terrifying prediction: he said that in a matter of months this violent imagery, based on and indistinguishable from an actual known child, will evolve to include moving 3D imagery and that at that point, the worlds of VR and AI will meet and herald a whole new phase in offending. I will quote this enforcement officer. He said:

“I hate to think where we will be in six months from now”.


While this group is labelled as future-proofing the Bill, I remind noble Lords that in six months’ time, the provisions of the Bill will not have been implemented. So this is not about the future; it is actually about the now.

12:00

Even though what I am describing is abhorrent, to some it may appear to be a victimless crime or a thought crime that might take the place of real crimes, since it could be argued that nobody gets hurt. There are three points to say against that. First, evidence shows that rehearsing child-abuse fantasies online radically accelerates the offender pathway—the length of time between looking at images and abusing a child. Secondly, the relative anonymity of the online world has enabled and supercharged the spread of such content and risks, normalising its production and consumption. Thirdly, the current advances in AI allow perpetrators to create and share thousands of images of a child in a matter of minutes. That leaves the police overwhelmed with the impossible task of distinguishing between the AI-created children and the real children who are being abused. The sheer volume of abuse imagery can remain undiscovered and therefore unreached. This is a perverse and chilling game of whack-a-mole.

A small band of enforcement officers are crying out for our help because they are concerned that existing law does not reach this material and that blurring the role of machine and master risks undermining their ability to enforce the law. While Sections 62 to 69 and Schedule 13 of the Coroners and Justice Act 2009 go some way towards bringing certain computer-generated images into the scope of the law, much of the sexual offences law fails to reach the online world. As a result, the enforcement community is struggling to deal with the new generation of automated and semi-automated systems that create not only abuse images but abusive scenarios at the touch of a button. As the police officer explained to us, the biggest change required is the provision of specific offences covering virtual abuse in the VR social environment, to protect children in those areas against the psychological impact of virtual abuse.

This amendment makes a small change to the definition of “content”, to make clear that machine-generated content is to be regarded as user-generated content of a service, under the following circumstances: first, if the creation or use of the content interacts with user-generated content; secondly, if it takes the form or identity of a user; thirdly, if it provides content that would reach the bar of illegal primary priority content or priority content in another format; and finally, if a user has in any way facilitated any element of the generation by way of a command prompt or any other instruction, however minimal. This would go a long way to support the police in their unenviable task.

When my noble friend the Minister responds, I would ask that he confirms that the scope of the Bill—user-to-user services and search—does not fetter law enforcement. We discussed services of limited functionality being out of scope earlier in Committee, when discussing Amendment 2. For example, would a person or an automated process creating this material at scale, with no user-to-user functionality, be out of scope? The concern must be that existing laws covering child sexual abuse do not address the current state of technology, and this Bill may be drawn too narrowly to catch the abuse that is happening at ever-increasing scale.

Finally, this brings me to Dr Geoff Hinton. After a decade at Google, he retired and has chosen to speak freely about his profound worries concerning the future of AI, joining the chorus of those on the front line who are demanding that we regulate it before it is too late. I am a keen and enthusiastic early adopter of new technology, but we should listen very carefully to his concerns. He says that AI systems can learn and provide a compelling view of the world at such speed and scale that, in the hands of bad actors, they will in the very near future obliterate any version of a common reality. A deluge of fake images, videos and texts will be the data upon which future AI-driven communication will be built, leaving all of us unable to distinguish between fact and fiction. That is a very scary view of the world and we should take his professional concern very seriously, particularly when we focus on this Bill and how we protect our children in this world.

Given the scope of the Bill, we obviously will not be able to address every one of the hopes or fears of AI as it stretches out ahead of us, but it is a huge mistake for the Online Safety Bill to pretend that this future is not already with us. In this amendment and the whole group, we are attempting to put in the Bill the requirements to recognise those future dangers. As Dr Hinton has made clear, it is necessary to treat the fake as if it were real today, because we are no longer certain what is fake and what is real. We do a disservice to our children if we do not recognise that reality today.

I appreciate that I have spoken for far too long on this very small amendment. It closes a loophole which means that if machine-generated material is imitating user-to-user behaviour, takes the form of a user, or would in another context meet the bar of illegal primary priority content or priority content, it should be treated as such under the safety duties of the Bill. That is all it does. This would prevent the police standing by as the horrific rise in the use of abuse rooms—which act as a rehearsal for abusing children—continues. It is much needed and an essential first step down this road. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am very grateful to the noble Baroness, Lady Harding, for the way she introduced this group of amendments. I have added my name to Amendment 125 and have tabled probing Amendments 241 and 301 in an attempt to future-proof the Bill. As the noble Baroness has said, this is not the future but today, tomorrow and forever, going forwards.

I hope that there are no children in the Public Gallery, but from my position I cannot see.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

There are some children in the Public Gallery.

[Baroness Finlay of Llandaff (CB)]

Then I shall slightly modify some of the things I was going to say.

When this Bill was conceived, the online world was very different from how it is today. It is hard to imagine how it will look in the future. I am very grateful to the noble Baroness, Lady Berridge, and the Dawes Centre for Future Crime at UCL, for information that they have given to me. I am also grateful to my noble friend Lady Kidron, and the enforcement officers who have shared with us images which are so horrific that I wish that I had never seen them—but you cannot unsee what you have seen. I admire how they have kept going and maintained a moral compass in their work.

The metaverse is already disrupting the online world as we know it. By 2024, it is estimated that there will be 1.7 billion mobile augmented-reality user devices worldwide. More than one-fifth of five to 10 year-olds already have a virtual reality headset of their own, or have asked for similar technology as a gift. The AI models are also developing quickly. My Amendment 241 would require Ofcom to be alert to the ways in which emerging technologies allow for activities that are illegal in the real world to be carried out online, to identify the places where the law is not keeping up to date with technological developments.

The metaverse seems to have 10 attributes. It is multiuser and multipurpose, content is user-generated, it is immersive, and spatial interactions occur in virtual reality or have physical environments enhanced by augmented reality. Its digital aspects do not expire when the experience ends, and it is multiplatform and interoperable, as users move between platforms. Avatars are involved, and in the metaverse there is ownership of the avatars or other assets such as virtual property, cryptocurrency et cetera. These attributes allow it to be used to master training scenarios of complex situations, such as in surgical training for keyhole surgery, where it can improve accuracy rapidly. On the horizon are brain/computer interfaces, which may be very helpful in rehabilitative adaptation after severe neurological damage.

These developments have great potential. However, dangers arise when virtual and augmented reality devices are linked to such things as wearable haptic suits, which allow the user to feel interactions through physical sensation, and teledildonics, which are electronic devices that simulate sexual interaction.

With the development of deep-fake imagery, it is now possible for an individual to order a VR experience of abusing the image of a child whom they know. The computer-generated images are so realistic that they are almost impossible to distinguish from those that would be cartoon-generated. An avatar can sexually assault the avatar of a minor, and such an avatar of the minor can be personalised. Worryingly, there have been growing reports of these assaults and rapes happening. Since the intention of VR is to trick the human nervous system into experiencing perceptual and bodily reactions, while such a virtual assault may not involve physical touching, the psychological, neurological and emotional experience can be similar to a physical assault.

This fuels sex addiction and violence addiction, and is altering the offender pathway: once the offender has engaged with VR abuse material, there is no desire to go back to 2D material. Offenders report that they want more: in the case of VR, that would be moving to live abuse, as has been said. The time from the development of abnormal sexual desires to real offending is shortened as the offender seeks ever-increasing and diverse stimulation to achieve the same reward. Through Amendment 125, such content would be regarded as user-generated.

Under Amendment 241, Ofcom could suggest ways in which Parliament may want to update the current law on child pornography to catch such deep-fake imagery, as these problematic behaviours are illegal in the real world but do not appear to be illegal online or in the virtual world.

Difficulties also arise over aspects of terrorism. It is currently a criminal offence to attend a terrorist training ground. Can the Minister confirm that Amendment 136C, which we have debated and which will be moved in a later group, would make attending a virtual training ground illegal? How will Ofcom be placed to identify and close any loopholes?

The Dawes Centre for Future Crime has identified 31 unique crime threats or offences which are risks in the metaverse, particularly relating to child sexual abuse material, child grooming, investment scams, hate crime, harassment and radicalisation.

I hope the Minister can confirm that the Bill already applies to the metaverse, with its definition of user-to-user services and technology-neutral terminology, and that its broad definition of “encountering” includes experiencing content such as haptic suits or virtual or augmented reality through the technology-neutral expression “or other automated tool”. Can the Minister also confirm that the changes made in the other place in Clause 85 require providers of metaverse services to consider the level of risk of the service being used for the commission or facilitation of a priority offence?

The welcome addition to the Bill of a risk assessment duty, however, should be broadened to include offences which are not only priority offences. I ask the Minister: will the list of offences in Schedules 5 to 7 to the Bill be amended to include the option of adding to this list to cover other harmful offences such as sexual offences against adults, impersonation scams, and cyber physical attacks such as cyber burglary, which can lead to planned burglary, attacks on key infrastructure and assault?

The ability to expand the risk assessment criteria could future-proof the Bill against such offences by keeping the list open, rather than closed as it is at the moment, to other serious offences committed in user-to-user or combined service providers. Such duties should apply across all services, not only those in category 1, because the smaller platforms, which are not covered by empowerment duties, may present a particularly high risk of illegal content and harmful behaviours.

Can the Minister therefore please tell us how content that is illegal in the real world will be reported, and how complaints can be made when it is encountered, if it is not a listed priority offence in the Bill? Will the Government expand the scope to cover not only illegal content, as defined in Clauses 207 and 53, but complex activities and interactions that are possible in the metaverse? How will the list of priority offences be expanded? Will the Government amend the Bill to enable Ofcom to take a risk-based approach to identifying who becomes classified as a category 1 provider?

I could go on to list many other ways in which our current laws will struggle to remain relevant against the emerging technologies. The list’s length shows the need for Ofcom to be able to act and report on such areas—and that Parliament must be alive to the need to stay up to date.

[Lord Harlech (Con)]

My Lords, I am grateful to the noble Baroness, Lady Finlay of Llandaff, for tempering her remarks. On tempering speeches and things like that, I can inform noble Lords that the current school group have been escorted from the Chamber, and no further school groups will enter for the duration of the debate on this group of amendments.

12:15

[Baroness Berridge (Con)]

My Lords, I rise to support Amendment 241, in the name of the noble Baroness, Lady Finlay, as she mentioned. I also spoke in the Private Member’s Bill that the noble Baroness previously brought before your Lordships’ House, in a similar vein, regarding future-proofing.

The particular issue in Amendment 241 that I wish to address is

“the extent to which new communications and internet technologies allow for behaviours which would be in breach of the law if the equivalent behaviours were committed in the physical world”.

The use of “behaviours” brings into sharp focus the applicability of the Online Safety Bill in the metaverse. Since that Private Member’s Bill, I have learned much about future-proofing from the expert work of the Dawes Centre for Future Crime at UCL. I reached out to the centre as it seemed to me that some conduct and crimes in the physical world would not be criminal if committed in the metaverse.

I will share the example, which seems quite banal, that led me to contact them. The office meeting now takes place in the metaverse. All my colleagues are represented by avatars. My firm has equipped me with the most sophisticated haptic suit. During the meeting, the avatar of one of my colleagues slaps the bum of my avatar. The haptic suit means that I have a physical response to that, to add to the fright and shock. Even without such a suit, I would be shocked and frightened. Physically, I am, of course, working in my own home.

[Lord Harlech (Con)]

My Lords, I apologise to my noble friend. I ask that we pause the debate to ask this school group to exit the Chamber. We do not think that the subject matter and content will be suitable for that audience. I am very sorry. The House is pausing.

[Baroness Finlay of Llandaff (CB)]

In this moment while we pause, I congratulate the noble Lord, the Government Whip, for being so vigilant: some of us in the Chamber cannot see the whole Gallery. It is appreciated.

[Baroness Berridge (Con)]

I, too, thank my noble friend the Government Whip. I apologise too if I have spoken out of discourtesy in the Committee: I was not sure whose name was on which amendment, so I will continue.

Physically, I am, of course, working in my home. If that behaviour had happened in the office, it would be an offence, an assault: “intentional or reckless application of unlawful force to another person”. It will not be an offence in the metaverse and it is probably not harassment because it is not a course of conduct.

Although the basic definition of user-to-user content covers the metaverse, as does encountering, as has been mentioned in relation to content under Clause 207, which is broad enough to cover the haptic suits, the restriction to illegal content could be problematic, as the metaverse is a complex of live interactions that mimics real life and such behaviours, including criminal ones. Also, the avatar of an adult could sexually assault the avatar of a child in the metaverse, and with haptic technologies this would not be just a virtual experience. Potentially even more fundamentally than Amendment 125, the Bill is premised on the internet being a solely virtual environment when it comes to content that can harm. But what I am seeking to outline is that conduct can also harm.

I recognise that we cannot catch everything in this Bill at this moment. This research is literally hot off the press; it is only a few weeks old. At the very least, it highlights the need for future-proofing. I am aware that some of the issues I have highlighted about the fundamental difference between conduct and content refer to clauses noble Lords may already have debated. However, I believe that these points are significant. It is just happenstance that the research came out and is hot off the press. I would be grateful if the Minister would meet the Dawes Centre urgently to consider whether there are further changes the Government need to make to the Bill to ensure that it covers the harms I have outlined.

[Viscount Colville of Culross (CB)]

My Lords, I have put my name to Amendments 195, 239 and 263. I also strongly support Amendment 125 in the name of my noble friend Lady Kidron.

During this Committee there have been many claims that a group of amendments is the most significant, but I believe that this group is the most significant. This debate comes after the Prime Minister and the Secretary of State for Science and Technology met the heads of leading AI research companies in Downing Street. The joint statement said:

“They discussed safety measures … to manage risks”


and called for

“international collaboration on AI safety and regulation”.

Surely this Bill is the obvious place to start responding to those concerns. If we do not future-proof this Bill against the changes in digital technology, which are ever increasing at an ever-faster rate, it will be obsolete even before it is implemented.

My greatest concern is the arrival of AI. The noble Baroness, Lady Harding, has reminded us of the warnings from the godfather of AI, Geoffrey Hinton. If he is not listened to, who on earth should we be listening to? I wholeheartedly support Amendment 125. Machine-generated content is present in so much of what we see on the internet, and its presence is increasing daily. It is the future, and it must be within scope of this Bill. I am appalled by the examples that the noble Baroness, Lady Harding, has brought before us.

In the Communications and Digital Committee inquiry on regulating the internet, we decided that horizon scanning was so important that we called for a digital authority to be created which would look for harms developing in the digital world, assess how serious a threat they posed to users and develop a regulated response. The Government did not take up these suggestions. Instead, Ofcom has been given the onerous task of enforcing the triple shield which under this Bill will protect users to different degrees into the future.

Amendment 195 in the name of the right reverend Prelate the Bishop of Oxford will ensure that Ofcom has knowledge of how well the triple shield is working, which must be essential. Surveys of thousands of users undertaken by companies such as Kantar give an invaluable snapshot of what is concerning users now. These must be fed into research by Ofcom to ensure that future developments across the digital space are monitored, updated and brought to the attention of the Secretary of State and Parliament on a regular basis.

Amendment 195 will reveal trends in harms which might not be picked up by Ofcom under the present regime. It will look at the risk arising for individuals from the operation of Part 3 services. Clause 12 on user empowerment duties has a list of content and characteristics from which users can protect themselves. However, the characteristics for which or content with which users can be abused will change over time and these changes need to be researched, anticipated and implemented.

This Bill has proved in its long years of gestation that it takes time to change legislation, while changes on the internet take just minutes or are already here. The regime set up by these future-proofing amendments will at least go some way to protecting users from these fast-evolving harms. I stress to your Lordships’ Committee that this is very much precautionary work. It should be used to inform the Secretary of State of harms which are coming down the line. I do not think it will give power automatically to expand the scope of harms covered by the regime.

Amendment 239 inserts a new clause for an Ofcom future management of risks review. This will help feed into the Secretary of State review regime set out in Clause 159. Clause 159(3)(a) currently looks at ensuring that regulated services are operating using systems and process which, so far as relevant, are minimising the risk of harms to individuals. The wording appears to mean that the Secretary of State will be viewing all harms to individuals. I would be grateful if the Minister could explain to the Committee the scope of the harms set out in Clause 159(3)(a)(i). Are they meant to cover only the harms of illegality and harms to children, or are they part of a wider examination of the harms regime to see whether it needs to be contracted or expanded? I would welcome an explanation of the scope of the Secretary of State’s review.

The real aim of Amendment 263 is to ensure that the Secretary of State looks at research work carried out by Ofcom. I am not sure how politicians will come to any conclusions in the Clause 159 review unless they are required to look at all the research published by Ofcom on future risk. I would like the Minister to explain what research the Secretary of State would rely on for this review unless this amendment is accepted. I hope Amendment 263 will also encourage the Secretary of State to look at possible harms not only from content, but also from the means of delivering this content.

This aim was the whole point of Amendment 261, which has already been debated. However, it needs to be borne in mind when considering that harms come not just from content, but also from the machine technology which delivers it. Every day we read about new developments and threats posed by a fast-evolving internet. Today it is concerns about ChatGPT and the race for the most sophisticated artificial intelligence. The amendments in this group will provide much-needed reinforcement to ensure that the Online Safety Bill remains a beacon for continuing safety online.

[The Lord Bishop of Chelmsford]

My Lords, I shall speak in favour of Amendments 195, 239 and 263, tabled in the names of my right reverend friend the Bishop of Oxford, the noble Lord, Lord Clement-Jones, and the noble Viscount, Lord Colville of Culross, who I thank for his comments.

My right reverend friend the Bishop of Oxford regrets that he is unable to attend today’s debate. I know he would have liked to be here. My right reverend friend tells me that the Government’s Centre for Data Ethics and Innovation, of which he was a founding member, devoted considerable resource to horizon scanning in its early years, looking for the ways in which AI and tech would develop across the world. The centre’s analysis reflected a single common thread: new technologies are developing faster than we can track them and they bring with them the risk of significant harms.

This Bill has also changed over time. It now sets out two main duties: the illegal content duty and the children duty. These duties have been examined and debated for years, including by the joint scrutiny committee. They are refined and comprehensive. Risk assessments are required to be “suitable and sufficient”, which is traditional language from 20 years of risk-based regulation. It ensures that the duties are fit for purpose and proportionate. The duties must be kept up to date and in line with any service changes. Recent government amendments now helpfully require companies to report to Ofcom and publish summaries of their findings.

However, in respect of harms to adults, in November last year the Government suddenly took a different tack. They introduced two new groups of duties as part of a novel triple shield framework, supplementing the duty to remove illegal harms with a duty to comply with their own terms of service and a duty to provide user empowerment tools. These new duties are quite different in style to the illegal content and children duties. They have not benefited from the prior years of consultation.

As this Committee’s debates have frequently noted, there is no clear requirement on companies to assess in the round how effective their implementation of these new duties is or to keep track of their developments. The Government have changed this Bill’s system for protecting adults online late in the day, but the need for risk assessments, in whatever system the Bill is designed around, has been repeated again and again across Committee days. Even at the close of day eight on Tuesday, the noble Lords, Lord Allan of Hallam and Lord Clement-Jones, referred explicitly to the role of risk assessment in validating the Bill’s systems of press reforms. Surely this persistence across days and groups of debate reflects the systemically pivotal role of risk assessments in what is, after all, meant to be a systems and processes rather than a content-orientated Bill.

But it seems that many people on many sides of this Committee believe that an important gap in risk assessment for harms to adults has been introduced by these late changes to the Bill. My colleague the right reverend Prelate is keen that I thank Carnegie UK for its work across the Bill, including these amendments. It notes:

“Harms to adults which might trickle down to become harms to children are not assessed in the current Bill”.


The forward-looking parts of its regime need to be strengthened to ensure that Parliament and the Secretary of State review new ways in which harms manifesting as technology race along, and to ensure that they then have the right advice for deciding what to do about them. To improve that advice, Ofcom needs to risk assess the future and then to report its findings.

12:30

As the Committee can see, Amendment 195 is drawn very narrowly, out of respect for concerns about freedom of expression, even though the Government have still not explained how risk assessment poses any such threat. Ofcom would be able to request information from companies, using its information-gathering powers in Clause 91, to complete its future-proofing risk assessment. That is why, as Carnegie again notes,

“A risk assessment required of OFCOM for the purposes of future proofing alone could fill this gap”

in the Bill’s system,

“without even a theoretical threat to freedom of expression”.

Amendment 239 would require Ofcom to produce a forward-looking report, based on a risk assessment, to inform the Secretary of State’s review of the regime.

Amendment 263 would complete this systemic implementation of risk assessment by ensuring that future reviews of the regime by the Secretary of State include a broad assessment of the harms arising from regulated services, not just regulated content. This amendment would ensure ongoing consideration of risk management, including whether the regime needs expanding or contracting. I urge the Minister to support Amendments 195, 239 and 263.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, like others, I thank the Whips for intervening to protect children from hearing details that are not appropriate for the young. I have to say that I was quite relieved because I was rather squirming myself. Over the last two days of Committee, I have been exposed to more violent pornographic imagery than any adult, never mind a child, should be exposed to. I think we can recognise that this is certainly a challenging time for us.

I do not want any of the comments I will now make to be seen as minimising understanding of augmented reality, AI, the metaverse and so on, as detailed so vividly by the noble Baronesses, Lady Harding and Lady Finlay, in relation to child safety. However, I have some concerns about this group, in terms of proportionality and unintended outcomes.

Amendment 239, in the names of the right reverend Prelate the Bishop of Oxford, the noble Lord, Lord Clement-Jones, and the noble Viscount, Lord Colville of Culross, sums up some of my concerns about a focus on future-proofing. This amendment would require Ofcom to produce reports about future risks, which sounds like a common-sense demand. But my question is about us overly focusing on risk and never on opportunities. There is a danger that the Bill will end up recommending that we see these new technologies only in a negative way, and that we in fact give more powers to expand the scope for harmful content, in a way that stifles speech.

Beyond the Bill, I am more generally worried about what seems to be becoming a moral panic about AI. The precautionary principle is being adopted, which could mean stifling innovation at source and preventing the development of great technologies that could be of huge benefit to humanity. The over-focus on the dangers of AI and augmented reality could mean that we ignore the potential large benefits. For example, if we have AI, everyone could have an immediately responsive GP in their pocket—goodness knows that, for those trying to get an appointment, that could be of great use and benefit. It could mean that students have an expert tutor in every subject, just one message away. The noble Baroness, Lady Finlay, spoke about the fantastic medical breakthroughs that augmented reality can bring to handling neurological damage. Last night, I cheered when I saw how someone who has never been able to walk now can, through those kinds of technologies. I thought, “Isn’t this a brilliant thing?” So all I am suggesting is that we have to be careful that we do not see these new technologies only as tools for the most perverted form of activity among a small minority of individuals.

I note, with some irony, that fewer qualms were expressed by noble Lords about the use of AI when it was proposed to scan and detect speech or images in encrypted messages. As I argued at the time, this would be a threat to WhatsApp, Signal and so on. Clauses 110 and 124 have us using AI as a blunt proactive technology of surveillance, despite the high risks of inaccuracy, error and false flags. But there was great enthusiasm for AI then, when it was having an impact on individuals’ freedom of expression—yet, here, all we hear are the negatives. So we need to be balanced.

I am also concerned about Amendment 125, which illustrates the problem of seeing innovation only as a threat to safety and a potential problem. For example, if the Bill considers AI-generated content to be user-generated content, only large technology companies will have the resources—lawyers and engineers—necessary to proceed while avoiding crippling liability.

In practice, UK users risk being blocked out from new technologies if we are not careful about how we regulate here. For example, users in the European Union currently cannot access Google Bard AI assistant because of GDPR regulations. That would be a great loss because Google Bard AI is potentially a great gain. Despite the challenges of the likes of ChatGPT and Bard AI that we keep reading about, with people panicking that this will lead to wide-scale cheating in education and so on, this has huge potential as a beneficial technology, as I said.

I have mentioned that one of the unintended consequences—it would be unintended—of the whole Bill could be that the UK becomes a hostile environment for digital investment and innovation. So start-ups that have been invested in—like DeepMind, a Google-owned and UK-based AI company—could be forced to leave the UK, doing huge damage to the UK’s digital sector. How can the UK be a science and technology superpower if we end up endorsing anti-innovation, anti-progress and anti-business measures by being overly risk averse?

I have the same concerns about Amendment 286, which requires periodic reviews of new technology content environments such as the metaverse and other virtual augmented reality settings. I worry that it will not be attractive for technology companies to confidently invest in new technologies if there is this constant threat of new regulations and new problems on the horizon.

I have a query that mainly relates to Amendment 125 but that is also more general. If virtual augmented reality actually involves user-to-user interaction, like in the metaverse, is it not already covered in the Bill? Why do we need to add it in? The noble Baroness, Lady Harding, said that it has got to the point where we are not able to distinguish fake from real, and augmented reality from reality. But she concludes that that means that we should treat fake as real, which seems to me to rather muddy the waters and make it a fait accompli. I personally—

[Baroness Harding of Winscombe (Con)]

I am sorry to interrupt, but I will make a clarification; the noble Baroness is misinterpreting what I said. I was actually quoting the godfather of AI and his concerns that we are fast approaching a space where it will be impossible—I did not say that it currently is—to distinguish between a real child being abused and a machine learning-generated image of a child being abused. So, first, I was quoting the words of the godfather of AI, rather than my own, and, secondly, he was looking forward—only months, not decades—to a very real and perceived threat.

[Baroness Fox of Buckley (Non-Afl)]

I personally think that it is pessimistic view of the future to suggest that humanity cannot rise to the task of being able to distinguish between deep fakes and real images. Organising all our lives, laws and liberties around the deviant predilections of a minority of sexual offenders on the basis that none of us will be able to tell the difference in the future, when it comes to that kind of activity, is rather dangerous for freedom and innovation.

[Lord Russell of Liverpool (CB)]

My Lords, I will speak very briefly. I could disagree with much of what the noble Baroness just said, but I do not need to go there.

What particularly resonates with me today is that, since I first entered your Lordships’ House at the tender age of 28 in 1981, this is the first time I can ever remember us having to rein back what we are discussing because of the presence of young people in the Public Gallery. I reflect on that, because it brings home the gravity of what we are talking about and its prevalence; we cannot run away or hide from it.

I will ask the Minister about the International Regulatory Cooperation for a Global Britain: Government Response to the OECD Review of International Regulatory Cooperation of the UK, published 2 September 2020. He will not thank me for that, because I am sure that he is already familiar and word-perfect with this particular document, which was pulled together by his noble friend, the noble Lord, Lord Callanan. I raise this because, to think that we can in any way, shape or form, with this piece of legislation, stem the tide of what is happening in the online world—which is happening internationally on a global basis and at a global level—by trying to create regulatory and legal borders around our benighted island, is just for the fairies. It is not going to happen.

Can the Minister tell us about the degree to which, at an international level, we are proactively talking to, and learning from, other regulators in different jurisdictions, which are battling exactly the same things that we are? To concentrate the Minister’s mind, I will point out what the noble Lord, Lord Callanan, committed the Government to doing nearly three years ago. First, in relation to international regulatory co-operation, the Government committed to

“developing a whole-of-government IRC strategy, which sets out the policies, tools and respective roles of different departments and regulators in facilitating this; … developing specific tools and guidance to policy makers and regulators on how to conduct IRC; and … establishing networks to convene international policy professionals from across government and regulators to share experience and best practice on IRC”.

I am sure that, between now and when he responds, he will be given a detailed answer by the Bill team, so that he can tell us exactly where the Government, his department and Ofcom are in carrying out the commitments of the noble Lord, Lord Callanan.

[Baroness Benjamin (LD)]

My Lords, although I arrived a little late, I will say, very briefly, that I support the amendments wholeheartedly. I support them because I see this as a child protection issue. People viewing AI, I believe, will lead to them going out to find real children to sexually abuse. I will not take up any more time, but I wholeheartedly agree with everything that has been said, apart from what the noble Baroness, Lady Fox, said. I hope that the Minister will look very seriously at the amendments and take them into consideration.

12:45

[Lord Allan of Hallam (LD)]

My Lords, on behalf of my noble friend Lord Clement-Jones, I will speak in support of Amendments 195, 239, 263 and 286, to which he added his name. He wants me to thank the Carnegie Trust and the Institution of Engineering and Technology, which have been very helpful in flagging relevant issues for the debate.

Some of the issues in this group of amendments will range much more widely than simply the content we have before us in the Online Safety Bill. The right reverend Prelate the Bishop of Chelmsford is right to flag the question of a risk assessment. People are flagging to us known risks. Once we have a known risk, it is incumbent on us to challenge the Minister to see whether the Government are thinking about those risks, regardless of whether the answer is something in the Online Safety Bill or that there needs to be amendments to wider criminal law and other pieces of legislation to deal with it.

Some of these issues have been dealt with for a long time. If you go back and look at the Guardian for 9 May 2007, you will see the headline,

“Second Life in virtual child sex scandal”.


That case was reported in Germany about child role-playing in Second Life, which is very similar to the kind of scenarios described by various noble Lords in this debate. If Second Life was the dog that barked but did not bite, we are in quite a different scenario today, not least because of the dramatic expansion in broadband technology, for which we can thank the noble Baroness, Lady Harding, in her previous role. Pretty much everybody in this country now has incredible access, at huge scale, to high-speed broadband, which allows those kinds of real life, metaverse-type environments to be available to far more people than was possible with Second Life, which tended to be confined to a smaller group.

The amendments raise three significant groups of questions: first, on scope, and whether the scope of the Online Safety Bill will stretch to what we need; secondly, on behaviour, including the kinds of new behaviours, which we have heard described, that could arise as these technologies develop; and, finally, on agency, which speaks to some of the questions raised by the noble Baroness, Lady Fox, on AIs, including the novel questions about who is responsible when something happens through the medium of artificial intelligence.

On scope, the key question is whether the definition of “user-to-user”, which is at the heart of the Bill, covers everything that we would like to see covered by the Bill. Like the noble Baroness, Lady Harding, I look forward to the Minister’s response; I am sure that he has very strongly prepared arguments on that. We should take a moment to give credit to the Bill’s drafters for coming up with these definitions for user-to-user behaviours, rather than using phrases such as, “We are regulating social media or specific technology”. It is worth giving credit, because a lot of thought has gone into this, over many years, with organisations such as the Carnegie Trust. Our starting point is a better starting point than many other legislative frameworks which list a set of types of services; we at least have something about user-to-user behaviours that we can work with. Having said that, it is important that we stress-test that definition. That is what we are doing today: we are stress-testing, with the Minister, whether the definition of “user-to-user” will still apply in some of the novel environments.

It certainly seems likely—and I am sure that the Minister will say this—that a lot of metaverse activity would be in scope. But we need detailed responses from the Minister to explain why the kinds of scenario that have been described—if he believes that this is the case; I expect him to say so—would mean that Ofcom would be able to demand things of a metaverse provider under the framework of the user-to-user requirements. Those are things we all want to see, including the risk assessments, the requirement to keep people away from illegal content, and any other measures that Ofcom deems necessary to mitigate the risks on those platforms.

It will certainly be useful for the Minister to clarify one particular area. Again, we are fortunate in the UK that pseudo-images of child sexual abuse are illegal and have been illegal for a long time. That is not the case in every country around the world, and the noble Lord, Lord Russell, is quite right to say that this an area where we need international co-operation. Having dealt with it on the platforms, some countries have actively chosen not to criminalise pseudo-images; others just have not considered it.

In the UK, we were ahead of the game in saying, “If it looks like a photo of child abuse, we don’t care whether you created it on Photoshop, or whatever—it is illegal”. I hope that the Minister can confirm that avatars in metaverse-type environments would fall under that definition. My understanding is that the legislation refers to photographs and videos. I would interpret an avatar or activity in a metaverse as a photo or video, and I hope that is what the Government’s legal officers are doing.

Again, it is important in the context of this debate and the exchange that we have just had between the noble Baronesses, Lady Harding and Lady Fox, that people out there understand that they do not get away with it. If you are in the UK and you create a child sexual abuse image, you can be taken to court and go to prison. People should not think that, if they do it in the metaverse, it is okay—it is not okay, and it is really important that that message gets out there.

This brings us to the second area of behaviours. Again, some of the behaviours that we see online will be extensions of existing harms, but some will be novel, based on technical capabilities. Some of them we should just call by their common or garden term, which is sexual harassment. I was struck by the comments of the noble Baroness, Lady Berridge, on this. If people go online and start approaching other people in sexual terms, that is sexual harassment. It does not matter whether it is happening in a physical office, on public transport, on traditional social media or in the metaverse—sexual harassment is wrong and, particularly when directed at minors, a really serious offence. Again, I hope that all the platforms recognise that and take steps to prevent sexual harassment on their platforms.

That is quite a lot of the activity that people are concerned about, but others are much more complex and may require updates to legislation. Those are particularly activities such as role-playing online, where people play roles and carry out activities that would be illegal if done in the real world. That is particularly difficult when it is done between consenting adults, when they choose to carry out a role-playing activity that replicates an illegal activity were it to take place in the real world. That is hard—and those with long memories may remember a group of cases around Operation Spanner in the 1990s, whereby a group of men was prosecuted for consensual sadomasochistic behaviour. The case went backwards and forwards, but it talked to something that the noble Baroness, Lady Fox, may be sympathetic to—the point at which the state should intervene on sexual activities that many people find abhorrent but which take place between consenting adults.

In the context of the metaverse, I see those questions coming front and centre again. There are all sorts of things that people could role-play in the metaverse, and we will need to take a decision on whether the current legislation is adequate or needs to be extended to cater for the fact that it now becomes a common activity. Also important is the nature of it. The fact that it is so realistic changes the nature of an activity; you get a gut feeling about it. The role-playing could happen today outside the metaverse, but once you move it in there, something changes. Particularly when children are involved, it becomes something that should be a priority for legislators—and it needs to be informed by what actually happens. A lot of what the amendments seek to do is to make sure that Ofcom collects the information that we need to understand how serious these problems are becoming and whether they are, again, something that is marginal or something that is becoming mainstream and leading to more harm.

The third and final question that I wanted to cover is the hardest one—the one around agency. That brings us to thinking about artificial intelligence. When we try to assign responsibility for inappropriate or illegal behaviour, we are normally looking for a controlling mind. In many cases, that will hold true online as well. I know that the noble Lord, Lord Knight of Weymouth, is looking at bots—and with a classic bot, you have a controlling mind. When the bots were distributing information in the US election on behalf of Russia, that was happening on behalf of individuals in Russia who had created those bots and sent them out there. We still had a controlling mind, in that instance, and a controlling mind can be prosecuted. We have that in many instances, and we can expect platforms to control them and expect to go after the individuals who created the bots in the same way that we would go after things that they do as a first party. There is a lot of experience in the fields of spam and misinformation, where “bashing the bots” is the daily bread and butter of a lot of online platforms. They have to do it just to keep their platforms safe.

We can also foresee a scenario with artificial intelligence whereby it is less obvious that there is a controlling mind or who the controlling mind should be. I can imagine a situation whereby an artificial intelligence has created illegal content, whether that is child sexual abuse material or something else that is in the schedule of illegal content in the Bill, without the user having expected it to happen or the developer having believed or contemplated that it could happen. Let us say that the artificial intelligence goes off and creates something illegal, and that both the user and the developer can show the question that they asked of the artificial intelligence and show how they coded it, showing that neither of them intended for that thing to happen. In the definition of artificial intelligence, it has its own agency in that scenario. The artificial intelligence cannot be fined or sent to prison. There are some things that we can do: we can try to retrain it, or we can kill it. There is always a kill switch; we should never forget that with artificial intelligence. Sam Altman at OpenAI can turn off ChatGPT if it is behaving in an illegal way.

There are some really important questions around that issue. There is the liability for the specific instance of the illegality happening. Who do we hold liable? Even if everyone says that it was not their intention, is there someone that we can hold liable? What should the threshold be at which we can execute that death sentence on the AI? If an AI is being used by millions of people and on a small number of occasions it does something illegal, is that sufficient? At what point do we say that the AI is rogue and that, effectively, it needs to be taken out of operation? Those are much wider questions than we are dealing with immediately with in the Bill, but I hope that the Minister can at least point to what the Government are thinking about these kind of legal questions, as we move from a world of user-to-user engagement to user-to-user-to-machine engagement, when that machine is no longer a creature of the user.

[Baroness Berridge (Con)]

I have had time just to double-check the offences. The problem that exists—and it would be helpful if my noble friend the Minister could confirm this—is that the criminal law is defined in terms of person. It is not automatic that sexual harassment, particularly if you do not have a haptic suit on, would actually fall within the criminal law, as far as I understand it, which is why I am asking the Minister to clarify. That was the point that I was making. Harassment per se also needs a course of conduct, so if it was not a touch of your avatar in a sexual nature, it clearly falls outside criminal law. That is the point of clarification that we might need on how the criminal law is framed at the moment.

[Lord Allan of Hallam (LD)]

I am grateful to the noble Baroness. That is very helpful.

[Baroness Harding of Winscombe (Con)]

That is exactly the same issue with child sexual abuse images—it is about the way in which criminal law is written. Not surprisingly, it is not up to date with evolution of technology.

[Lord Allan of Hallam (LD)]

I am grateful for that intervention as well. That summarises the core questions that we have for the Minister. Of the three areas that we have for him, the first is the question of scope and the extent to which he can assure us that the Bill as drafted will be robust in covering the metaverse and bots, which are the issues that have been raised today. The second is on behaviours and to the two interventions that we have just had. We have been asking whether, with the behaviours that are criminal today, that criminality will stretch to new, similar forms of behaviour taking place in new environments—let us put it that way. The behaviour, the intent and the harm are the same, but the environment is different. We want to understand the extent to which the Government are thinking about that, where that thinking is happening and how confident they are that they can deal with that.

Finally, on the question of agency, how do the Government expect to deal with the fact that we will have machines operating in a user-to-user environment when the connection between the machine and another individual user is qualitatively different from anything that we have seen before? Those are just some small questions for the Minister on this Thursday afternoon.

[Lord Knight of Weymouth (Lab)]

My Lords, the debate on this group has been a little longer, deeper and more important than I had anticipated. It requires all of us to reflect before Report on some of the implications of the things we have been talking about. It was introduced masterfully by the noble Baroness, Lady Harding, and her comments—and those from the noble Baronesses, Lady Finlay and Lady Berridge—were difficult to listen to at times. I also congratulate the Government Whip on the way he handled the situation so that innocent ears were not subject to some of that difficult listening. But the questions around the implications of virtual reality, augmented reality and haptic technology are really important, and I hope the Minister will agree to meet with the noble Baroness, Lady Berridge, and the people she referenced to reflect on some of that.

13:00

The noble Baroness, Lady Fox, raised some of the right questions around the balance of this debate. I am a technology enthusiast, so I will quote shortly from my mobile phone, which I use for good, although a lot of this Bill is about how technology is used for bad. I am generally of the view that we have a responsibility to put some safety rails around this technology. I know that the noble Baroness agrees, in respect of children in particular. As ever, in responding to her, I end up saying “It’s all about balance” in the same way as the Minister ends up saying “It’s all about unintended consequences”.

Amendments 283ZZA and 283ZZB in my name are, as the noble Lord, Lord Allan, anticipated, about who controls autonomous bots. I was really grateful to hear his comments, because I put down the amendments on a bit of a hunch without being that confident that I understood what I was talking about technically. He understands what he is talking about much better than I do in this regard, so it is reassuring that I might be on to something of substance.

I was put on to it by reading a New York Times article about Geoffrey Hinton, the now labelled “Godfather of AI”. The article stated:

“Down the road, he is worried that future versions of the technology pose a threat to humanity because they often learn unexpected behavior from the vast amounts of data they analyse. This becomes an issue, he said, as individuals and companies allow AI systems not only to generate their own computer code but actually run that code on their own”.

As a result, I went to OpenAI’s ChatGPT and asked whether it could create code. Of course, it replied that it could help me with creating code. I said, “Can you code me a Twitter bot?” It said, “Certainly, I can help you create a basic Twitter bot using Python. Here is an example of a Twitter bot that post tweets”. Then I got all the instructions on how to do it. The AI will help me get on and create something that starts then to be able to create autonomous behaviours and activity. It is readily available to all of us now, and that should cause us some concern.

The Bill certainly needs to clarify—as the amendment tabled by the noble Baroness, Lady Kidron, and introduced so well by the noble Baroness, Lady Harding, goes to—whether or not a bot is a user. If a bot is a user and the Minister can assure us of that, things get a lot easier. But given that it is possible to code a realistic avatar generating its own content and behaviour in the metaverse, the core question I am driving at is: who is responsible for that behaviour? Is it the person who is deemed to be controlling it, as it says in Clause 170(7), which talks about

“a person who may be assumed to control the bot or tool”?

As the noble Lord, Lord Allan, said, that is not always going to be that straightforward when behaviours start to be something that the AI itself generates, and it generates behaviours that are not expected by the person who might be perceived to have controlled it. No one really controls it; the creator does not necessarily control it. I am just offering the simple amendment “or owns it” to allow some legal culpability to be clarified. It might be that the supplier of the virtual environment is culpable. These are questions that I am seeking to answer with my amendment from the Minister, so that we get clarity on how Ofcom is supposed to regulate all of these potential harms in the future.

Some months ago, I went to a Speaker’s Lecture given by Stuart Russell, who delivered the Reith Lectures around AI. He talked about the programming of an AI-powered vacuum cleaner that was asked to clear up as much dirt as possible. What then plays out is that the vacuum cleaner gets a bit of dirt up off the carpet and then spews it out and picks it up again, because that is the way of maximising the intent of the programming. It is very difficult to anticipate the behaviour of AI if you do not get the instructions exactly right. And that is the core of what we are worried about. Again, when I asked ChatGPT to give me some guidance on a speaking note to this question, it was quite helpful in also guiding me towards an embedded danger of bias and inequity. The AI is trained by data; we know a certain amount about the bias of data, but it is difficult to anticipate how that will play out as the AI feeds and generates its own data.

The equity issues that can then flow are something that we need to be confident that this legislation will be able to deal with. As the right reverend Prelate the Bishop of Chelmsford reminded us, when the legal but harmful elements of the Bill were taken out between draft stage and publication, we lost the assessment of future risk as being something that was in place before, which I think was an unintended consequence of taking those things out. It would be great to see those back, as Amendment 139 and Amendment 195 from the right reverend Prelate the Bishop of Oxford suggest. The reporting that the noble Baroness, Lady Finlay, is proposing in her amendments is important in giving us as Parliament a sense of how this is going. My noble friend Lord Stevenson tabled Amendment 286 to pay particular regard to the metaverse, and I support that.

Ultimately, the key test for the Minister is, as others have said, that tech is changing really fast. It is changing the online environment and our relationship with it as humans very quickly indeed; the business models will change really quickly as a result and they, by and large, are likely to drive quite a lot of the platform behaviour. But can the regulator, as things are currently set out in this legislation, react and change quickly enough in response to that highly dynamic environment? Can we anticipate that what is inconceivable at the moment is going to be regulatable by this Bill? If not, we need to make sure that Parliament has opportunities to revisit this. As I have said before, I strongly support post-legislative scrutiny; I personally think a permanent Joint Committee of both Houses around digital regulation, so that we have some sustained body of expertise of parliamentarians in both Houses to keep up with this, would be extremely useful to Parliament.

As a whole, I think these amendments are really helpful to the Minister and to Parliament in pointing us towards where we can strengthen the future-proofing of the Bill. I look forward to the Minister’s response.

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

My Lords, this has been a grim but important debate to open the Committee’s proceedings today. As my noble friend Lady Harding of Winscombe and others have set out, some of the issues and materials about which we are talking are abhorrent indeed. I join other noble Lords in thanking my noble friend Lord Harlech for his vigilance and consideration for those who are watching our proceedings today, to allow us to talk about them in the way that we must in order to tackle them, but to ensure that we do so sensitively. I thank noble Lords for the way they have done that.

I pay tribute also to those who work in this dark corner of the internet to tackle these harms. I am pleased to reassure noble Lords that the Bill has been designed in a way that responds to emerging and new technologies that may pose a risk of harm. In our previous debates, we have touched on explicitly naming certain technologies and user groups or making aspects of the legislation more specific. However, one key reason why the Government have been resistant to such specificity is to ensure that the legislation remains flexible and future-proofed.

The Bill has been designed to be technology-neutral in order to capture new services that may arise in this rapidly evolving sector. It confers duties on any service that enables users to interact with each other, as well as search services, meaning that any new internet service that enables user interaction will be caught by it.

Amendment 125, tabled by the noble Baroness, Lady Kidron—whose watchful eye I certainly feel on me even as she takes a rare but well-earned break today—seeks to ensure that machine-generated content, virtual reality content and augmented reality content are regulated content under the Bill. I am happy to confirm to her and to my noble friend Lady Harding who moved the amendment on her behalf that the Bill is designed to regulate providers of user-to-user services, regardless of the specific technologies they use to deliver their service, including virtual reality and augmented reality content. This is because any service that allows its users to encounter content generated, uploaded or shared by other users is in scope unless exempt. “Content” is defined very broadly in Clause 207(1) as

“anything communicated by means of an internet service”.

This includes virtual or augmented reality. The Bill’s duties therefore cover all user-generated content present on the service, regardless of the form this content takes, including virtual reality and augmented reality content. To state it plainly: platforms that allow such content—for example, the metaverse—are firmly in scope of the Bill.

The Bill also ensures that machine-generated content on user-to-user services created by automated tools or machine bots will be regulated by the Bill where appropriate. Specifically, Clause 49(4)(b) means that machine-generated content is regulated unless the bot or automated tool producing the content is controlled by the provider of the service. This approach ensures that the Bill covers scenarios such as malicious bots on a social media platform abusing users, or when users share content produced by new tools, such as ChatGPT, while excluding functions such as customer service chatbots which are low risk. Content generated by an artificial intelligence bot and then placed by a user on a regulated service will be regulated by the Bill. Content generated by an AI bot which interacts with user-generated content, such as bots on Twitter, will be regulated by the Bill. A bot that is controlled by the service provider, such as a customer service chatbot, is out of scope; as I have said, that is low risk and regulation would therefore be disproportionate. Search services using AI-powered features will be in scope of the search duties.

The Government recognise the need to act both to unlock the opportunities and to address the potential risks of this technology. Our AI regulation White Paper sets out the principles for the responsible development of AI in the UK. These principles, such as safety and accountability, are at the heart of our approach to ensuring the responsible development and use of artificial intelligence. We are creating a horizon-scanning function and a central risk function which will enable the Government to monitor future risks.

The Bill does not distinguish between the format of content present on a service. Any service that allows its users to encounter content generated, uploaded or shared by other users is in scope unless exempt, regardless of the format of that content. This includes virtual and augmented reality material. Platforms that allow such content, such as the metaverse, are firmly in scope of the Bill and must take the required steps to protect their users from harm. I hope that gives the clarity that my noble friend and others were seeking and reassurance that the intent of Amendment 125 is satisfied.

The Bill will require companies to take proactive steps to tackle all forms of online child sexual abuse, including grooming, live streaming, child sexual abuse material and prohibited images of children. If AI-generated content amounts to a child’s sexual exploitation or abuse offence in the Bill, it will be subject to the illegal content duties. Regulated providers will need to take steps to remove this content. We will shortly bring forward, and have the opportunity to debate in Committee, a government amendment to address concerns relating to the sending of intimate images. This will cover the non-consensual sharing of manufactured images—more commonly known as deepfakes. The possession and distribution of altered images that appear to be indecent photographs of children is ready covered by the indecent images of children offences, which are very serious offences with robust punishment in law.

13:15

The noble Baroness, Lady Finlay of Llandaff, asked about an issue touched on in Amendment 85C. Under their illegal content safety duties, companies must put in place safety measures that mitigate and manage the risks identified in their illegal content risk assessment. As part of this, in-scope services such as Meta will be required to assess the level of risk of their service being used for the commission or facilitation of a priority offence. They will then be required to mitigate any such risks. This will ensure that providers implement safety by design measures to mitigate a broad spectrum of factors that enable illegal activity on their platforms. This includes when these platforms facilitate new kinds of user-to-user interactions that may result in offences manifesting themselves in new ways online.

Schedules 5, 6 and 7, which list the priority offences, are not static lists and can be updated. To maintain flexibility and to keep those lists responsive to emerging harms and legislative changes, the Secretary of State has the ability to designate additional offences as priority offences via statutory instrument, subject to parliamentary scrutiny. It should be noted that Schedule 7 already contains several sexual offences, including extreme pornography, so-called revenge pornography and sexual exploitation, while Schedule 6 is focused solely on child sexual abuse and exploitation offences. Fraud and financial offences are also listed in Schedule 7. In this way, these offences are already captured, and mean that all in-scope services must take proactive measures to tackle these types of content. These schedules have been designed to focus on the most serious and prevalent offences, where companies can take effective and meaningful action. They are, therefore, primarily focused on offences that can be committed online, so that platforms are able to take effective steps proactively to identify and tackle such offences. If we were to add offences to these lists that could not be effectively tackled, it would risk spreading companies’ resources too thinly and diluting their efforts to tackle the offences we have listed in the Bill.

The Bill establishes a differentiated approach to ensure that it is proportionate to the risk of harm that different services pose. Category 1 services are subject to additional duties, such as transparency, accountability and free speech duties, as well as duties such as protections for journalistic and democratic content. These duties reflect the influence of the major platforms over our online democratic discourse. The designation of category 1 services is based on how easily, quickly and widely user-generated content is disseminated. This reflects how those category 1 services have the greatest influence over public discourse because of their high reach. Requiring all companies to comply with the full range of category 1 duties would impose a disproportionate regulatory burden on smaller companies, which do not exert the same amount of influence over public discourse. This would divert their resources away from the vital task of tackling illegal content and protecting children.

The noble Baroness, Lady Finlay, also asked about virtual training grounds. Instruction or training for terrorism is illegal under existing terrorism legislation, and terrorism is listed as a priority offence in this Bill. Schedule 5 to the Bill lists the terrorism offences that constitute priority offences. These are drawn from existing terrorism legislation, including the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001 and the Terrorism Act 2006. Section 6 of the 2006 Act covers instruction or training for terrorism and Section 2 of that Act covers dissemination of terrorist publications. Companies in scope of the Online Safety Bill will be required to take proactive steps to prevent users encountering content that amounts to an offence under terrorism legislation.

Amendments 195, 239, 263, 241, 301 and 286 seek to ensure that the Bill is future-proofed to keep pace with emerging technologies, as well as ensuring that Ofcom is able to monitor and identify new threats. The broad scope of the Bill means that it will capture all services that enable user interaction as well as search services, enabling its framework to continue to apply to new services that have not yet been invented. In addition, the Government fully agree that Ofcom must assess future risks and monitor the emergence of new technologies. That is why the Bill already gives Ofcom broad horizon-scanning and robust information-gathering powers, and why it requires Ofcom to carry out extensive risk assessments. These will ensure that it can effectively supervise and regulate new and emerging user-to-user services.

Ofcom is already conducting extensive horizon scanning and I am pleased to confirm that it is planning a range of research into emerging technologies in relation to online harms. The Bill also requires Ofcom to review and update its sectoral risk assessments, risk profiles and codes of practice to ensure that those reflect the risks and harms of new and emerging technology. The amendments before us would therefore duplicate existing duties and powers for Ofcom. In addition, as noble Lords will be aware, the Bill already has built-in review mechanisms to ensure that it works effectively.

My right honourable friends the Prime Minister and the Secretary of State for Science, Innovation and Technology are clear that artificial intelligence is the defining technology of our time, with the potential to bring positive changes, but also that the success of this technology is founded on having the right guardrails in place, so that the public can have the confidence that artificial intelligence is being used in a safe and responsible way. The UK’s approach to AI regulation will need to keep pace with the fast-moving advances in this technology. That is why His Majesty’s Government have deliberately adopted an agile response to unlock opportunities, while mitigating the risks of the technology, as outlined in our AI White Paper. We are engaging extensively with international partners on these issues, which have such profound consequences for all humankind.

Clause 159 requires the Secretary of State to undertake a review into the operation of the regulatory framework between two and five years after the provisions come into effect. This review will consider any new emerging trends or technologies, such as AI, which could have the potential to compromise the efficacy of the Bill in achieving its objectives. I am happy to assure the noble Viscount, Lord Colville of Culross, and the right reverend Prelate the Bishop of Chelmsford that the review will cover all content and activity being regulated by the Bill, including legal content that is harmful to children and content covered by user-empowerment tools. The Secretary of State must consult Ofcom when she carries out this review.

[Lord Allan of Hallam (LD)]

Will the review also cover an understanding of what has been happening in criminal cases where, in some of the examples that have been described, people have tried to take online activity to court? We will at that point understand whether the judges believe that existing offences cover some of these novel forms of activity. I hope the review will also extend not just to what Ofcom does as a regulator but to understand what the courts are doing in terms of the definitions of criminal activity and whether they are being effective in the new online spaces.

[Lord Parkinson of Whitley Bay (Con)]

I believe it will. Certainly, both government and Parliament will take into account judgments in the court on this Bill and in related areas of law, and will, I am sure, want to respond.

[Baroness Berridge (Con)]

It is not just the judgments of the courts; it is about how the criminal law as a very basic point has been framed. I invite my noble friend the Minister to please meet with the Dawes Centre, because it is about future crime. We could end up with a situation in which more and more violence, particularly against women and girls, is being committed in this space, and although it may be that the Bill has made it regulated, it may not fall within the province of the criminal law. That would be a very difficult situation for our law to end up in. Can my noble friend the Minister please meet with the Dawes Centre to talk about that point?

[Lord Parkinson of Whitley Bay (Con)]

I am happy to reassure my noble friend that the director of the Dawes Centre for Future Crime sits on the Home Office’s Science Advisory Council, whose work is very usefully fed into the work being done at the Home Office. Colleagues at the Ministry of Justice keep criminal law under constant review, in light of research by such bodies and what we see in the courts and society. I hope that reassures my noble friend that the points she raised, which are covered by organisations such as the Dawes Centre, are very much in the mind of government.

The noble Lord, Lord Allan of Hallam, explained very effectively the nuances of how behaviour translates to the virtual world. He is right that we will need to keep both offences and the framework under review. My noble friend Lady Berridge asked a good and clear question, to which I am afraid I do not have a similarly concise answer. I can reassure her that generated child sexual abuse and exploitation material is certainly illegal, but she asked about sexual harassment via a haptic suit; that would depend on the specific circumstances. I hope she will allow me to respond in writing, at greater length and more helpfully, to the very good question she asked.

Under Clause 56, Ofcom will also be required to undertake periodic reviews into the incidence and severity of content that is harmful to children on the in-scope services, and to recommend to the Secretary of State any appropriate changes to regulations based on its findings. Clause 141 also requires Ofcom to carry out research into users’ experiences of regulated services, which will likely include experiences of services such as the metaverse and other online spaces that allow user interaction. Under Clause 147, Ofcom may also publish reports on other online safety matters.

The questions posed by the noble Lord, Lord Russell of Liverpool, about international engagement are best addressed in a group covering regulatory co-operation, which I hope we will reach later today. I can tell him that we have introduced a new information-sharing gateway for the purpose of sharing information with overseas regulators, to ensure that Ofcom can collaborate effectively with its international counterparts. That builds on existing arrangements for sharing information that underpin Ofcom’s existing regulatory regimes.

The amendments tabled by the noble Lord, Lord Knight of Weymouth, relate to providers’ judgments about when content produced by bots is illegal content, or a fraudulent advertisement, under the Bill. Clause 170 sets out that providers will need to take into account all reasonably available relevant information about content when making a judgment about its illegality. As we discussed in the group about illegal content, providers will need to treat content as illegal when this information gives reasonable grounds for inferring that an offence was committed. Content produced by bots is in scope of providers’ duties under the Bill. This includes the illegal content duties, and the same principles for assessing illegal content will apply to bot-produced content. Rather than drawing inferences about the conduct and intent of the user who generated the content, the Bill specifies that providers should consider the conduct and the intent of the person who can be assumed to have controlled the bot at the point it created the content in question.

The noble Lord’s amendment would set out that providers could make judgments about whether bot-produced content is illegal, either by reference to the conduct or mental state of the person who owns the bot or, alternatively, by reference to the person who controls it. As he set out in his explanatory statement and outlined in his speech, I understand he has brought this forward because he is concerned that providers will sometimes not be able to identify the controller of a bot, and that this will impede providers’ duties to take action against illegal content produced by them. Even when the provider does not know the identity of the person controlling the bot, however, in many cases there will still be evidence from which providers can draw inferences about the conduct and intent of that person, so we are satisfied that the current drafting of the Bill ensures that providers will be able to make a judgment on illegality.

[Lord Knight of Weymouth (Lab)]

My concern is also whether or not the bot is out of control. Can the Minister clarify that issue?

[Lord Parkinson of Whitley Bay (Con)]

It depends on what the noble Lord means by “out of control” and what content the bot is producing. If he does not mind, this may be an issue which we should go through in technical detail and have a more free-flowing conservation with examples that we can work through.

13:30

Providers will consider contextual evidence such as the circumstances in which the content was created or information about how the bot normally behaves on the site. In many cases, the person who “owns” the bot may be the same person who controls it. In such instances, providers will be required to consider the conduct and mental state of the owner when considering whether the relevant bot has produced illegal content. Where the ownership of the bot is relevant, it will already be captured by this clause, but I am very happy to kick the tyres of that with the noble Lord and any others who wish to join us.

[Baroness Finlay of Llandaff (CB)]

This is a very interesting discussion; the noble Lord, Lord Knight, has hit on something really important. When somebody does an activity that we believe is criminal, we can interrogate them and ask how they came to do it and got to the conclusion that they did. The difficulty is that those of us who are not super-techy do not understand how you can interrogate a bot or an AI which appears to be out of control on how it got to the conclusion that it did. It may be drawing from lots of different places and there may be ownership of lots of different sources of information. I wonder whether that is why we are finding how this will be monitored in future so concerning. I am reassured that the noble Lord, Lord Knight of Weymouth, is nodding; does the Minister concur that this may be a looming problem for us?

[Lord Parkinson of Whitley Bay (Con)]

I certainly concur that we should discuss the issue in greater detail. I am very happy to do so with the noble Lord, the noble Baroness and others who want to do so, along with officials. If we can bring some worked examples of what “in control” and “out of control” bots may be, that would be helpful.

I hope the points I have set out in relation to the other issues raised in this group and the amendments before us are satisfactory to noble Lords and that they will at this point be content not to press their amendments.

[Baroness Harding of Winscombe (Con)]

My Lords, I thank all noble Lords who have contributed to a thought-provoking and, I suspect, longer debate than we had anticipated. At Second Reading, I think we were all taken aback when this issue was opened up by my noble friend Lord Sarfraz; once again, we are realising that this requires really careful thought. I thank my noble friend the Minister for his also quite long and thoughtful response to this debate.

I feel that I owe the Committee a small apology. I am very conscious that I talked in quite graphic detail at the beginning when there were still children in the Gallery. I hope that I did not cause any harm, but it shows how serious this is that we have all had to think so carefully about what we have been saying—only in words, without any images. We should not underestimate how much this has demonstrated the importance of our debates.

On the comments of the noble Baroness, Lady Fox, I am a huge enthusiast, like the noble Lord, Lord Knight, for the wonders of the tech world and what it can bring. We are managing the balance in this Bill to make sure that this country can continue to benefit from and lead the opportunities of tech while recognising its real and genuine harms. I suggest that today’s debate has demonstrated the potential harm that the digital world can bring.

I listened carefully—as I am certain the noble Baroness, Lady Kidron, has been doing in the digital world—to my noble friend’s words. I am encouraged by what he has put on the record on Amendment 125, but there are some specific issues that it would be helpful for us to talk about, as he alluded to, after this debate and before Report. Let me highlight a couple of those.

First, I do not really understand the technical difference between a customer service bot and other bots. I am slightly worried that we are defining in the specific one type of bot that would not be captured by this Bill. I suspect that there might be others in future. We must think carefully through whether we are getting too much into the specifics of the technology and not general enough in making sure we capture where it could go. That is one example.

Secondly, as my noble friend Lady Berridge would say, I am not sure that we have got to the bottom of whether this Bill, coupled with the existing body of criminal law, will really enable law enforcement officers to progress the cases as they see fit and protect vulnerable women—and men—in the digital world. I very much hope we can extend the conversation there. We perhaps risk getting too close to the technical specifics if we are thinking about whether a haptic suit is in or out of scope of the Bill; I am certain that there will be other technologies that we have not even thought about yet that we will want to make sure that the Bill can capture.

I very much welcome the spirit in which this debate has been held. When I said that I would do this for the noble Baroness, Lady Kidron, I did not realise quite what a huge debate we were opening up, but I thank everyone who has contributed and beg leave to withdraw the amendment.

Amendment 125 withdrawn.

Amendment 125A not moved.

Clause 49 agreed.

Clause 50: “Recognised news publisher”

Amendment 126 not moved.

Amendment 126A

Moved by

[Lord Parkinson of Whitley Bay]

126A: Clause 50, page 48, line 31, at end insert “, and
(iii) is not a sanctioned entity (see subsection (3A)).”Member’s explanatory statement
The effect of this amendment, combined with the next amendment in the Minister’s name, is that any entity which is designated for the purposes of sanctions regulations is not a “recognised news publisher” under this Bill, with the result that the Bill’s protections which relate to “news publisher content” don’t apply.

Amendment 126A agreed.

Amendment 127 not moved.

Amendment 127A

Moved by

[Lord Parkinson of Whitley Bay]

127A: Clause 50, page 49, line 9, at end insert—
“(3A) A “sanctioned entity” is an entity which—(a) is designated by name under a power contained in regulations under section 1 of the Sanctions and Anti-Money Laundering Act 2018 that authorises the Secretary of State or the Treasury to designate persons for the purposes of the regulations or of any provisions of the regulations, or (b) is a designated person under any provision included in such regulations by virtue of section 13 of that Act (persons named by or under UN Security Council Resolutions).”Member’s explanatory statement
The effect of this amendment, combined with the preceding amendment in the Minister’s name, is that any entity which is designated for the purposes of sanctions regulations is not a “recognised news publisher” under this Bill, with the result that the Bill’s protections which relate to “news publisher content” don’t apply.

Amendment 127A agreed.

Clause 50, as amended, agreed.

Clause 51 agreed.

Clause 52: Restricting users’ access to content

Amendments 127B and 127C

Moved by

[Lord Parkinson of Whitley Bay]

127B: Clause 52, page 50, line 23, after second “the” insert “voluntary”
Member’s explanatory statement
This amendment and the next amendment in the Minister’s name ensure that restrictions on a user’s access to content resulting from the user voluntarily activating any feature of a service do not count as restrictions on users’ access for the purposes of Part 3 of the Bill.

127C: Clause 52, page 50, line 25, leave out from “service” to “, or” in line 26 and insert “(for example, features, functionalities or settings included in compliance with the duty set out in section 12(2) or (6) (user empowerment))”
Member’s explanatory statement
This amendment and the previous amendment in the Minister’s name ensure that restrictions on a user’s access to content resulting from the user voluntarily activating any feature of a service do not count as restrictions on users’ access for the purposes of Part 3 of the Bill.

Amendments 127B and 127C agreed.

Clause 52, as amended, agreed.

Clause 53: “Illegal content” etc

Amendments 128 to 130 not moved.

Clause 53 agreed.

Schedule 5 agreed.

Schedule 6: Child sexual exploitation and abuse offences

Amendments 131 to 133 not moved.

Schedule 6 agreed.

House resumed. Committee to begin again not before 2.19 pm.

Branded Health Service Medicines (Costs) (Amendment) Regulations 2023

Thursday 25th May 2023 Lords Chamber

Motion to Regret

13:39

Moved by

[Lord Hunt of Kings Heath]

That this House regrets that the Branded Health Service Medicines (Costs) (Amendment) Regulations 2023 propose a 27.5 per cent claw back rate which significantly exceeds that required by comparable countries, and which risks seriously damaging future investment in the research and development (R&D) of new drugs in the United Kingdom for the NHS, investment in the life sciences more generally, and the manufacture of branded medicines and their availability to the NHS; further regrets the short and insufficient consultation period for these measures of just 39 days over the Christmas period; and notes with concern that the UK’s share of global pharmaceutical R&D has fallen by over one-third between 2012 and 2020, and that the UK’s medicine production volumes, clinical trial delivery, and global share of new medicine launches have also all declined in recent years. (SI 2023/239)

Relevant document: 34th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very glad to introduce this debate, and thankful to noble Lords who have stayed to take part in it. Underpinning this debate is a major concern about the current state of the UK economy, beset as it is with low growth, low productivity, workforce shortages, regional inequality and a dilapidated infrastructure; yet we have no industrial strategy. The Government have raised corporation tax; it is little wonder that Sir James Dyson recently accused the Government of having a “stupid” and “short-sighted” approach to the economy and business in the UK. Indeed, as Theresa May’s former chief of staff, Nick Timothy, put it on 8 May, there is an alarming decline in manufacturing as a percentage of GDP.

We ought, at least, to welcome the Prime Minister’s launch of the Government’s plan to create the UK’s place and cement it as a science and technology superpower by 2030. My concern is that the Minister and his colleagues in the Department of Health and Social Care are doing everything they can to inhibit that ambition. The life sciences industry is one of the most successful and important pillars of the UK economy, contributing more than £94.2 billion a year and 200,000 jobs in this country. Two-thirds of this is generated by the biopharmaceutical sector. The industry’s pipeline of new medicines is equally impressive.

We are at great risk of seeing this economic success falter under the watch of the Government, as companies are reducing their level of investment because of the imposition of a massive clawback that equates to one-quarter of sales revenue. We are already seeing very worrying trends in investment levels. From 2012 to 2020, the UK’s share of global pharmaceutical R&D spend decreased by more than a third. Since 2018, the UK has been falling down the global rankings across all phases of industry clinical trials. UK manufacturing production volumes have fallen by 29% since 2009. We all know that the NHS is far too slow to adopt new innovation and new medicines.

The UK is falling behind comparable countries as an early-launch market. Companies are making decisions to delay, or even not to launch, in the UK. These can be clinically important medicines that address many of the NHS’s priorities. Compared to leading countries in Europe—Italy, Spain, Germany and France—we have experienced the largest decline in our global share of new medicine launches between 2016 and 2021. This is the background to the statutory instrument that we are debating today.

I believe and hope this debate can influence the negotiations that have just started with the industry over the next phase of the voluntary scheme, otherwise known as VPAS—various noble Lords used to know it as PPRS. Under these regulations, companies in the statutory scheme will be required to pay to the Secretary of State 27.5% of their 2023 net sales income received for the supply of those medicines to the NHS.

The Government’s argument is that continued high sales growth in 2022 has led to an increase in the payment percentages in the VPAS scheme from 15% in 2022 to 26.5% in 2023, which is higher than was projected at the time of the 2022 statutory scheme consultation. As a result, the Government have ratcheted up the statutory scheme required payment rate. My argument is that both the voluntary and statutory schemes—companies have to be in one or the other, and can switch between them—are becoming a major impediment to future investment in the UK. The proposed rate of 27.5% will place the UK as a global outlier. In countries that operate similar clawback arrangements, current rates include 12% in Germany, 7.5% in Spain and 9% in Ireland, and all those countries spend more on medicines per head than we do. How on earth can the Government’s stated aim to grow the life sciences industry, as set out in the Life Sciences Vision and just recently articulated by the Chancellor, be delivered if industries expect to pay twice the level here that they do in Germany?

13:45

I have no doubt whatever that there is a direct link between payment rates and scale of investment. Placement of clinical research clearly takes into consideration subsequent expected patient uptake and medicine sales in that country as well. This connection is further evidenced by analysis commissioned by ABPI, which found that continued high payment rates in both schemes would cost the UK £50 billion in GDP and £17.9 billion in tax revenue as a result of lost R&D investment of £5.7 billion by 2028. Without action or signals from the Government that they agree that this situation is not sustainable, there is a risk that short-term decisions or disinvestment will have long-term consequences as high payment rates are locked into business planning cycles.

Worrying signs are emerging. AstraZeneca recently announced a major expansion of its research footprint in Canada, creating over 500 new, highly skilled jobs and a new research and development hub, because the Government there at both provincial and federal level have taken huge steps to create a more supportive environment for the biopharmaceutical industry. AbbVie left the voluntary scheme on principle and has disinvested from certain R&D activities to manage those high repayment rates. That includes halting of UK data and real-world evidence studies, some of which are continuing in other countries, and, particularly disappointing, the discontinuation of an initiative to support promising UK biotech companies by providing free lab space to facilitate technological advancement and company scale-up. Other companies are clearly taking similar actions.

The Government’s response seems incredibly complacent, and the impact assessment does not even recognise a link between payment rates and investment for the UK, nor does it reference the Life Sciences Vision. The IA states that the risk that the payment rates will delay or pause the launch of new medicines in the UK is “remote”. How on earth can the Minister justify that being stated when the decline has been so visible in industry’s investment in pharma R&D? The remarkable paragraph 101 says that

“supply side factors, such as availability of expert scientific labour and favourable tax conditions, are of greatest significance in the decision to locate R&D activity, and that siting of R&D facilities should not be affected by”

the commercial environment. That is an extraordinary statement. If you were reading this in the boardrooms of New York or New Jersey, or indeed Basel, what would you conclude? By implication, the Government are saying, “We do not have the right scientific resource available in this country, nor do we have the right tax conditions”. This is an extraordinary statement to make, and I have to ask whether a Minister ever read this IA before they signed it off. I rather doubt it.

The Government need to reset their view on this matter before they enter into serious negotiations on the new VPAS scheme. I have no doubt whatever that this is recoverable, but it is only just recoverable. I have no doubt that a successful life sciences sector has the potential to drive the health and wealth of the UK, and the Chancellor has made it clear that this is a priority for him. In his Budget he said that he wants the UK

“to be the best place in Europe for companies to locate, invest and grow”—[Official Report, Commons, 15/3/23; col. 842.]

our life sciences sector.

Agreeing a new voluntary scheme is critical, and the Government should work with industry to secure an agreement with growth at its heart. We need a sustainable approach to medicines provision for the whole branded market which rapidly brings industry payments into line with comparator countries to unlock investment and growth, maximising the potential of the UK life sciences industry as an engine for growth, including through harnessing the full value of the UK as a destination for R&D and clinical research, ensuring rapid patient access and adoption of new medicines, in partnership with a dynamic, innovative MHRA and NICE. There is not time to go into the shortages at the MHRA at the moment, which is causing great concern to industry. It can also help to improve outcomes, and I shall come back to the need to lower the discount rate to be applied to future health gains deriving from new treatments, because the current rate is another inhibitor to investment by industry.

I appeal to the Minister. We have had a number of debates in the past and, frankly, the line in the IA is the line the department has used for 20 years. The noble Lord, Lord Warner and I, are aware of the tensions within the Department of Health in managing the NHS budget on the one hand and, for much of that time, sponsoring the industry. I suspect that the noble Lord, Lord Lansley, faced similar issues. We are at a critical stage. The Minister will know that the UK economy is fragile. We desperately need to grow the life sciences sector, but the action the Government seem to be taking with the industry is guaranteed to ensure that this will not happen. I very much hope that the Government will listen and that this will inform their negotiations with industry on the new VPAS. I beg to move.

[Lord Lansley (Con)]

My Lords, I intervene in this short debate just to make a number of points that I feel strongly about and have done for quite a long time, because now is an important moment, when the Government are entering the process of negotiating the voluntary price access scheme starting at the beginning of next year.

I welcome the fact that the noble Lord, Lord Hunt of Kings Heath, has sought and secured this debate: it is really important. I do not disagree with any of the points he made, and he and I know that in past debates, together with the noble Lord, Lord Warner, we have often made these points—not least when we were debating the legislation which has given the Government the powers to secure whatever pricing outcome they are looking for, frankly. We do not actually have any pharmaceutical pricing freedom in this country; we effectively have government control of it.

The purpose of the regulations is not really in debate: to ensure that the statutory scheme and voluntary scheme align. We have been in a position where they did not align when we had the Gilead example, and that is not a place we want to go back to; we want to ensure that the schemes align, if we need two such schemes at all. That is my starting point. I have no registrable interests, although as a former Secretary of State I was very much involved in these issues, and as a Member of Parliament for South Cambridgeshire I probably had, in my time in the other place, a greater interest directly in the pharmaceutical industry, the life sciences sector and the R&D activity in this country than did Members for any other constituency.

I am sure the noble Lord, Lord Hunt of Kings Heath, is right that there is a relationship at this point between the scheme’s rebate level and the willingness or otherwise of internationally mobile investment and international pharmaceutical boards to consider the United Kingdom as a location for investment. The impact assessment does not sufficiently recognise that truth. It more or less works on the basis that this was the result of the old scheme, it is all for a few months and will all be replaced next year. I fear that is not how the world works. There will be discussions at international board level where people say, “We used to think the United Kingdom was the best place in Europe”—arguably, the best place in the world—“to conduct pharmaceutical research, but at the moment we are not sure that is the case because, if we were to launch in the United Kingdom, the level of pricing rebate being imposed on us makes the risks associated too great”.

From my point of view, clearly this can be remedied with a VPAS next year which re-establishes, from the industry’s point of view, a more predictable level of rebate. I have to say that the VPAS, the statutory scheme, is based on a serious fallacy that there is such a thing within the healthcare industry of a fixed drugs budget. I know of no healthcare system that thinks that is a logical way of approaching it. The drugs budget must be part of a health budget. We have budgets in order to deliver health outcomes. We do not have a drugs budget in order to secure a health outcome, we have a total health budget. The idea that the Government should intervene in order specifically to confine and restrict the amount that we spend on medicines in the healthcare system is wrong.

We should try to get away from that. I am not saying that we should not try to ensure that we get the best possible value for money for the medicines that we buy. The NHS in this country is effectively a monopsony, so we have every possibility of having extremely competitive medicine prices, but frankly we are being, as my mother would have said, penny wise and pound foolish. If we save a bit on NHS purchasing and parade to the rest of the world that we have the lowest medicine prices, the inevitable result—which we have seen—is a doubling of the number of pharmaceutical companies withdrawing their products from NICE evaluations. That is not a place where we want to be. We want those evaluations to take place.

I am going to finish with this thought. Even at this stage, I hope they are looking at this not only in the pharmaceutical companies, not only in ABPI but inside the department and inside the Treasury. I think all of our experience is that at the end of the day these things were determined more in the Treasury and No. 10 than they were in the Department of Health. I did not actually see a PPRS negotiation completed in my time, but I know perfectly well that is what happens. When they read this, I hope they will say: “Why don’t we move away from this kind of system?” The idea of a rate of return regulation as a mechanism for industry control is so out of date, it is practically neolithic. We have the benefit in this country of the National Institute for Health and Care Excellence which has acknowledged expertise in health technology assessment. It should make assessments.

We have in NHS England an increased capacity and propensity to negotiate medicines prices regardless of what NICE says about evaluations anyway. Let us put those two together—we have argued this many times—and enter into negotiations on medicines pricing with the industry. Wherever we can, we should operate on the basis of a market. We have a market in generics and biosimilars. We are close to market on branded generics and biosimilars, but the branded medicines are inside this scheme. They should not be inside it; they should be the subject of negotiated pricing in what is effectively a market context. They should have to demonstrate where there is a benefit to a branded generic or a branded biosimilar relative to one which is not branded but is simply generic.

But for those where there is exclusivity, clearly there is going to be a negotiated price, and it is in our interests for that negotiation to take account not only of the incremental cost effectiveness, not only the quali-benefit, as it were, but also the societal benefits and the innovation benefit of new medicines. Let us say for the sake of argument that in the course of the next five years we were suddenly to find that we had a blockbuster new medicine that gave us immense advantages in terms of delaying the onset of dementia. It is not inconceivable that that could happen. As things stand, the scheme is designed for the pharmaceutical industry to derive no benefit from the fact that it has brought forward a new medicine of that scale and advantage. That cannot be right. If, in the context of healthcare, medicines occupy a stronger position, they should secure greater funding. If, relative to them, medicines do not do the job, they should have lesser funding, but this should be a healthcare and a health budget calculation, not a rate-of-return prior regulation. I hope that, even at this stage, the Government and the industry will think of whether there might be a better way of conducting negotiations on medicines pricing in this country.

14:00

[Lord Warner (CB)]

My Lords, I support the regret Motion moved so ably by the noble Lord, Lord Hunt of Kings Heath. I agree with quite a lot of what the noble Lord, Lord Lansley, has said, but I am not going to be as wide-ranging as him. The Minister may be relieved to know that.

I speak from the perspective of having been a Pharmaceuticals Minister who negotiated a 7% reduction in the price of branded medicines, under the old PPRS, without damaging the UK’s life sciences industry and with the agreement of the Treasury. So it is possible to do these things and make such schemes work if, across government—we will come back to that—there is a willingness to engage properly with the industry. What we see here is that failure across government to deal with the industry.

Unfortunately, the regulations before us will, as has been said, significantly damage the UK life sciences sector. That was confirmed for me by the briefing received from the ABPI and some of the pharmaceutical companies that have also set out their views in relation to these regulations.

The regulations increase the repayments by pharmaceutical companies in the statutory price scheme to bring them into line with the already high levels in the voluntary price scheme, so we have a scheme which is catching up to an already unsatisfactory scheme. That is a wonderful achievement for government departments to have delivered. Government departments seem to have simply ignored the warnings they have been given about what will happen if they press on with the regulations as they stand. Instead, they have produced what I would regard as an unconvincing and wordy impact assessment, which has already been commented on. It totally downplays the warnings from the industry. The industry made its position very clear in the ABPI briefing for this debate. It points out that the proposed rebate of 27.5% of companies’ revenues

“is a rapid escalation from historical and international norms. Prior to this the average payment rate across the last four years was 10.6% and in 2022 the rate was 14.3%”.

That is almost a doubling of what the rate was a year or so ago.

When one looks at comparator countries, as has been mentioned, the UK rate is an extreme outlier within western Europe. Some countries do not even have comparable schemes, but in those that do, the rates are 12% in Germany and 7.5% in Spain and Ireland. The only comparable clawbacks to the UK’s are in Romania and Greece, two countries that, if I may say so, are hardly in the Premier League in terms of the life sciences. The ABPI brief goes on to state that

“the UK is already seeing worrying signs of decline in the UK life sciences industry including in R&D investment, access to clinical trials and medicines launches with companies making long-term decisions on the future of their UK footprint.”

The new proposed rate will accelerate this investment and jeopardise the availability of new medicines, which will lead to poorer NHS performance and patient outcomes. The ABPI contrasts the UK’s approach with incentives to new life sciences investments in France and Ireland, where Pfizer has recently announced big investments in both countries. AstraZeneca has followed suit in Ireland. The ABPI briefing is also supported by the briefing from AbbVie, a top-five, US-headquartered global biopharmaceutical company. It points out that the NHS already lags behind other countries in the take-up of new medicines. Branded medicines expenditure is reducing in the NHS, while the NHS budget is increasing. That is no mean achievement. I never got to that stage when I was the Pharmaceuticals Minister.

UK patient access to industry clinical trials is declining rapidly, and the average annual loss in the UK’s share of R&D spending is declining by about 3% a year. The briefing from Roche, another major company, is in a similar vein to that from AbbVie. This is not just the industry complaining about these regulations; these concerns are shared by patient groups. Gene People, which supports people with genetic conditions, has set out in its evidence the impact of these regulations for patients and on their access to the drugs that they will require over time.

I am genuinely puzzled by why the Department of Health and Social Care has simply ignored the evidence provided by the industry and patient groups on the damage that these regulations will do to UK life sciences and UK plc. The ABPI commissioned research which found that continued high payment rates in both the statutory and voluntary schemes would cost the UK £50 billion in GDP and £17.9 billion in tax revenue because of lost R&D investment of £5.7 billion by 2028. These are considerable losses to the UK economy. There is not a mention of them in the impact assessment. The ABPI company survey also suggests that repayment rates of around 24% across both the voluntary and statutory schemes

“would result in job losses in over 9 out of 10 companies”.

The savings to the NHS budget from these rebate schemes is modest compared to the economic damage that they do.

Despite all this evidence, Ministers from the Department of Health and Social Care are ploughing on with these regulations, seemingly unaware that the industry’s timescales for making R&D investment decisions are much closer than they realise. In the next year or so, these decisions will be taken in relation to 2030 onwards. Somewhat bizarrely, 2030 is the date the Prime Minister is talking about for cementing the UK’s place as a science and technology superpower.

It crossed my mind as I prepared for this debate whether the Prime Minister and No. 10 are aware of the contradictions between the Department of Health and Social Care and the Prime Minister’s aspirations for the UK economy. It is also strange that on the very day that we are debating this regret Motion on these regulations, the Chancellor is sitting with the industry at the Life Sciences Council, discussing the life sciences sector in this country. It seems an interesting coincidence.

I should like clarification from the Minister on one point and to ask him a question. The point of clarification is whether, as the usual convention requires, he is speaking fully on behalf of the Government in responding to the Motion tabled by the noble Lord, Lord Hunt. My question relates to the new discussions on the voluntary scheme, which are taking place or have begun. Can the Minister confirm that these discussions are indeed taking place? If so, what is the point of pursuing these regulations if, in these new discussions, there is the possibility of a more positive approach to rebates under both schemes, given the more sensible proposals put on the table by the ABPI—the Minister may be able to confirm this—which suggest that we should be talking about single-figure rebates if we want this country’s life sciences industry to be successful?

[Lord Allan of Hallam (LD)]

My Lords, I am very grateful to the noble Lord, Lord Hunt, for his Motion, and for giving us an opportunity to debate a series of questions raised by the statutory instrument about the life sciences sector more broadly.

I do not think that it is enough for us simply to say, “Look, Britain is great”, and expect that to act as a magnet for international pharmaceutical companies to invest in it. We certainly have a very strong sector and excellent skills, but the market is not sentimental: it reacts to financial signals. The noble Lord, Lord Lansley, was quite right to put us in the position of those people sitting in boardrooms, where soft signals such as the Prime Minister holding a summit are fine but the determinations will be based on hard numbers in spreadsheets. That is the way businesses work.

The concern that we should have in considering the statutory instrument is whether this settlement will be absorbed as simply the cost of doing business in the UK or whether it will change behaviour of businesses in a negative way. On all sides of the House, I think we hope that it will not do the latter. The ideal outcome is that businesses continue to invest in spite of taking a hit, but the risk that that will not be the case is genuine and deserves the debate that we are having today.

We have already seen some companies move from the voluntary to the statutory scheme. It would be helpful if the Minister could indicate how many. I understand that the rates are similar, but it is a pretty strong signal when a company says in that board discussion that it is important for them to say, “We are not taking this lying down. We are upset. Therefore, we will pay what we have to pay, but only if you make us do it. We are not willing to do it on a voluntary basis.” As I said, the numbers may look similar, but the signal seems pretty clear to me. I hope the Minister can indicate the scale of the trend and his views on whether we should be concerned that that is happening.

It is interesting to note from the Explanatory Notes to the legislation that the consultation responses were nearly uniformly negative. I was going to say that they were uniformly negative, but they were not: only 30 out of 33 were. I was fascinated by this comment in paragraph 10.3, which referred to having more responses than in previous years. It said:

“It is likely this rise in the number of responses reflects a stronger level of interest in the consultation from industry in advance of negotiations for a new voluntary scheme to succeed VPAS, which expires at the end of 2023.”


I suggest that the increased number of consultations reflects something else: it is a cry for help and a protest against the fact that the rate is now over 20% and seems to be rising inexorably. Businesses are not responding in greater numbers just because of something happening in the process but because of the substance. When the noble Lord, Lord Warner, made his 7% reduction some years ago, I suspect he would not have had the same number of responses, because the reduction was not at the levels we are seeing now. The fact that we are at over 20%, and that there seems no prospect that that will reduce, means that businesses want to engage.

Here is the question for the Government: what signal do they want to send to these major companies that produce medicines that our population depends on? Is it that the trend is going to improve over time, so that they are encouraged to invest in test facilities and research in the UK—that they can expect to have more free cash flow, as it were, from the sales that they are making in the UK, to invest back into the UK? Or will the trend stay the same, at a level that they have told us they already find unacceptable, or even worsen? As the Covid backlog is, hopefully, dealt with more expeditiously, there will be more dispensing of branded drugs, and there is a scenario in which things continue to get worse. If companies feel that they have less to invest, those signals will be negative.

14:15

The noble Lords, Lord Lansley and Lord Hunt, commented on boardroom discussions, in which all of this will be summarised down to some bullet points for a pharmaceutical company board. The bullet point will say “UK negative, Germany positive” or “UK trending positive, Germany trending negative”. That will be based on everything the Government do, especially on revenue, because revenue is the lifeblood of any company. However well-intentioned and socially beneficial companies are, revenue matters.

I was very interested in the comments made by the noble Lord, Lord Lansley, about how we might move to a different model. I hesitate to confess ignorance in the House, but hopefully it was a constructive naivety I had when I came to this. This has been the first time I have had to read up on how this works. I was talking to somebody about it, who talked about this rate. I said “Oh, that’s the discount rate on the price for the drug”. They said “No, there is no pricing; it is a bucket”. It took me a little while to get my head around the scheme. I think most people would be quite surprised if they understood how it works.

I know that is a bigger conversation than the one we are having, but it is right that we think about whether there are models that would work better to achieve the objectives the Government have said they want: the availability of drugs at a reasonable price and continued investment in the life sciences industry. There is something to chew on there in terms of a broader discussion.

If we are serious about having a vibrant, growing life sciences sector in the UK, we need to look at how all government policies affect business decision-making, including the policy on branded medicines that we are discussing. Clearly, having a vibrant life sciences sector is better for employment and the availability of medicines for patients. It is also important for our resilience in future crises. This year, above all, we should be thinking that we need a domestic sector, whereas previously we might have been more comfortable simply relying on international solutions for drug development and availability.

If there is any area where a holistic industrial strategy might be appropriate, it is here, where the Government are a major customer. They are the most significant customer for these companies and therefore have levers to pull. Our concern with this statutory instrument is that we have got that lever and we are pulling it in the wrong direction.

[Baroness Wheeler (Lab)]

My Lords, I thank my noble friend for his usual expert and comprehensive explanation of his regret Motion on this SI, which is so important for the future of the NHS and the UK’s pharmaceutical industry and life sciences sector.

While the Government’s argument for maintaining equivalence between the two schemes makes sense, we certainly do not want companies to choose to leave the voluntary scheme for better rates. We on these Benches fully recognise the strong concerns about the impact and potential damage that the 27.5% clawback rate will cause to the manufacturer of branded medicines, to the availability of those medicines to the NHS and its patients and to future investment in the research and development of new drugs.

I point out that this is the first opportunity, on such an important subject, that we have had to discuss in depth the key issues my noble friend and other speakers across the House have raised, since the short Grand Committee debate last October on pharmaceutical research and development spending. The Minister will recall that it was his first debate as Health Minister and that he surprised us all by bursting into maiden speech mode when he summed up the debate. He expressed his confidence that the Government

“through Life Sciences Vision … will develop the end-to-end improvements required to attract an ever-growing proportion of pharmaceutical investment to the UK”.—[Official Report, 13/20/22; col. 135GC.]

He also made the acknowledgement that growing the UK’s proportion of global pharmaceutical investment meant improving

“every aspect of the life science ecosystem”.—[Official Report, 13/20/22; col. 133GC.]

As my noble friend and other expert speakers have shown today, this is just not happening.

The continuing dramatic decline in the UK’s share of global pharmaceutical investment is clear evidence of this, causing the loss of billions of pounds to the industry over the past 10 years. We have heard the stark figures. The NHS faces huge challenges and obstacles to becoming an effective innovation partner in supporting the access to and uptake of new and innovative drugs, which are so critical to developing better outcomes for patients and creating a thriving life sciences ecosystem. If the NHS continues to be slow on the uptake of innovative medicines and treatments, the UK could lose its position as a world leader in life sciences, particularly with the rapid advancements in biotechnology and AI.

For the UK to become a destination of choice for cutting-edge research, urgent action has to be taken to reverse the sharp decline in industry clinical research trials within the NHS and to address the standstill we have reached in developing the comprehensive strategy on patient data and research that is vitally needed. We need to balance the safeguards for patients and public engagement with the ability of accredited researchers to access the data they need to develop the valuable research at the heart of innovative medicines and treatments. What consideration are the Government giving to further embedding research within the NHS, both to underline the importance of patient participation and to allow a more direct link between health and science? During Covid we saw how, with the right drive and attitude, this can be done successfully for vaccine development, with life-saving results.

That is why the background and context of the proposals in this SI are so important. Despite the “remote” risk optimism of the impact assessment, and all the flaws that noble Lords outlined, the SI’s proposals for a substantial clawback, in 2023, of net sales income for UK biopharmaceutical companies greatly increases the risk of them reducing their current level of R&D investment. I look forward to the Minister’s explanation of how other countries that have similar clawback schemes—Ireland, Germany and Spain—managed to keep their clawback rates considerably lower than half what is proposed in the UK. This was mentioned by a couple of speakers. What assessment have the Government made of the impact these lower rates would have on investment in the UK? Why do they think that AbbVie and Lilly chose to leave the voluntary scheme?

In 2023, manufacturers of branded drugs in the voluntary scheme will be required to return almost £3.3 billion—or 26.5% of sales—to the Government, up from around £0.6 billion in 2021 and £1.8 billion in 2022. ABPI says that this means that the money spent on branded drugs has declined by 14% in real terms over the past decade, despite rising demand. The noble Lord, Lord Warner, pointed out that, overall, the savings to be made are minor when compared with the likely damage.

On the consultation exercise, I look forward to the Minister’s explanation of how 39 days of consultation over the Christmas period was sufficient to provide this. This is made even starker by the fact that 32 out of 33 respondents opposed the proposals. One thing we know businesses need in order to invest their money is certainty, but they are not getting it.

Finally, today’s discussions have made a convincing case for taking a long, hard look at the current scheme and how it is working. Negotiations are under way for the new voluntary scheme for pricing, access and growth, and we will watch them carefully. The priority must be to find a solution that allows patient access to the best-quality treatments, with good value for the NHS and taxpayer, while ensuring a fair return for the industry. We need to secure arrangements that will build confidence and provide mutual benefit for the NHS and industry. Can the Minister provide an update on the early talks or negotiations that have taken place? I noted the comments of the noble Lord, Lord Warner, about how this SI’s approach could be paused in the light of any significant developments that are likely to take place.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

I thank noble Lords for the debate, and I particularly thank the noble Lord, Lord Hunt, for bringing forward this important subject. It was clear from the contributions of noble Lords that we all want the same thing here, and this is a discussion about how best to achieve it. We all want the UK to be a

“science and technology superpower by 2030”,

as quoted by the Prime Minister. We all want a thriving life science sector, we want access to the best medicines for the NHS and we all want to ensure that the NHS is achieving value, in terms of money for the front line—I think we are united on those things. I also commend the fact that this debate was very much a discussion, so I will respond in that vein, rather than reading out a speech. I will try to discuss this from the Government’s point of view. I apologise if that means that I might not come across as quite as polished, but I would rather respond directly to the points raised.

We would all accept that we are striking a delicate balance here: between having value for the NHS—through, for example, the funding of £2.5 billion this year—and having value and making savings for frontline services, which we all want to see. While we are focusing on those, we also want to make sure that we do not go too far and damage what is, and what we want to be, a thriving sector.

The noble Lord, Lord Hunt, asked whether the Government are being complacent about this. The words of the Prime Minister, saying that he wants a negotiated outcome with the ABPI, are probably the strongest sentiment in terms of wanting a sensible, negotiated outcome. At this point, I say to the noble Lord, Lord Warner, that I am responding on behalf of the Government.

As the noble Lord, Lord Warner, pointed out, just today, the Chancellor is having a round table with the life sciences industry. That, too, is very much about getting a solution that works all the way round. Having said that, please remember that some of the comments I am making in this debate are about a balance. We are all aware that we are entering into a negotiation and obviously, in any negotiation, sides make points—sometimes at the negotiating table and sometimes publicly. Please take my comments in that vein; we want to make sure that a balance is brought to the debate.

[Lord Warner (CB)]

I am sorry to interrupt the Minister’s flow. He said that we are having the fruitful discussions that the Prime Minister wants with the industry and that they are starting to progress. However, the industry itself is starting with a figure in the single figures, nowhere near 27%. I am curious as to why we are having this discussion about progressing these regulations, as they seem to be going in totally the opposite direction from the aspirations the Prime Minister has.

[Lord Markham (Con)]

The mechanics behind this debate—I was planning to say that my noble friend Lord Lansley made this point—are about the alignment of the voluntary and statutory schemes. I think that we would all agree that it is sensible that the two are roughly aligned. We can argue over how high or low that figure should be, but we would agree, I think, that it is quite sensible that the two are aligned. If you had large disparities between the two, you would disadvantage, for instance, the members who have joined the VPAS system.

[Lord Warner (CB)]

I am sorry to interrupt the Minister again. We are talking about signals given to the outside world, in these discussions that are now taking place about the voluntary scheme. As the noble Lord, Lord Lansley, asked, rather elegantly, why do we have two schemes in the first place? There is something very odd about levelling up to a voluntary scheme’s level with a big increase and, at the same time, sitting down with the industry and saying how much we love it and that we want a new, agreed programme, when the industry is talking about figures which are nowhere near the figures in these two schemes. It seems almost politically inept.

[Lord Markham (Con)]

As I said, this is about the scheme and the pricing for this year. The negotiations happening now are about future years, while, technically, this debate is about making sure that the alignment is there for this year and its pricing. Given that the discount has been decided on for this year for the voluntary scheme, having alignment will ensure fairness, so that members in the voluntary scheme are not suddenly disadvantaged against the statutory scheme—which would happen if we were not putting in a similar price. It does not in any way predicate what a negotiated outcome might be for future years.

In terms of a future negotiation, if there was a VPAS-type scheme—again, everything is on the table—you would have the argument about alignment. Most people would accept, as my noble friend Lord Lansley was saying, that having an alignment between the two is a sensible mechanism. The real debate today is about what level that discount should be. Regarding the balance—and I am not making any value judgment about what the right level is—when this was first forecast in 2018, a forecast was put out about what the discount would be over a five-year period, and in year 5 it showed a discount in 2023 of 31.1%. Those were the projections made, at that time—in 2018—the ABPI welcomed the scheme as an innovative one. In fact, today, the discount is less than that, at 26.5%. This was all known and projected as part of the scheme at the time. That is not to say that, in these negotiations, it should not be reset or that we should not make sure that there is a sensible conversation, but I am trying to do this while making sure that there is a balance in the negotiation.

14:30

Turning to what the noble Baroness, Lady Wheeler, said about access, the evidence shows that we are in the top three in the world in terms of access and speed at which we get the top medicines. NICE has reduced the approval period from an average of 10 months to two months, so we really can get these things very quickly, and as we have shown, it approved 92% of medicines. We can see that we are getting access for patients. However, the key issue is not that but whether we are going to set the right conditions for the life sciences industry.

Again, as the noble Baroness, Lady Wheeler, and other noble Lords mentioned, it is not just about the price of drugs in the UK, because the UK is just one part of a very large market. When a company is deciding where to invest, it looks at all the conditions—how available clinical research is and how easy it is to do it, and whether the skilled people and the tax regimes, including tax credits, are in place. I absolutely accept that pricing is obviously a part of that, but you are making the R&D decisions across those bucket measures. It is vital in this debate that we make sure we are doing everything we can in the clinical research space; that is why I am so glad about the investments we are making in the federated data platform, so there is that clinical research database that industry can draw on. Obviously, we will look at a balance of recommendations in clinical research, so that we make sure we put the best environment in place.

On the point made by the noble Lord, Lord Hunt, about the discount rate, that is a matter for NICE, which I know it is considering. That is a slightly different point, but it is relevant in all this.

My noble friend Lord Lansley referred to branded generic drugs and whether they should be outside the scheme. It is a very good point, and one that is recognised, and it is being considered in the negotiations. Regarding whether we were discouraging new drugs coming on to the scheme and our getting access to them, of course, there is a three-year exemption from the VPAS, so with any new drug it is only in the fourth year that the rebates apply. It is precisely designed so there is that three-year runway, which will, I hope, ensure that we get access to the best drugs early on. As I said before, that is what the evidence shows.

Regarding how our pricing compares to other countries, the difficulty in trying to compare rebates is what level you start those rebates from, because you have different pricing to begin with. You cannot like-for-like compare 26% to 12%, because it all depends on what it is a discount from. So it is a complex area. If you look at the average spend per patient on medicines, assuming that European countries generally have a similar approach to the sorts of medicines that patients should have, you will see that our average spend is comparable to other European countries. So, on a very broad basis, I would say that the pricing is largely comparable and, to my knowledge, is not particularly out of kilter.

In response to the question from the noble Lord, Lord Allan, about the number of companies leaving: to my knowledge, five companies have moved recently. Clearly, if any more than zero companies move we should always want to understand the reason, so that is something that we need to be taking note of. I understand about signals to business. As the House knows, I was a CFO, and I know that when you are making your projections, suddenly having a large amount to claw back from your budget is not helpful in terms of investment decisions.

While it is difficult to talk too much about what is going on in negotiations, I would hope that noble Lords can see from my responses that there is a wide consideration of factors in play here. There is a balance we are trying to get right between it all. I should say in terms of balance that we are still in the top three countries in terms of investment. We had £1.9 billion invested from overseas in the UK, which put us in the top three worldwide, compared with £600 million just a few years ago in 2019. We raised £7 billion in terms of equity, so, while there are clearly areas that we need to keep an eagle eye on and not be complacent, at the same time, in terms of balance, we should accept that we are performing well in those areas.

After this last point, I hope I will have covered all the points raised, but, as ever, I will write a detailed response. In terms of the consultation period, I know that six weeks might generally be considered quite a short time. In this industry, where the scheme is very well known, there is a lot of knowledge and the forecasts have been highlighted for quite a while, I think the general feeling was that actually six weeks was not an unreasonable period, given the knowledge base; it was not as if this was a normal consultation.

I hope from the way I have responded to this debate that noble Lords go away with the impression that we are trying to get a balanced outcome here. As I say, we are all united in the objectives we are trying to get in terms of value for the NHS and access to these top medicines, while at the same time creating a thriving ecosystem for drug and pharmaceutical companies to come here.

In conclusion, I thank the noble Lord, Lord Hunt, for bringing forward this debate. I am sure this is something that we will all enjoy and discuss further as the negotiations progress. I can assure noble Lords that this is very, very high on our priority list.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister. I think he has responded in a positive way, which is gratifying and, I hope, sets the foundation for a proper negotiation with the industry to get a jointly owned voluntary scheme which will incentivise global pharma to invest in the UK.

For me, two or three themes come from this. First, the noble Lord, Lord Lansley, talked about the curiosity of a fixed drugs budget, and I found it curious when the Minister said we need value for money on medicines in order to have resources for front-line services. But medicines are a front-line service. Why is it a good thing to increase the number of doctors and nurses and buy more medical equipment, but it is suddenly shock-horror to spend more on medicines? What would we do without medicines? It is curious. I have never understood why the Department of Health has such a downer on the medicines budget, when it has just said—and I declare an interest as a member of the GMC—that it wants to see a massive expansion in medical school places. Why is the medicines budget regarded as such a negative factor? It defies all understanding; of all the great advances we have made in healthcare, how many have been made through new medicines? And I have to say that new medicines are rather easier to get than extra staff.

[Lord Markham (Con)]

May I just clarify? I completely agree that medicines are of course valuable. My comments were not about not spending money on medicines but about getting value for what we spend on medicines—not the quantity, not the quality, but the price that we are paying. I think that all noble Lords would agree that we want to make sure that we are getting the best value on pricing.

[Lord Hunt of Kings Heath (Lab)]

I fully accept that, but the sentiment that comes through is something that is shared throughout the National Health Service: that drugs expenditure, per se, is something to be held down. That is why, even though we have NICE, and bilateral negotiations—as the noble Lord, Lord Lansley, said—between NHS England and pharma companies in relation to specific drugs, at local level you have formularies and all sorts of mechanisms designed to ration medicines to patients. It is a curiosity about our whole approach. I agree with the Minister that one needs to start with a health budget. If we have—and I hope we do—new medicines coming on in relation to, say, Alzheimer’s, we will need to spend extra money in order to invest in them.

My second point—also made by the noble Lords, Lord Warner and Lord Allan, and my noble friend Lady Wheeler—is that it is very important that this is seen as a cross-government approach. If this is seen simply an issue for the Department of Health and NHS England in terms of the NHS budget, we will never get the kind of agreement that we need. If the Prime Minister is true to his word in terms of trying to reset the relationship—as the Minister implied—that is very welcome indeed.

This has been a very useful debate and I am very grateful to the Minister and other noble Lords. I beg leave to withdraw my Motion.

Motion withdrawn.

Online Safety Bill

Thursday 25th May 2023 Lords Chamber

Committee (9th Day) (Continued)

14:42

Schedule 7: Priority offences

Amendment 134

Moved by

[Baroness Merron]

134: Schedule 7, page 202, line 9, at end insert—
“Animal cruelty
A1_ An offence under section 4 of the Animal Welfare Act 2006 (unnecessary suffering).A2_ An offence under section 19 of the Animal Health and Welfare (Scotland) Act 2006 (unnecessary suffering).A3_ An offence under section 1 of the Wild Mammals (Protection) Act 1996 (offences).”Member’s explanatory statement
This amendment adds a number of animal welfare offences to the list of priority offences outlined in Schedule 7.

[Baroness Merron (Lab)]

My Lords, this is an unusual group: it has just one amendment—Amendment 134 in the name of my noble friend Lord Stevenson. It has also been signed by the right reverend Prelate the Bishop of St Albans, whom I thank; I know that the right reverend Prelate is currently in a debate in Grand Committee.

This amendment seeks to add animal cruelty offences to the list of priority offences set out in Schedule 7, which would require platforms to proactively identify and remove content that depicts animal cruelty, including torture and death. This content is increasingly common, and it is shocking—films of cats being kicked about as footballs, dogs being set on fire and monkeys being ensnared into plastic bottles with dogs then being set upon them. All this is widely shared and viewed, and none of it is properly addressed by social media companies. These animal cruelty offences clearly meet the criteria of prevalence, risk of harm and severity of that harm, which have been set out and previously used by the Government to justify additions to the list.

I turn first to prevalence. The Social Media Animal Cruelty Coalition database comprises over 13,000 social media links showing animal abuse, collected over the past two years. Social media platforms often fail to remove animal cruelty films when they are reported, despite that being a clear contravention of their policies. In fact, less than 50% of links reported by the coalition since August 2021 have been removed, with predictions of a “rapid proliferation” of animal cruelty footage over the years ahead. This analysis is supported by the RSPCA, which received 756 reports of animal cruelty on social media in 2021, compared with 431 in 2020 and 157 in 2019.

14:45

The evidence of harm is also clear. Polling commissioned by the RSPCA five years ago found that nearly one in four of 10 to 18 year-olds had seen animal cruelty on social media sites—a proportion which is very likely to have increased subsequently, given the growth in the prevalence of animal abuse films in recent years. Viewing animal cruelty can cause psychological harm to children, with findings suggesting that,

“There is emerging evidence that childhood exposure to maltreatment of companion animals is associated with psychopathology in childhood and adulthood”.

Viewing animal abuse can also lead to imitative behaviour. Research suggests that children who witness animal cruelty are three to eight times more likely to abuse animals themselves, while those engaging in animal cruelty at a young age are more likely to exhibit abusive and violent behaviour towards people as they grow older.

Amendment 134 supports practical consideration of the effect of policy upon the welfare of animals as sentient beings to fulfil the requirements of the Animal Welfare (Sentience) Act 2022 and help the Government to meet their pledge to

“continue to raise the bar”

for animal welfare in the UK.

The adoption of the measures outlined in Amendment 134 would be a popular move. Thousands upon thousands of people have written in to make the Government aware that they want to see this modest addition, and they are supported by a wide range of animal welfare charities, including the RSPCA, the Born Free Foundation and the Humane Society International.

The Bill Minister in the other place stated that the addition of animal cruelty offences

“deserves further consideration as the Bill progresses through its parliamentary stages”.—[Official Report, Commons, 12/7/22; cols. 165-166.]

Earlier this year, as a comparator, the Government agreed to add offences under Section 24 of the Immigration Act, relating to illegal immigration, to the priority offences list. At the time, the Parliamentary Under-Secretary of State admitted that

“offences in Section 24 cannot be carried out online”,—[Official Report, Commons, 17/1/23; col. 314.]

but insisted that the inclusion of the offences was justified on the grounds of the damage that online encouragement of illegal immigration could cause to children. This is a helpful reference point and suggests that offences under Section 4 of the Animal Welfare Act—unnecessary suffering would be the reference—are directly commissioned for online content, which is growing in prevalence and causing demonstrative harm to children, should be added to the priority list.

I hope the Minister is sympathetic to Amendment 134 so we can make the necessary progress. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I rise to support Amendment 134, tabled by the noble Lord, Lord Stevenson, which was so ably introduced by the noble Baroness, Lady Merron. The Government accepted the Joint Committee’s recommendation that priority offences should be put in the Bill, and that is now contained in Schedules 5, 6 and 7. In particular, Schedule 7 sets out the priority offences. The noble Baroness, Lady Merron, has nailed it in setting out why these animal suffering-related offences fall within the Government’s criteria.

When the Government responded to the Joint Committee, they accepted our recommendation that we should put priority content in the Bill. As the noble Baroness, Lady Merron, said, the criteria are very clearly set out in paragraph 86 of their report:

“The prevalence of such content on regulated services … The risk of harm being caused to UK users by such content; and … The severity of that harm”.

The noble Baroness has absolutely set out how these offences fall within those criteria: the prevalence of these offences; the abuse that is present; the viewing by children and its impact on them; the impact on animal welfare, which would be positive if this content were treated as a priority offence; and the very strong public support.

Of course—the noble Baroness did not quite go here, but I will—there is a massive contrast with the inclusion of the encouragement of immigration offence in Schedule 7. These offences have far greater merit for inclusion in Schedule 7. I very much hope the Minister will accede to what I think is an extremely reasonable amendment.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

I thank the noble Baroness for her amendment and the noble Lord, Lord Clement-Jones, for speaking so powerfully, as ever. I very much recognise the harms and horrors of cruelty to animals online or anywhere else. The UK has a proud history of championing and taking action on animal welfare, and the Government are committed to strengthening animal welfare standards and protections.

Our Action Plan for Animal Welfare demonstrates the Government’s commitment to a brighter future for animals both at home and abroad and provides a foundation for conversations on how we can continue to improve animal welfare and conservation in future. I can also reassure your Lordships that this Bill will tackle some of the worst online activities related to animal cruelty.

Amendment 134 seeks to add certain specified animal offences to the list of priority offences in Schedule 7. It is worth reminding ourselves that the Bill will already tackle some of the worst examples of animal cruelty online. This includes, for example, where the content amounts to an existing priority offence, such as extreme pornography, which platforms must prevent users encountering. Equally, where content could cause psychological harm to children, it must be tackled. Where the largest services prohibit types of animal abuse content in their terms of service, the Bill will require them to enforce those terms and remove such content. Improved user reporting and redress systems, as mandated by the Bill, will make it easier for users to report such content.

The Bill, however, is not designed to address every harm on the internet. For it to have an impact, it needs to be manageable for both Ofcom and the companies. For it to achieve the protections envisaged since the start of the Bill, it must focus on its mission of delivering protections for people. Schedule 7 has been designed to focus on the most serious and prevalent offences affecting humans in the UK, on which companies can take effective and meaningful action. The offences in this schedule are primarily focused on where the offences can be committed online—for example, threats to kill or the unlawful supply of drugs. The offences that the noble Baroness proposes cannot be committed online; while that would not stop them from being added for inchoate purposes, the Government do not believe that platforms would be able to take effective steps proactively to identify and tackle such offences online.

Crucially, the Government feel that adding too many offences to Schedule 7 that cannot be effectively tackled also risks spreading companies’ resources too thinly, particularly for smaller and micro-businesses, which would have to address these offences in their risk assessments. Expanding the list of offences in Schedule 7 to include the animal cruelty offences could dilute companies’ efforts to tackle other offences listed in the Bill which have long been the priority of this legislation.

Beyond the Bill, however, the Government are taking a very wide range of steps to tackle animal cruelty. Since publishing the Action Plan for Animal Welfare in 2021, the Government have brought in new laws to recognise animal sentience, introduced additional legislative measures to tackle illegal hare-coursing, and launched the animal health and welfare pathway as part of our agricultural transition plan. We will, of course, continue to discuss these important issues with colleagues at the Department for Environment, Food and Rural Affairs, who lead on our world-leading protections for animals, but, for the reasons I have set out, I am unable to accept this amendment. I therefore hope that the noble Baroness will withdraw it.

[Baroness Merron (Lab)]

My Lords, I am grateful to the Minister for his considered reply, outlining the ways in which he believes the Bill supports where this amendment is going. I am also grateful to the noble Lord, Lord Clement-Jones, for his support. Indeed, it is my view that the criteria have been met for inclusion of these animal welfare offences in this list of priority offences. It is, of course, disappointing that the Minister does not share the view that we have expressed.

Perhaps I could pick up a point from the Minister’s response. It seems to me that something that is illegal offline should also be illegal online. If something is illegal under the various Acts referred to but there is user-to-user content of these animal cruelty films, for example, is the Minister saying that this will be covered by the Bill in its current form?

I note that the Minister has spoken of continuing discussions with Defra, which is very welcome. I am also requesting a meeting to pursue this. It is something on which we could make progress, and I hope that the Minister would be open to that. With that, I beg leave to withdraw the amendment.

Amendment 134 withdrawn.

Amendment 135 not moved.

Amendment 135A

Moved by

[Lord Parkinson of Whitley Bay]

135A: Schedule 7, page 203, line 14, at end insert—
“10A_ An offence under section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).”Member’s explanatory statement
This amendment adds the specified offence to Schedule 7, with the effect that content amounting to that offence counts as priority illegal content.

[Lord Parkinson of Whitley Bay (Con)]

As noble Lords will recall from the earlier debate on this issue, His Majesty’s Government take tackling violence against women and girls extremely seriously. This is why we have ensured that the Bill provides vital protections for women and girls, so that they can express themselves freely online without fear of harassment or abuse.

As noble Lords know, the Bill places strong duties on providers regarding illegal content. The Bill takes an approach which protects all users, but the framework accounts for the fact that some offences can disproportionately affect certain people. To that end, we have already listed several priority offences in Schedule 7 that we know disproportionately affect women and girls. These include sexual exploitation, intimate image abuse— including so-called revenge pornography—and extreme pornography.

In addition, I want to be clear that the Bill will also cover content which intentionally encourages priority offences, an issue that was raised as a concern in our previous debate. Paragraph 33 of Schedule 7 has the effect that inchoate offences of encouraging or assisting a priority offence are themselves to be treated as priority offences under the Bill. As a result, for example, where there is content that intentionally or knowingly encourages harassment online, services will have proactive duties in relation to this content.

Furthermore, the Bill will soon—as I mentioned earlier—introduce new intimate image abuse offences to tackle behaviour, such as the sharing of deep-fake images. These new offences will be listed as priority offences, as is already the case for the current revenge pornography offence under Section 33 of the Criminal Justice and Courts Act 2015. These offences are a major milestone for protecting women and girls, and will be introduced to the Bill as soon as possible. They will sit alongside the Bill’s other criminal provisions, such as its offences on cyberflashing, false communications and threatening communications.

Although I appreciate the intention behind Amendments 269 and 270 and look forward to hearing the arguments made by the noble Lords who will speak to them, I remain concerned by the approach suggested to change Clause 167 to a consent-based model rather than the current intent-based approach. We are confident that the offence, as drafted, captures acts of cyberflashing, including when supposedly done “for a joke”—which, of course, it certainly is not. This is because the focus of the offence as drafted remains firmly on the perpetrator’s abhorrent behaviour and not on the actions of the victim, as would happen with a consent-based approach.

15:00

I am grateful to the noble Lords who attended the briefing we organised with Professor Penney Lewis of the Law Commission, who explained in detail why it has taken the approach it has in suggesting this drafting. I know that a number of noble Lords who attended found that it was useful and put their minds at rest. However, I look forward to listening to the thoughts of other noble Lords in this debate.

Amendment 271 would require instances of cyberflashing to be reported to the Crown Prosecution Service. The CPS is not the appropriate body to receive such reports, as its role is to prosecute criminal offences which the police have investigated. In addition, the Bill is primarily about introducing new duties on service providers. It requires them to take responsibility for the safety of their users and prevent illegal content and activity appearing on their services in the first place. I welcome the discussion we will have on these amendments and will listen closely to the points raised in them. However, I hope to be able to reassure noble Lords that these amendments are not needed.

Before we have that debate, I will address government Amendment 135A in my name. Although Schedule 7 already contains several offences which we know will go a long way to protect women and girls online, we want to go further to strengthen the protections in the Bill. That is why the Government have, following discussions, tabled an amendment to list controlling or coercive behaviour as a priority offence in Schedule 7. Doing so will require platforms proactively to identify and tackle content which amounts to this offence.

Measures that platforms can take to tackle this behaviour could include increased safety-by-design features aimed to prevent this type of content occurring in the first place, trusted flagger programmes, or options to enable users to report certain behaviour to platforms. As your Lordships will be aware, the offence of controlling or coercive behaviour, like some other priority offences currently listed in Schedule 7 such as harassment and stalking, includes a course of conduct element. I reassure noble Lords that platforms will be required to tackle this type of behaviour to comply with their safety duties in the Bill.

I hope that noble Lords will accept the government amendment, I look forward to the debate, and I beg to move.

[Baroness Burt of Solihull (LD)]

My Lords, I will speak to Amendment 270 in the name of my noble friend Lady Featherstone, who I regret to tell the House is still indisposed, and to support Amendments 269 and 271 respectively in the names of the noble Baronesses, Lady Merron and Lady Berridge, which my noble friend also signed up to.

In the real world, if a man flashed his genitals at a woman or a girl in public, this would constitute a criminal offence punishable by up to two years in prison. Rightly so—she has no choice in the matter. He may do it to cause alarm, distress or humiliation, or to obtain sexual gratification. Apparently, he may hope that the girl or woman he flashes to will be overcome with desire for him, although you would be hard-pressed to find many cases of this pipe dream—pun intended—ever becoming a reality. More seriously, however, this behaviour can be a precursor to more serious offences, as happened with the murder of Sarah Everard.

In the online world, many things are done and said which would be totally unacceptable in real life. Therefore, while the motivation for physical flashing is usually to obtain sexual gratification or cause fear in the victim, in the permissive world of online other motivations are mooted—“for a laugh”, in the hope of reciprocal pictures being flashed back at the flasher, or even in the hope of initiating something physical—although in the online world, as well as in the real world, unsolicited images of male genitalia are rarely welcomed by women or girls.

Indeed, the vast majority of women who receive these unsolicited images are not laughing. Research by Professor Clare McGlynn KC at Durham University found that women report feeling violated, threatened, intimidated and harassed. They experience a loss of control, privacy and sexual autonomy. They feel personally targeted. Some women are bombarded with these images across social media and dating apps, so they are intimidated into changing their behaviour online as a result. This is in no one’s interests; it is something the Bill is intended to prevent. Research from Jessica Ringrose and colleagues at UCL found that 76% of teenage girls had been sent unwanted explicit images by their peers and by strangers. The women-orientated online dating platform Bumble produced a survey finding that 48% of millennial women had been cyberflashed in the last year alone.

The Law Commission recommended a new criminal offence of cyberflashing, and its recommendation has been incorporated in Schedule 7. The inclusion of cyberflashing as a potentially criminal offence is to be warmly welcomed. However, the premise of the Bill as it stands is motive based. This means that the prosecution must prove that the sender had the intention to cause distress, alarm or humiliation to the victim, or that sexual gratification was the motive and the sender was reckless as to any distress that might be caused. This means that many forms of cyberflashing, including when men are doing it to “have a laugh” or to show off to their friends, would not be covered, regardless of the harm caused to the victims. Currently, someone who sends a dick pic to a girl “for a laugh” is unlikely to be prosecuted if he thinks, “She should have found it funny too”. Really? If any noble Lord has evidence that most women enjoy unsolicited cyberflashing, let him bring it forward.

I ask the Minister the rhetorical question: how do you prove motivation? The Minister may have been told that many men send these images in the hope of getting nudes or other favours in return, and as a form of sexual gratification. Proving motive will be well-nigh impossible, and the sheer fact of having to prove it to get a conviction will put off police. They are hardly going to waste precious resources prying into senders’ backgrounds. How would you do that? Check out their porn habits, perhaps? This is the difficulty we have seen with the need to prove intent to cause distress in the distribution of intimate images offence. Under these strictures, very few prosecutions would result and girls and women would continue to suffer.

To my mind, and to the minds of all the women’s organisations that responded to the government consultations, it is all the wrong way around. Ultimately, the motivation of the perpetrator has no bearing on the outcome for the victim. They suffer regardless. If alarm, distress, humiliation, et cetera was caused, would the logical solution not be to take steps to prevent it in the first place? Would it not prevent a lot of suffering if the sender were to check that they were not going to cause those effects before sending the dick pics? It is not hard to do, but it may well cause someone who thinks it is a fun prank to send a picture of his willy to think again.

This amendment would send the clear message to men and boys that you have to have consent before you send your image. This would have an educational value, too. It is about learning how to respect women and girls and appreciate that they are different in their thinking from boys and men.

As it stands, sending unsolicited images could have the effect of bullying, intimidating or sexualising women and girls. This is not good enough, and we would be squandering the opportunity to protect women and girls. It is not difficult to ask whether it is okay before you send.

I do not understand the inconsistency of the Law Commission here. In its 2022 report on intimate image abuse, the Law Commission recommended an offence of taking and sharing intimate images without consent, regardless of motivation. It used the same arguments that Amendment 270 uses today, including difficulty in evidencing the intention of the perpetrator. In November 2022 the Government accepted the Law Commission’s recommendations. Surely the same principle applies to cyberflashing.

Amendment 270 has also addressed any circumstances in which use of legitimate images of genitals might be inadvertently caught in the net. These would, of course, not attract prosecution. I will not list them all here: they are in proposed new subsection (7) in the amendment. Young boys would be appropriately dealt with through the youth justice system: it is in no one’s interest to brand them with a criminal record, unless that would be in the public interest.

The argument boils down to priorities. The Bill as it stands prioritises boys’ and men’s rights to be “funny” over girls’ and women’s rights to live free from harassment and abuse. We must stop making women who receive such images responsible and hold those who commit gendered harms to account. I hope the Minister will agree.

[Baroness Gohir (CB)]

My Lords, I support Amendment 135A in the name of the noble Lord, Lord Parkinson. I also support Amendment 269 in the name of the noble Baroness, Lady Merron, and Amendment 270 in the name of the noble Baroness, Lady Featherstone, and have added my name to both. I wish the noble Baroness, Lady Featherstone, good health and hope to see her back soon.

I welcome adding coercive control to Schedule 7 to ensure that content amounting to this offence counts as priority illegal content. Coercive control has a very damaging and long-term impact on mental health and, increasingly, abusers are maintaining their power and hold over victims through digital coercive control, which is like having invisible chains that you cannot break free from. This will send a clear message to tech companies that they must better understand and tackle online domestic abuse and will mean that perpetrators will be held accountable for their actions.

I also welcome the effort by the Government to criminalise cyberflashing. No one should be forced to see images of genitals. This is a growing form of sexual harassment of girls and women. Of course, I acknowledge that young boys and men can also be sent unwanted images. However, the majority of the cases involve images of male genitals being sent by men to women and girls. Very worryingly—as mentioned by the noble Baroness, Lady Burt—research by Professor Jessica Ringrose from 2020 found that 76% of girls aged 12 to 18 had been sent unsolicited nude images of boys or men.

While I am pleased that concerns raised by women and women’s groups have been heard by the Government, the wording in the Bill does not go far enough to protect women and girls from this type of sexual harassment. With the present wording, an offence is based on motive rather than consent, as mentioned by the noble Baroness, Lady Burt. I also thank Professor Clare McGlynn, Bumble and many others who have made a strong case for a consent-based cyberflashing offence rather than the motive-based approach proposed by the Government.

I put my name to these amendments because the offence in its current form will not be effective. It relies on the victims of cyberflashing, who will mostly be women and girls, to prove that the motive or intention in sending the image of genitals was deliberately to cause distress or for sexual gratification, so I ask: why should the onus be put on the victim to prove the sender’s intent when it comes to reporting cyberflashing? I would be grateful if the Minister could respond to this question.

15:15

How are women and girls going to prove the motive of the person sending the images, as already mentioned? I would also like the Minister to share his thoughts on that, as it will not be easy. The perpetrator could say “It was a joke” or “I did not do it for sexual gratification”. Then imagine them reporting it to the police, who research already shows do not take offline stalking and harassment seriously. In reality, many women and girls are likely to be turned away by the police because they will say it is hard to prove the motive. Once men realise that they can get away with sending unwanted sexual images, they may then deliberately gaslight women and girls and send further images, safe in the knowledge that they will not have the law used against them.

The current wording in the Bill, which bases the offence on motive and not consent, may well have been adopted because the Law Commission recommended it. However, that does not mean the commission got it right, despite its best intentions. What is even more confusing is that the current approach is out of step with other laws. For example, for intimate image abuse, offences are based on consent, which the Law Commission actually recommended. I am not sure why the Law Commission has not been consistent in its approach, as has been mentioned.

Perhaps it may not have wanted to criminalise young people for misjudged humour. However, I understand that there are CPS guidelines on having the option to be more lenient on younger people when they commit offences. Perhaps guidelines for this offence can be drawn up where they are given a first warning, which is logged by the police, and arrested only if they commit a second offence. Similar warnings exist for harassment, but that first warning must still be counted, even if the perpetrator moves on to a different victim.

I feel that the current approach in the Bill is sexist because it prioritises the entitlement of men to send images over a woman’s entitlement not to receive those images. The current approach also does not consider the impact on women and girls of receiving such unwanted images. It can cause significant emotional distress, with feelings of violation, it can be traumatic due to past trauma, and it can make them feel very unsafe. The current approach will also contribute to the further normalisation of sexual harassment, and inadvertently help to perpetuate a culture where men will feel entitled to invade the boundaries of women without any consequences.

Research by Bumble has found alarming statistics, including that: 35% of women have received an unsolicited nude image at work; 27% of women have received an unsolicited nude image when on public transport; one in five women have received unsolicited nude images when walking down the street; and almost half of 18 to 24 year-olds have received a sexual image that they did not consent to. Let us make the law clearer and stronger by basing the offence on consent. If anyone has not consented to receiving sexual images then it should be an offence. I therefore urge that Clause 167 is left out and replaced with the new clause as proposed by the noble Baroness, Lady Featherstone.

[Baroness Berridge (Con)]

My Lords, I am grateful to noble Lords who have added their name to my Amendment 271, which arose out of concerns that there are now seemingly several offences that laudably aim to protect women but are not being enforced effectively. The most notable in this category is the low rate of rape cases that are prosecuted and lead to convictions. The amendment is not affected in theory by the definition of cyberflashing, whether it is in the form recommended by the Law Commission, that of specific intent, rather than being based on consent. However, in practice, if it remains in that specific intent form, then the victim will not be required to go to court. Therefore, in practice the amendment would be more effective if the offence remained on that basis. However, even if the victim on that basis does not need to go to court, someone who has been cyberflashed is, as other noble Lords have mentioned, unlikely to go to the police station to report what has happened.

This amendment is designed to put an obligation on the providers of technology to provide a reporting mechanism on phones and to collate that information before passing it to the prosecuting authorities. The Minister said that there are various issues with how the amendment is currently drafted, such as “the Crown Prosecution Service” rather than “the police”, and perhaps the definition of “providers of internet services” as it may be a different part of the tech industry that is required to collate this information.

Drawing on our discussions on the previous group of amendments regarding the criminal law here, I hope that my noble friend can clarify the issues of intent, which is mens rea and different from motive in relation to this matter. The purpose of the amendment is to ensure that there will be resources and expertise from the technology sector to provide these reporting mechanisms for the offences. One can imagine how many people will report cyberflashing if they only have to click on an app, or if their phone is enabled to retain such an image, since some of them disappear after a short while. You should be able to sit on the bus and report it. The tech company would then store and collate that, potentially in a manner that it would become clear. For instance—because this happens so much as we have just heard—if six people on the 27 bus multiple times a week report that they have received the same image, that would prompt the police to get the CCTV from the bus company to identify who this individual is if the tech company data did not provide that specificity. Or, is someone hanging out every Friday night at the A&E department and cyberflashing as they sit there? This is not part of the amendment, but such an app or mechanism could also include a reminder to change the security settings on your phone so that you cannot be AirDropped.

I hope that His Majesty’s Government will look at the purpose of this amendment. It is laudable that we are making cyberflashing an offence, but this amendment is about the enforcement of that offence and will support that. Only with such an easy mechanism to report it can what will be a crime be effectively policed.

[Baroness Morgan of Cotes (Con)]

My Lords, I, too, wish the noble Baroness, Lady Featherstone, a very speedy recovery. Her presence here today is missed, though the amendments were very ably moved by the noble Baroness, Lady Burt. Having worked in government with the noble Baroness, Lady Featherstone, I can imagine how frustrated she is at not being able to speak today on amendments bearing her name.

As my noble friend said, this follows our debate on the wider issues around violence against women and girls in the online world. I do not want to repeat anything that was said there, but I am grateful to him for the discussions that we have had since. I support the Government in their introduction of Amendment 135A and the addition of controlling or coercive behaviour to the priority offences list. I will also speak to the cyberflashing amendments and Amendment 271, introduced by my noble friend Lady Berridge.

I suspect that many of us speaking in this debate today have had briefings from the wonderful organisation Refuge, which has seen a growing number of cases of technology-facilitated domestic abuse in recent years. As a result of this, Refuge pioneered a specialist technology-facilitated domestic abuse team, which uses expertise to support survivors and to identify emerging trends of online domestic abuse.

I draw noble Lords’ attention to a publication released since we debated this last week: the National Police Chiefs’ Council’s violence against women and girls strategic threat risk assessment for 2023, in which a whole page is devoted to tech and online-enabled violence against women and girls. In its conclusions, it says that one of the key threats is tech-enabled VAWG. The fact that we are having to debate these specific offences, but also the whole issue of gendered abuse online, shows how huge an issue this is for women and girls.

I will start with Amendment 271. I entirely agree with my noble friend about the need for specific user reporting and making that as easy as possible. That would support the debate we had last week about the code of practice, which would generally require platforms and search engines to think from the start how they will enable those who have been abused to report that abuse as easily as possible, so that the online platforms and search engines can then gather that data to build up a picture and share it with the regulator and law enforcement as appropriate. So, while I suspect from what the Minister has said that he will not accept this amendment, the points that my noble friend made are absolutely necessary in this debate.

I move on to the cyberflashing amendment. It has been very ably covered already, so I do not want to say too much. It is clear that women and girls experience harms regardless of the motives of the perpetrator. I also point out that, as we have heard, motivations are very difficult to prove, meaning that prosecutions are often extremely unlikely.

I was very proud to introduce the amendments to what became the Domestic Abuse Act 2021. It was one of my first contributions in this House. I remember that, in the face of a lockdown, most of us were working virtually. But we agreed, and the Government introduced, amendments on intimate image abuse and revenge porn. Even as I proposed those amendments and they were accepted, it was clear that they were not quite right and did not go far enough. As we have heard, for the intimate image abuse proposals, the Law Commission is proposing a consent-based image abuse offence. Can my noble friend be even clearer—I am sorry that I was not able to attend the briefing—about the distinction between consent-based intimate image abuse offences and motive-based cyberflashing offences, and why the Government decided to make it?

I also gently point out to him that I know that this is complicated, but we are still waiting for drafting of the intimate image abuse offences. We are potentially running out of time. Perhaps we will see them at the next stage of the Bill—unless he reveals them like a rabbit out of a hat this afternoon, which I suspect is not the case. These are important offences and it will be important for us to see the detail so that we can scrutinise them properly.

Finally, in welcoming the Government’s amendment on coercive control, I say that it is generally poorly understood by technology companies. Overall, the use of the online world to perpetrate abuse on women and girls, particularly in the domestic abuse context, is certainly being understood more quickly, but we are all playing catch-up in how this happens while the perpetrators are running ahead of us. More can be done to recognise the ways that the online world can be used to abuse and intimidate victims, as the Government have recognised with this amendment and as the noble Baroness, Lady Gohir, said. It is very necessary in debating the Bill. I look forward to hearing the Minister’s remarks at the end of this debate.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am pleased to add my name to Amendment 271, to which the noble Baroness, Lady Berridge, has spoken so comprehensively. I too heard the criticisms made by the Minister, but they do not take away from the intention behind that amendment, which is really important. Like others, I hope to convey the well wishes from around the House to the noble Baroness, Lady Featherstone. I am grateful the noble Baroness, Lady Burt, for introducing this whole section with a great deal of clarity.

I will not repeat what has been said about the traumas involved, because that has been covered. It seems that one of the real difficulties is how people in receipt of these ghastly images and experiences can report them and get something done.

15:30

A study from UCL and the University of Kent in 2021 found that 51% of people who had received unwanted sexual content without their consent did nothing about reporting it and one-third of people thought that reporting did not work anyway; there was no point, and it would add to their own trauma. The other difficulty with reporting, which I do not think has been touched on yet, is that some of the perpetrators of cyberflashing do so with false identities. They are nearly all men who take on false identities, so tracing them is particularly difficult.

In listening to the debate, I welcome the government amendment, because, like others have said, coercive and controlling behaviour has been very poorly understood across the whole of society until very recently. It is to the credit of the noble Baroness, Lady Morgan of Cotes, that awareness has risen. People have seen what has been happening in front of their own eyes, but they never noticed it previously.

It seems that this difficulty, again, goes back to the debate we had previously on the need for some form of complaints system, whereby people can report easily to a complaints system and have confidence in that complaint being collated with other similar complaints, which would then allow action to be taken.

[Baroness Stowell of Beeston (Con)]

My Lords, I welcome government Amendment 135A and the inclusion in the Bill of the new offence of cyberflashing.

I understand why questions have been raised, and indeed arguments advanced, about the way in which this offence has been crafted and whether the onus should be on the perpetrator or the victim of such a crime. I tend to come down on the side of the Law Commission and what is in the Bill as it stands. I have thought about it, and I have listened carefully and read the various briefings. I have weighed it up and found it quite hard at times to make my mind up. On balance. I would stick with what is in the Bill.

The noble Baroness, Lady Burt, said something I am not sure is correct. She said that, in the way it is currently included in the Bill, it will be the responsibility of women and girls to show that they are harmed by this. My understanding is that the opposite of that is true; they just need to report it and the responsibility sits on the shoulders of the person distributing these images. I am sure my noble friend the Minister will be able to confirm that—or otherwise—when he comes to wind up.

The only other thing in that context which I will add—I think this has been touched on by others—is that it is important, in introducing this as a new offence, that we ensure that we educate young people away from what I have been told has now become quite a common practice as a way of expressing interest in one another. I do not think that, just because it is happening, we should tolerate it and say, “Okay, well that’s all right then”. I do not think that it is right, and we should be much clearer about advising and explaining to our young people why that is not the best way to express any kind of interest in anyone, whether they are of the opposite sex or of the same sex. I also understand this is a common practice among gay men as well. I just think that taking photographs of one’s genitals and distributing them to other people is not a good idea—that is my argument.

My noble friend Lady Berridge’s Amendment 271 is an interesting proposal. What I found compelling about it was her argument that we will introduce a new offence in the Bill, and, specifically in that context, she proposes a way to report receiving these pictures when people do not want to receive them, and to do so in a way that makes it easier for the police to see new trends and incidences emerging. It is then more likely that they would be able to pursue a perpetrator. However, although I hope my noble friend the Minister will consider this carefully, I do not know what the tech companies would argue about their position, having been given that responsibility. So I am interested in her proposal and think that it is worth proper consideration, but I say that without the benefit of an understanding of where the tech firms are on it. But, overall, I welcome what the Government propose and offer my support.

[Lord Clement-Jones (LD)]

My Lords, alongside others, I very much welcome government Amendment 135A and how the Minister introduced it. But there is a big “but” as regards much of the rest of what he said. I very much welcome that this will be included as a priority offence, and I join other noble Lords in that—but there is still a view out there that women and girls are being short-changed by the Bill. The other day, we had a debate on the Violence Against Women and Girls Code of Practice, and the same feeling about the cyberflashing offence was very much there, which is why I strongly support Amendments 269 and 270, which would alter the nature of Clause 167.

The equivalence between online and offline was mentioned by my noble friend Lady Burt—I also regret that my noble friend Lady Featherstone has not been with us for some time—and she introduced extremely clearly and well that this kind of cyberflashing offence leads to other and worse offences in both the offline and the online worlds, as we have seen.

Like others, I am in debt to Professor McGlynn for her analysis of the proposed offence. We had evidence from UCL and the Bumble survey, and there is of course also the YouGov survey that shows that nearly half of young women aged 18 to 24 have been sent an unwanted penis image—that is an extraordinary figure. So all of the evidence of this offence is there.

We have heard differing views on the offence—the noble Baronesses, Lady Berridge and Lady Stowell, are on the side of the status quo on the nature of the offence. The fact is that the Government’s proposal covers only some cases of cyberflashing, where motivated by a desire to cause “distress” or for “sexual gratification” with recklessness about causing distress.

I am not a criminal lawyer, but, in answer to the noble Baroness, Lady Stowell, you have to show intent beyond reasonable doubt—that is where the onus on the victim arises. There is a very high barrier in a criminal offence. My noble friend made that point clearly, and the analysis of the noble Baroness, Lady Gohir, was absolutely right that, of course, if you make it a criminal offence, where the issue is about consent rather than intent, you can always be more lenient when an offence does not seem so egregious, where there is clear misunderstanding or where there are other mitigating factors—that is what happens under the criminal law.

This is all about proving the motive—that is the real problem; it is technically called mens rea or the intent—so we need a clear message, as my noble friend said. I believe that we are squandering an opportunity here; it could be a real opportunity for the Government to send a much more powerful signal that the Bill is about protecting women and girls, despite the very welcome addition of abuse under Amendment 135A.

The noble Baroness, Lady Berridge, put her point extremely well. She made a very good case for another addition to the armoury of user-empowerment tools. Although I disagree with her about the ambit of the cyberflashing offence, she proposed something which would be extremely useful to add.

We ought to take heed from the noble Baroness, Lady Morgan, given her legal background. She referred to the Law Commission’s rather inconsistent approach. The very welcome proposal to extend the way that revenge porn events will apply seems to be extremely sensible. I am afraid that, in the battle of the professors, I prefer what Professor McGlynn is saying to what Professor Lewis is saying; that is the choice that I have made.

Following the way that the noble Baroness, Lady Gohir, talked about this issue, we need to call men to account. That is something that the Government need to pay heed to.

That is all I want to say on this subject. This is not just a technical aspect—it is not just a question of whether or not we accept the Law Commission’s advice in this particular case—it is about the difficulty that young women, in particular, will find in enforcing this offence, and we need to be very mindful of that.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a very good and well-focused debate. We have focused deeply on the particular issue I will focus on in my speech about why there is a difference in the Government’s approach to what seem to be, on the surface, very similar instances of the evidence we have all been looking at, and are convinced by, that, in some way, the internet, as currently constructed, is gendered against women. Something must be done about that.

I am grateful to the Minister for introducing this group. Amendment 135A is very well-drafted and appropriate for what we are doing. I have very little to comment on it. It is a difficult area, but I am glad that the Government are putting their money where their mouth was on this issue and that we are seeing some action coming forward.

My noble friend Lady Merron would have been speaking to our amendments in this group, but, unfortunately, she has been taken off for some treatment to her leg, which seems to have been slightly twisted. They follow on from the meeting that the Minister mentioned with Professor Lewis from the Law Commission, when she very expertly introduced this whole topic, explaining very carefully, and with great care and concern, the reasons why the Law Commission has proposed, and the Government have accepted, that the new law to be brought in on cyberflashing needs to be different. My problem with that was that it seemed, by the end of it, that the rationale for doing it differently from other offences of a similar nature and type was more to do with the fact that there were good reasons for having the ability to send dick pics—let us call them that, even though it is a horrible term to use.

It is sometimes necessary for pictures to be sent around, and examples of that were given. For example, in a medical situation in which a doctor, perhaps during the Covid epidemic, wanted to know about a patient’s particular problem in the genital area, a picture would be helpful in diagnosis. Sending that should not be made illegal. Other reasons were given. The argument was good, but not sufficient to trump the need to have in place a set of laws relating to the way in which the internet treats women and girls in this dimension that does not come from different directions and is not confusing but complementary.

15:45

That is why we have tabled Amendment 269, to probe a little further why the Government have opted for this approach, and the argument has been well made. It has been further picked up in the amendment from the noble Baroness, Lady Featherstone, which we also signed—and I send my best wishes to her for a speedy recovery. The way in which the noble Baroness, Lady Burt, introduced it made it very clear that the direction that she was coming from was that this was not a good thing, and I want to cover some of the ground on that.

We do not need to spend too much time on this, as the issue is very narrow; it is a question of choosing one of two options about how we bring this forward—whether it is consent based or whether to make it an offence on specific evidence from the individual who has sent the messages as to why they did it. For all the reasons, it seems to me that a consent-based offence is a much more comprehensive way in which to approach the issue. It covers all forms—you do not have to distinguish between them. It is more straightforward and much easier to understand, and that is a really important point. If, in passing the law, we are simply trying to attack bad behaviour, we are not going far enough. We want the laws to be illustrative and for people to learn from them. If it is a simple law and a simple concept of consent having to be required, and if not it is illegal, that opens up the opportunity to make much more of this than we previously have.

The evidence is there that this is a widespread and unpleasant happening. AirDropping seems to be one of the causes of that, and it is something that we do not seem to address. We are attacking the end result, which is the distress and unpleasantness caused, but have the Government thought about whether AirDropping could be looked at in more detail, so that the process was more of an offence, as it is one that seems to cause harm? If you are in an enclosed space, such as on a bus or another form of public transport, and somebody sends you an unsolicited image because you happen to have your phone on and have not barred AirDropping, that distress is compounded by the fact that somewhere close to you is somebody sending you images that you do not want to receive in a way that is meant to threaten or, as we have heard, might be to attract your attention in a positive way but, anyway, is unwanted. If we are not attacking that, why not? That seems an open goal, in some senses.

For all the reasons that we have this coming forward, we have arrived at a situation in which a large number of people who are affected by this and want to see the law change do not like the solution. It is inconsistent. The Government do not have to accept Law Commission recommendations. In fact, I have spent quite a lot of my time when not involved in this Bill trying to redress a decision taken by the Government not to implement a Law Commission proposal for a law to prevent a particularly egregious Victorian piece of legislation that is causing a lot of distress among people who take out high-cost loans, but we have not been able to make progress. The Government do not want to move. The Law Commission has developed a Bill, and I have put it in as a Private Member’s Bill but it has still not got through. I will have one more go before I give up. But we do not have to follow the Law Commission; we still have choices to make in relation to this. It could be a consent-based offence. For all the reasons that others have given—and I support them—it is a pity that that is not the case.

I signed up to the amendment in the name of the noble Baroness, Lady Berridge, because it is a very helpful one that we should think carefully about. It seems to get around the question about how to ensure that the process of reporting and the subsequent carrying forward of the cases that are made is picked up by those who would perhaps need a bit of support in that area. That is something we should support as well. I look forward to the Minister’s response.

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

I join all those who have sent our best wishes to the noble Baroness, Lady Featherstone, for a speedy recovery. I am grateful that noble Lords were able to take forward her points in this debate.

As I said at the outset, protecting women and girls online is an objective of this Bill, which is reflected by the number of priority offences we have included that disproportionately affect women and girls. This includes the addition of the controlling or coercive behaviour offence, and I am grateful for the support from across the Committee for that amendment. This, in addition to the new cyberflashing offence and other criminal law reforms, demonstrates our continued commitment to increase the safety of women and girls online.

The amendments tabled by my noble friend Lady Berridge and the noble Baronesses, Lady Featherstone and Lady Gohir, relate to cyberflashing. The new cyberflashing offence, alongside the package of offences in this Bill, will bring significant benefit for women and girls across the UK, too many of whom have been subjected to the distressing behaviour that noble Lords have spoken about in this debate. We share the aim of noble Lords who have spoken in favour of those amendments to ensure that this offence is effective at stopping this behaviour.

Regarding Amendments 269 and 270, I want to reassure your Lordships that the intent-based approach in Clause 167 has been tested extensively both by the Law Commission and subsequently by His Majesty’s Government. The noble Lord, Lord Stevenson, is correct that we do not automatically agree with what it says, but we do take the commission’s expert views very seriously. The Crown Prosecution Service has stated that it has no concerns about using the offence that has been drafted to bring perpetrators to justice. Indeed, it strongly supported the inclusion of the “sexual gratification” element, which would, according to the Crown Prosecution Service, enable it to prosecute this offence more effectively.

The offence will capture many instances of cyberflashing, such as where pictures are sent to strangers via AirDrop in a crowded railway carriage. I agree with the points noble Lords raised about the settings and the simple technological change that, at an operator level, could make a big difference here. We are well aware of the concern set out by the noble Baroness, Lady Burt of Solihull, that an intent-based approach may let perpetrators off the hook if they send images supposedly for a laugh. We do not accept that view. The courts will, in the normal way, consider all the evidence to determine whether the elements of the offence have been made out. It is of course never on the victim to have to prove the perpetrator’s intention; it is for the police to investigate alleged offences and for the Crown Prosecution Service to establish the perpetrator’s intention in court.

I draw noble Lords’ attention to the inclusion of the word “humiliation” in Clause 167. This will catch many supposedly joke motives, since the perverted form of humour in these instances is often derived from the victim’s humiliation, alarm or distress. This offence has been crafted following calls, including by victims’ groups, to include an intention to cause the victim humiliation.

My noble friend Lady Morgan of Cotes said she was unable to attend the briefing we organised with the Law Commission so, for the benefit of those who were not able to join, let me reassure noble Lords that Clause 167 is based on the offence proposed by the Law Commission, which held an extensive public consultation with victims, the police, prosecutors and academics, and was drafted following further engagement with the police and the Crown Prosecution Service.

The Law Commission, as Professor Lewis set out in that briefing for your Lordships, did consider a consent-based approach, and its final report highlights the significant concerns expressed by respondents to its consultation. A consent-based offence, as the commission found, would result in overcriminalisation, capturing behaviour that does not warrant criminal sanction. For example, as Professor Lewis outlined at the meeting, it could capture a patient sending their doctor an image of their genitals for medical reasons. I take the point that the noble Lord, Lord Stevenson, just made interrogating that. The commission found that it would also criminalise misjudged attempts at intimacy where there was, for example, no genuine intention to cause harm or upset. It has looked at these issues.

Requiring a specific intent is not new and is taken in line with other non-contact sexual offences, including “in person” flashing—the offence of exposure. The police and Crown Prosecution Service are very familiar with these offences and with the evidence that is needed in court to prove the required intent. Crucially an offence based on a lack of consent would shift the focus away from the actions and intentions of the perpetrator to the victim and what they may or may not have done. This would be likely to result in a victim’s previous sexual or private behaviour being interrogated in open court. We do not want victims of this behaviour to be put under that sort of pressure. We want the focus to be fully on the perpetrator’s actions and intentions. The provisions in the Bill have been carefully targeted to protect victims from the intrusive and disturbing behaviour that noble Lords have set out, not to subject them to an unnecessary and distressing interrogation of their private lives.

Changing the consent test to reasonable belief that the defendant would have consented, in order to avoid criminalisation, would not work. Applying this test would mean that it would be much easier for genuinely harmful and culpable cyberflashing to escape conviction. For example, it would make it easier for a defendant to make an excuse, such as claiming that they reasonably believed that a person had consented to see a picture because they were on a particular dating app or, as was discussed in the briefing with the Law Commission, claiming that the victim had smiled back at them in a meaningful way on a train. They are not, perhaps, strong defences, but they are not—I am sure—ones that noble Lords would want to encourage through the drafting of this amendment. We are confident that an intent approach is the most appropriate way to frame this offence and that it ensures that the criminal law is workable, so that we can bring perpetrators to justice.

[Lord Stevenson of Balmacara (Lab)]

I am sorry to interrupt the Minister in his flow. Just to go back a little bit, the amendment in the name of the noble Baroness, Lady Featherstone, attempted to resolve the questions about where it was legitimate for material of the nature that he has been describing to be circulated. Would be accept that that approach has some merit? If so, then I go on to ask: is the decision still to go with intent rather than content for reasons other than relating to that particular point?

[Lord Parkinson of Whitley Bay (Con)]

I am sorry, I was slightly distracted by noises off. Would the noble Lord mind repeating his question?

[Lord Stevenson of Balmacara (Lab)]

It is a very narrow point, but it is important in terms of the overall approach that we are taking on this. The Minister very accurately described the reasons that the Law Commission came up with for moving back to an intent-based rather than content-based approach. I wanted to ask him to check whether the wording in the amendment that we signed up to, in the name of the noble Baroness, Lady Featherstone—ably introduced by the noble Baroness, Lady Burt, and spoken to by many people around the Chamber—would cover off those points where there is legitimate reason for this material to be circulated. I used an unfortunate phrase that I will not repeat. Are the Government happy to accept that it is possible to get around that objection by the Law Commission by making legitimate those particular explicit reasons for those pictures being circulated? I make that point only to get an admission at the Dispatch Box that the Government could get round the issue that has been mentioned, but they are still deciding to go for an intent-based approach for other reasons, which the Minister has just adumbrated and which I accept are genuine.

[Lord Clement-Jones (LD)]

It may be helpful to the Minister to just repeat the terms of the amendment itself. If you reverse the point and do not have intent, you would still need to consider

“Whether a belief is reasonable”


which

“is to be determined having regard to all the circumstances, including any steps that A has taken to ascertain whether B consents”.

The noble Lord, Lord Stevenson, has absolutely hit the mark on this. This would not lead to terrible consequences and injustices because of this particular qualification.

16:00

[Lord Parkinson of Whitley Bay (Con)]

In brief, we think the Law Commission has it right—

[Lord Stevenson of Balmacara (Lab)]

If the Minister could write to me on the point once he has had advice, or perhaps inspiration from the Box, that would be very helpful.

[Lord Parkinson of Whitley Bay (Con)]

I will certainly do so. It requires flicking through a number of amendments and cross-referencing them with provisions in the Bill. I will certainly do that in slower time and respond.

We think that the Law Commission, which looked at all these issues, including, I think, the questions put by the noble Lord, has done that well. We were satisfied with it. I thought its briefing with Professor Penney Lewis was useful in exploring those issues. We are confident that the offence as drafted is the appropriate one.

My noble friend Lady Morgan and others asked why both the Law Commission and the Government are taking a different approach in relation to intimate image abuse and to cyberflashing. We are taking action to criminalise both, but the Law Commission recommended different approaches in how to criminalise that behaviour to take into account the different actions of the perpetrator in each scenario. Sharing an intimate image of a person without their consent is ipso facto wrongful, as it is a violation of their bodily privacy and sexual autonomy. Sending a genital image is not ipso facto wrongful, as it does not always constitute a sexual intrusion, so greater additional culpability is required for that offence. To give an example, sending a photograph of a naked protestor, even without the consent of the recipient, is not always harmful. Although levels of harm resulting from behaviours may be the same and cause the same levels of stress, the criminal law must consider whether the perpetrator’s behaviour was sufficiently culpable for an offence to have been committed. That is why we think the intent approach is best for cyberflashing but have taken a different approach in relation to intimate image abuse.

[Baroness Morgan of Cotes (Con)]

I thank my noble friend for that explanation, which is very helpful and there is a lot in his reply so far that we will have to bottom out. Is he able to shed any light at all on when we might see the drafting of the intimate image abuse wording because that would be helpful in resolving some of the issues we have been debating?

[Lord Parkinson of Whitley Bay (Con)]

I cannot give a precise date. The Committee knows the dates for this Committee are a moveable feast, but we have been having fruitful discussions on some of the issues we have already discussed—we had one yesterday with my noble friend. I appreciate the point she is making about wanting to see the drafting in good time before Report so that we can have a well thought through debate on it. I will certainly reiterate that to the usual channels and to others.

Amendment 271 additionally seeks to require companies in scope to provide systems which enable users to report incidents of cyberflashing to platforms. Clauses 16 and 26 already require companies to set up systems and processes which allow users easily to report illegal content, and this will include cyberflashing. This amendment therefore duplicates the existing requirement set out in the Bill. Amendment 271 also requires in scope companies to report cyberflashing content to the Crown Prosecution Service. The Bill does not place requirements on in scope companies to report discovery of illegal content online, other than in the instances of child exploitation and abuse, reflecting the seriousness of that crime and the less subjective nature of the content that is being reported in those scenarios.

The Bill, which has been developed in consultation with our partners in law enforcement, aims to prevent and reduce the proliferation of illegal content and activity in the first place and the resulting harm this causes to so many. While the Bill does not place any specific responsibilities on policing, our policing partners are considering how best to respond to the growing threat of online offences, as my noble friend Lady Morgan noted, in relation to the publication last week of the Strategic Threat and Risk Assessment on Violence Against Women and Girls. Policing partners will be working closely with Ofcom to explore the operational impact of the Bill and make sure it is protecting women and girls in the way we all want it to.

I hope that helps noble Lords on the issues set out in these amendments. I am grateful for the support for the government amendment in my name and hope that noble Lords will be content not to move theirs at this juncture.

Amendment 135A agreed.

Amendment 136 not moved.

Amendments 136A to 136C

Moved by

[Lord Parkinson of Whitley Bay]

136A: Schedule 7, page 204, line 31, leave out from “under” to end of line 32 and insert “any of the following provisions of the Immigration Act 1971—
(a) section 24(A1), (B1), (C1) or (D1) (illegal entry and similar offences);(b) section 25 (assisting unlawful immigration).”Member’s explanatory statement
This amendment adds the specified offences under section 24 of the Immigration Act to Schedule 7, with the effect that (amongst other things) content amounting to encouraging those offences (as per the Serious Crime Act 2007) counts as priority illegal content.

136B: Schedule 7, page 204, line 32, at end insert—
“22A_ An offence under section 2 of the Modern Slavery Act 2015 (human trafficking).22B_ An offence under section 1 of the Human Trafficking and Exploitation (Scotland) Act 2015 (asp 12) (human trafficking).22C_ An offence under section 2 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2 (N.I.)) (human trafficking).”Member’s explanatory statement
This amendment adds the specified offences to Schedule 7, with the effect that content amounting to those offences counts as priority illegal content.

136C: Schedule 7, page 205, line 36, at end insert—
“32A_ An offence under section 13 of the National Security Act 2023 (foreign interference).”Member’s explanatory statement
This amendment adds the specified offence to Schedule 7, with the effect that content amounting to that offence counts as priority illegal content.

Amendments 136A to 136C agreed.

Amendment 137 not moved.

Schedule 7, as amended, agreed.

Clause 54: “Content that is harmful to children” etc

Amendment 138 not moved.

Clause 54 agreed.

Amendment 138A not moved.

Clauses 55 and 56 agreed.

Clause 57: User identity verification

Amendments 139 and 140 not moved.

Clause 57 agreed.

Clause 58: OFCOM’s guidance about user identity verification

Amendment 141 not moved.

Clause 58 agreed.

Amendment 142 not moved.

Clause 59: Requirement to report CSEA content to the NCA

Amendments 143 to 148 not moved.

Clause 59 agreed.

Clauses 60 to 62 agreed.

Clause 63: Interpretation of this Chapter

Amendments 149 to 153 not moved.

Clause 63 agreed.

Amendment 154 not moved.

Clause 64 agreed.

Clause 65: Further duties about terms of service

Amendments 155 to 157 not moved.

Clause 65 agreed.

Amendment 158 not moved.

Clause 66: OFCOM’s guidance about duties set out in sections 64 and 65

Amendments 159 and 160 not moved.

Clause 66 agreed.

Clause 67 agreed.

House resumed.

Ministerial Code: Investigation of Potential Breach

Thursday 25th May 2023 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Tuesday 23 May.

“The Ministerial Code sets out the standards of conduct expected of Ministers in how they discharge their duties. The code is the Prime Minister’s document, but Ministers are personally responsible for deciding how to act and conduct themselves in the light of the code and for justifying their actions and conduct to Parliament and the public. The Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and of the appropriate consequences of a breach of those standards. Ministers remain in office only for so long as they can retain the confidence of the Prime Minister.

The Independent Adviser on Ministers’ Interests is appointed by the Prime Minister to advise on matters relating to the Ministerial Code and, as honourable Members will be aware, that may include considering matters of ministerial conduct. The independent adviser has published terms of reference, which state that if

‘there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary, feels that it warrants further investigation, the Prime Minister may ask the Cabinet Office to investigate the facts of the case and/or refer the matter to the independent adviser on Ministers’ interests’.

With regard to the matter concerning the Home Secretary, which has been the subject of recent coverage, the Prime Minister made it clear to the House yesterday that he is receiving information on the issues raised. Since returning from the G7, the Prime Minister has met both the independent adviser and the Home Secretary and asked for further information. It is right that the Prime Minister, as the head of the Executive and the arbiter of the Ministerial Code, be allowed time to receive relevant information on this matter. Honourable Members will be updated on this in due course.”

16:09

[Baroness Smith of Basildon (Lab)]

My Lords, the Prime Minister alone is the guardian of the Ministerial Code. The Prime Minister alone appoints the ethics adviser. The Prime Minister alone decides whether an alleged breach should be investigated; and whatever the outcome or conclusion of any report that is produced on a possible breach, the Prime Minister alone decides if a breach has actually occurred.

The Minister will be aware of demands and recommendations for greater independence. In the absence of such independence, and in light of the fact that so much lies with the Prime Minister, can she explain why calls for greater independence have been rejected by the Government? Will the Government publish the criteria on which the Prime Minister makes such judgments and explain today what those criteria are?

[The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)]

My Lords, the Ministerial Code sets out the standards of conduct expected of Ministers and how they discharge their duties. As the noble Baroness said, the Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards. That is indeed why he decides, as she has explained, but in light of advice from the independent adviser. The Prime Minister moved quickly to appoint an independent adviser, Sir Laurence Magnus, on whose advice he relies.

The noble Baroness asked why this system is not set up independently. This subject has been looked at by committees. Indeed, last year, as we discussed before, we did make some changes to the independent adviser’s powers and gave him more support. We believe that having an independent system would be a problem. An independent commission or system would amass considerable unelected power over the workings of government in somebody who does not have an elected mandate, without the checks and balances and accountabilities of elected politicians. We are here to debate, in a democratic way, circumstances that have gone on including, of course, the Home Secretary and the issue of the speed awareness course, which was the subject of this Question earlier in the week.

The criteria for investigating a breach, of course, depend on the circumstances. As the noble Baroness will know, the Ministerial Code is very wide ranging. It is the Prime Minister’s code, so he is rightly the decision-maker. The criteria for a particular investigation will depend on the issue being investigated.

[Lord Wallace of Saltaire (LD)]

My Lords, this is a small issue concerning a larger problem, which is the unconstrained and unaccountable prerogative powers of the Prime Minister and the deterioration of relations between the Civil Service and Ministers, which has come up again and again in recent years. I am puzzled and disappointed by the Minister’s reply to the Leader of the Opposition. The Answer in the Commons made a very strong point of saying, “This is the Prime Minister’s code and the Prime Minister is, in effect, the judge and jury of everything that happens”.

Toward the end of the last Labour Government, there were some rather good committee reports in the Commons on whether we now needed to limit the Prime Minister’s prerogative powers. I wonder whether, if the Conservatives found themselves in opposition again, they would not perhaps wish to revive that debate. I would hope that a Labour Government—or another Government of some sort—would begin to address that problem. If the independent adviser is really independent, why does he not have the ability to start his own investigations and then present them to the Prime Minister?

[Baroness Neville-Rolfe (Con)]

I will not speculate on what might happen under a different Government. I remind the noble Lord that there have been a number of reports on ethics and integrity, including from Nigel Boardman and the Committee on Standards in Public Life, and, as I said recently, we will lay our responses in Parliament in due course. However, I draw the House’s attention again to Sir Laurence Magnus, who has been appointed and has set off in a robust way. His report, which I promised would come out in May, is due to be published today—it may already have been or will be any minute.

I also draw attention to the fact that we strengthened the remit of the independent adviser in 2022. Slightly contrary to what the noble Lord was saying, the adviser now has the ability to initiate an investigation under the Ministerial Code after consulting with the Prime Minister, and the normal expectation is that the Prime Minister would agree to such an investigation. We have also updated the code to include more specific references to the duty on Ministers to provide the independent adviser with information reasonably necessary for carrying out the role. As I said before, we have also strengthened the arrangements for the office of the independent adviser, providing him with a dedicated secretariat of civil servants. However, I come back to the point I made before to the noble Baroness: this must be elective—it has to be democratic. That is why the Prime Minister decides on these matters.

[The Lord Bishop of Manchester]

My Lords, I am struggling here. It seems to be a basic principle that justice should not only be done but seen to be done. These processes seem so arcane and opaque that I wonder whether the noble Baroness can assure us how this process passes that test—or does it not apply to the Ministerial Code?

[Baroness Neville-Rolfe (Con)]

I simply do not agree with the right reverend Prelate. The Prime Minister has been clear that professionalism, integrity and accountability are core values of the Government. A number of inquiries have been set up by the Prime Minister. He has moved quickly to set them up and to take steps when they have been completed. Most recently, he moved very quickly on the matter of the Home Secretary, which was causing a distraction earlier in the week. He consulted the independent adviser, who advised that on this occasion further investigation was not necessary, and the Prime Minister accepted that advice. As I said before, we need to be very careful to ensure that the Prime Minister has ultimate responsibility for the Ministerial Code. He reissued it in December when he came to power and he has made it clear that it is important that it is followed.

[Baroness Donaghy (Lab)]

Perhaps I can just ask for clarification from the noble Baroness. There was some discussion in 2018 about whether the Ministerial Code mandated Ministers to behave in a certain way. This related to compliance with international law. The noble Baroness will remember a certain Mr Brandon Lewis, who said in the House of Commons that he intended to break international law

“in a very specific and limited way”.—[Official Report, Commons, 8/9/20; col. 509.]

That led to the resignation of a top civil servant and of the noble and learned Lord, Lord Keen of Elie. However, it did not lead to the resignation of the then Attorney-General, who is the subject of this particular complaint. The young lady is not fit for high office in any case, but surely if the Court of Appeal says that the Ministerial Code does mandate compliance, how on earth can the Government justify any variation?

[Baroness Neville-Rolfe (Con)]

I was on the Back Benches when this important situation occurred in 2018, but I would say that the Ministerial Code is a matter for the Prime Minister and the Prime Minister’s judgment, as the noble Baroness said. I think she was trying to make a point about the current Home Secretary. However, I would say that we should allow the current Home Secretary to get on with her job. The distraction of the last week has been considerable. She is trying to do the right thing in a whole series of areas, from public order to immigration. She has apologised, expressed her regret on the matter of the speed awareness course and paid the fine for speeding. Some feel that that issue has been conflated and is a bit of a distraction. She needs to be given the opportunity to get on. The Prime Minister has looked into the matter and she has written at great length to explain the exact circumstances of it. You always end up looking at an individual case, as the noble Baroness did, but I am clear that this is the right approach.

Student Visas

Thursday 25th May 2023 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Wednesday 24 May.

“Net migration is too high, and the Government are committed to bringing it down to sustainable levels. The most recent official statistics estimated net migration in the year to June 2022 at 504,000. This is partly due to temporary and exceptional factors such as the UK’s Ukraine and Hong Kong schemes. Last year, more than 200,000 Ukrainians and 150,000 Hong Kong British national overseas citizens made use of the routes to life or time in the United Kingdom. Those schemes command broad support from the British public, and we were right to introduce them.

The Government introduced a points-based system in 2020 to regain control of our borders post Brexit. We now need to decide who comes to the UK and to operate a system that can flex to the changing needs of the labour market, such as the skills needs of the NHS. However, immigration is dynamic, and we must adapt to take account of changing behaviours and if there is evidence of abuse. The number of dependants arriving alongside international students has risen more than eightfold since 2019, from 16,000 in the year to December 2019 to 136,000 in the year ending December 2022. Dependants of students make a more limited contribution to the economy than students or those coming under the skilled worker route but, more fundamentally, our system was not designed for such large numbers of people coming here in this manner.

Yesterday, we introduced a package of measures to help deliver our goal of reducing net migration. The package includes removing the right for international students to bring dependants unless they are on research postgraduate courses and removing the ability of international students to switch out of the student route into work routes before their studies have been completed. This is the right and fair thing to do. It ensures that we protect our public services and housing supply against undue pressure and deliver on the promises we have made to the public to reduce net migration.

Our education institutions are world-renowned, and for good reason, and the Government remain committed to the commitments in the international education strategy, including the goal of 600,000 international students coming to the United Kingdom each year. But universities should be in the education business, not the immigration business. We are taking concerted action to deliver a fair and effective immigration system that benefits our citizens, our businesses and our economy. We are determined to get this right because it is demonstrably in the national interest.”

16:20

[Lord Coaker (Lab)]

My Lords, the contribution of international students to our universities and, indeed, our communities, is immense and a great asset to our country. Since 2018, there has been a tenfold increase in the number of dependants joining students in the UK, so we have not opposed the changes the Government propose. However, as usual with the Government, there is no impact assessment and no detail—just vague assertion. What assessment have the Government made of the number of people this change will affect in terms of both students and dependants, and what do the Government believe will be the actual impact of these rule revisions on the numbers?

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

I thank the noble Lord for that question. The numbers are these. In March 2023, 477,931 sponsored study visas were granted to main applicants, which was 22% more than in March 2022. In the year ending March 2023, almost one-quarter, 24%, of all sponsored study-related visas granted were to dependants of students—149,400—compared with 15% in the year ending March 2022. Our indication is that 88% of those dependant visas were to those undertaking taught postgraduate courses, so the rule changes will have the effect of greatly reducing the availability of the dependency visas to those who might otherwise have used them, and therefore reduce the net intake.

[Lord Wallace of Saltaire (LD)]

My Lords, I declare an interest as someone who used to run the research side of the international relations department at the LSE. We had well over 50 research students while I was there. To my knowledge, all but one returned to their country of origin, or went elsewhere, after completion of their studies, and the one who remained, an Indian, is now teaching in a senior position in a British university. Is this a real problem, or is it part of the muddle of our migration statistics? Should we not be separating students who come here for either one or three years as temporary migrants and distinguish them from permanent migrants? The problem of our current migration statistics is that they lump everyone together, which as a result makes the whole problem look worse than it is.

[Lord Murray of Blidworth (Con)]

I am afraid that I must disagree with the noble Lord: it is a real problem, for the reasons I have just read out to the Chamber, with the statistics demonstrating the increase in dependants attending, in particular those from two countries. The numbers are startling and required action to change the rules, and I am very grateful for the support from the Official Opposition in doing that.

[Lord Lancaster of Kimbolton (Con)]

My Lords, may I raise the issue of British Overseas Territory passport holders having to apply for a student visa to come and study here? Not only do they have to apply for a visa but they are not allowed to apply directly; they have to apply via a high commission in a third-party jurisdiction, which is bonkers. Can we not allow them to come here directly without applying for a visa? They are British citizens after all. At the very least, if the Government will not change their policy, please may they apply directly from their own homes in the British Overseas Territory?

[Lord Murray of Blidworth (Con)]

The noble Lord raises an issue with which I am familiar and there is much to commend in what he says. Certainly, it is something that I will look into.

[Baroness Blackstone (Lab)]

My Lords, I do not think the Minister answered the second part of the question asked by the noble Lord on the Liberal Democrat Benches. Why are we continuing to define international students as immigrants when they are clearly not in that category? Is he aware that nearly all OECD countries that have international students in considerable numbers do not define them as immigrants or migrants? They define them in a special category as overseas students. Why do we not move to doing that?

[Lord Murray of Blidworth (Con)]

It is clear that the students who have these visas are entitled to work for 20 hours a week, the dependants of students are entitled to work in an unrestricted way and they are obviously users of services provided by the state. For all those reasons, it makes sense that they be included in the net migration figures.

[Lord Bilimoria (CB)]

My Lords, I speak as co-chair of the All-Party Parliamentary Group on International Students and the president of UKCISA. Is the Minister aware that we are in a global race for international students? We are against Australia, the United States of America and Canada, in particular, and those countries offer far better postgraduate work opportunities than we do. We offer two years; Australia offers four, five and six years. Why do we keep including international students in our net migration figures? It is wrong and fooling the public. The USA and Australia treat them as temporary migrants, which is what they are. If you exclude international students from the net migration figures, maybe the Government will hit the targets they have wanted to hit for so many years.

[Lord Murray of Blidworth (Con)]

I refer the noble Lord to the answer I gave some moments ago. It is worth saying, in relation to the first part of his question, that these changes will ensure that the UK’s higher education establishments are focused on recruiting students based on economic value and not on dependants, whose value in terms of student fees and wages is minimal. We have been successful in delivering our international educational goal of hosting up to 600,000 students per year by 2030 almost a decade earlier than planned and expect universities to be able to adapt to reduce dependant numbers.

[Lord Purvis of Tweed (LD)]

Will the Minister answer my noble friend’s question about the two countries? Also, the current rules, which the Government are going to end, supported by the Labour Party, state:

“If you have a child while you’re in the UK, they do not automatically become a British citizen. You must apply for your child’s dependant visa”.


Can the Minister please reassure me that, under the Government’s plans, babies are not going to be separated from their parents?

[Lord Murray of Blidworth (Con)]

The two countries that send the most students with dependants are Nigeria and India. Our points-based immigration system prioritises skills and talent over where a person comes from, in any event. We consider any impact of our changes proportionate in achieving the overall aim of reducing net migration and allowing dependants only for a specific cohort of students with the types of skills the UK is specifically seeking to attract to assist economic growth. In answer to the second part of the noble Lord’s question, on whether one would separate a mother from a child, obviously every case is fact-specific but the principle remains that if you apply for a student visa for a course other than a research graduate study course, you are not entitled to bring a dependant.

[Baroness Morris of Yardley (Lab)]

My Lords, can the Minister just be clear? He talked with some pride about the Government’s international student strategy. If the outcome of this policy is fewer overseas students coming here to study at master’s level, will he consider that the policy has been a success or a failure?

[Lord Murray of Blidworth (Con)]

Clearly, the purpose of the policy is to bring down net migration.

[The Earl of Clancarty (CB)]

My Lords, can the Minister say when this policy is going to start? Can he promise that it will not affect students who have already had offers or are in the process of applying?

[Lord Murray of Blidworth (Con)]

Certainly—it will start in January 2024.

[Baroness Lawlor (Con)]

My Lords, will the Government consider the overall need to have a much wider debate about the benefits of overseas students to this country? As far as I know from this morning’s figures, up to 480,000 came, together with 136,000 dependants. Although there may be an overall benefit in economic gain and plugging the resources of cash-strapped universities, there are other problems. They include not only having to pay costs towards healthcare and housing—or taking up healthcare, housing and education where there are dependants—but costs to the universities themselves. Following what the noble Lord, Lord Wallace, said, many universities are now tailoring courses to the needs of overseas students. A wider debate will be needed in the education department about whether this is the right thing for our UK universities.

[Lord Murray of Blidworth (Con)]

I thank my noble friend for that question. She is absolutely right that it is a balanced question; that is why this package of measures is targeted to achieve the objective of reducing migration. In addition to the proposal to remove the entitlement to bring dependants unless you are on a postgraduate research programme, the other aspects will, I hope, address the matters raised by my noble friend. In particular, they are: removing a student’s right to switch into a work visa route before studies are complete; reviewing the maintenance requirements for people applying for visas; clamping down on unscrupulous education agents; and improving communications about visa rules to universities and international students, along with improved and more targeted enforcement activity by the Home Office.

Net Migration Figures

Thursday 25th May 2023 Lords Chamber

Commons Urgent Question

16:32

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, I shall now repeat an Answer given to an Urgent Question in another place. The Answer is as follows:

“Net migration to the UK is far too high. That was already clear from the previous set of official data. The ONS has today amended its previous published estimate of net migration for the year ending June 2022 to 606,000. The statistics published today show that net migration has flatlined since then. In the year ending December 2022, they show that net migration remains at an estimated 606,000. These particularly high figures are partly due to temporary and exceptional factors, such as the UK’s Ukraine and Hong Kong BNO schemes. Last year, 200,000 Ukrainians and 150,000 Hong Kong British overseas nationals made use of routes to life or time in the United Kingdom. Those schemes command broad support from the British public, and we were right to introduce them.

This Government remain committed to reducing overall net migration to sustainable levels. That is a solemn promise we made to the British public in our manifesto, and we are unwavering in our determination to deliver it. This week, we announced steps to tackle the substantial rise in the number of student dependants coming to the UK. The package of measures will ensure that we can reduce migration while continuing to benefit from the skills and resources our economy needs, because universities should be in the education business, not the immigration business. We expect this package to have a tangible impact on net migration. Taken together with the easing of temporary factors, such as our exceptional humanitarian offers, we expect net migration to fall to pre-pandemic levels in the medium term.

The public rightly expect us to control our borders, whether that is stopping the boats and addressing illegal migration or ensuring that levels of legal migration do not place undue pressure on public services, housing supply or integration. The Government are taking decisive action on both counts. Under the points-based system that we introduced post Brexit, we can control immigration; we must and we will.”

[Lord Coaker (Lab)]

My Lords, net migration figures are at a record high, despite promises in every Conservative manifesto since 2010 to reduce these figures, with the 2019 manifesto pledging that overall numbers would come down. Despite the Minister’s Statement, it has clearly gone wrong and is not working. Would it not be a start to tackle the doubling of work visas? Would it not be a start to end the unfair wage discount in the immigration system, which is undercutting UK wages and exploiting migrant workers? Why allow a civil engineer from Spain, for example, to be paid a 20% lower salary than the going rate for a British civil engineer? Why do the Government not tackle migration by barring employers and companies from recruiting foreign workers unless they are paid the going rate? Would that not be a start to tackling the migration problem?

[Lord Murray of Blidworth (Con)]

Clearly, the increase in net migration has been the result of global events, such as the world recovery from the Covid-19 pandemic, and international events, as I outlined in the Statement, including the policy changes introduced as part of the new immigration system at the end of EU freedom of movement. All have had an impact on migration. The Migration Advisory Committee agrees that the discount available to employers employing foreign workers under the skilled worker route is a sensible solution for occupations where there are shortages, at least in the short term. However, no occupation should be on the shortage occupation list for ever. Sectors must therefore present a realistic strategy for ending their reliance on migration before such jobs can be added to the shortage occupation list, and present compelling evidence that they should remain.

[Lord Wallace of Saltaire (LD)]

My Lords, there is not time now, but perhaps the Government could initiate an informed cross-party debate on the long-term issues involved in migration. The pull factors in migration are that we have not been investing enough in education and training, and that companies have found it easier to recruit staff from abroad than to spend money training their own in too many instances. Also, in public health we need to reduce the number of people who are long-term unwell. There are also the push factors—climate change, conflict in other countries and, potentially, expulsion. The Turkish Government are talking about expelling several million refugees. The UK Government might wish to emphasise that we cannot manage migration without active international co-operation with our neighbours and others, which is almost entirely outside the current debate. Can the Government not attempt a constructive effort, to which I am sure other parties would respond?

[Lord Murray of Blidworth (Con)]

I am not quite sure what the noble Lord suggests would result from such a negotiation. Of course it is right that the Government discuss international migration issues on a regular basis. We saw that at the recent meeting of the Council of Europe. We recognise that no single measure will control immigration. As the impacts of temporary pressures become clearer, we will keep matters under review. The Government will continue to strike the balance between reducing overall net migration and ensuring that businesses have the skills that they need. We continue to support economic growth.

[Baroness McIntosh of Pickering (Con)]

My Lords, does my noble friend accept that a promise was made at the time of the referendum campaign that immigration would be reduced? Looking ahead to the forecast for this current year, mindful that he said in his reply that net figures would reduce, will the illegal migration forecast for 2023 be higher or lower than the figures that he has given us today?

[Lord Murray of Blidworth (Con)]

I am unwilling to engage in conjecture as to what the figures will be for the coming year, but it is certainly clear that the measures we have announced on the student route reform, which the House heard about on the previous Question, will have a considerable effect in reducing the levels of migration in those categories for the year commencing January 2024. We will have to see what the statistics reveal in due course.

[Lord Bilimoria (CB)]

My Lords, the Prime Minister has five priorities. One of them is to stop illegal migration through the boats crossing the channel. Everyone agrees that we must do everything we can to stop them. Another of his priorities is to grow the economy. If the Prime Minister wants this, why are we restricting businesses from getting the labour force they need if they cannot get it domestically? I just had a meeting with leading hoteliers. One of them is shortly opening one of the best hotels in London and is targeting under 100% occupancy: he cannot recruit the people he needs. We need to activate the shortage occupation list. That is the promise of the points-based system. That will help. If we exclude international students from net migration figures, we will not scare people with these high figures that are not a true representation of migration into this country.

[Lord Murray of Blidworth (Con)]

The noble Lord neatly identifies the balancing act that needs to be performed by the Government on net migration. Clearly the Government cannot permit circumstances to arise where employers utilise foreign labour over domestic labour for the pursuit of greater profit. Of course, the countervailing factor is the availability of labour. The Government are obviously aware of these issues and make their decisions accordingly.

[Lord Dubs (Lab)]

My Lords, will the Minister confirm that, of today’s high figure, asylum seekers account for approximately 8%, and that, even if the Bill we discussed yesterday and will discuss the week after next were to reduce that figure to zero, it would make virtually no difference to the net migration figures?

[Lord Murray of Blidworth (Con)]

The whole point of the Illegal Migration Bill is to prevent dangerous and illegal journeys across the channel and by other routes. It is addressing a different, specific issue, obviously with the added benefit that eliminating illegal migration would go towards the reduction of the net migration figure. But it is not suggested that the Bill is the sole answer to the problems arising from excessive net migration.

[Lord Jackson of Peterborough (Con)]

My Lords, I do not blame my noble friend or the Home Secretary: since the 2004 free movement directive, no Government have been honest about immigration with the British people, including my own party when in government. “Take back control” does not mean that, among other things, we should have spent £1.3 billion so far this year on asylum seekers, their accommodation and other illegal migration funding, which is more than we have spent from the levelling-up funds on the north-east, the north-west, and Yorkshire and the Humber.

Amazingly, I find myself in agreement with the Liberal Democrats and Labour Front Bench. I respectfully say to the Minister that the idea put forward about wage differentials by the noble Lord, Lord Coaker, is absolutely right. With respect to the noble Lord, Lord Bilimoria, for too long, business has been addicted to cheap, foreign labour and has failed to properly train and pay our own indigenous workforce. If we are to have an honest debate, he has to concede that.

Finally, I say to the Minister that these figures are a potential existential threat not just to my own party’s electoral prospects but to people’s trust in moderate, mainstream politics. The alternative looks a lot worse unless we solve this problem.

[Lord Murray of Blidworth (Con)]

I agree with some of what my noble friend has said. There is a measure of agreement across the House that the issue of salary discounts is very much in need of consideration. Of course, as the House will be aware, the Migration Advisory Committee is undertaking its review into the shortage occupation list, which I referred to a few answers ago. The Government asked the MAC to consider the 20% salary discount as part of the review when it commissioned it last year. We expect a report in the autumn, after which the Government will respond to any recommendations that it makes.

[Baroness Bennett of Manor Castle (GP)]

My Lords, in the migration figures out this morning, the figures for the asylum backlog—the number of people who have been waiting more than six months for an asylum decision—show that, despite the promise from the Prime Minister to eliminate much of the backlog by the end of this year, the figure has increased by 10,000. There are now more than 128,000 people waiting more than six months for an asylum decision. Would the Minister promise the House that the Prime Minister’s pledge will be met by the end of this year, given that we are now at the end of May? Surely it is time to allow those people to work—indeed, some of them could be working in the hotel to which the noble Lord, Lord Bilimoria, referred.

[Lord Murray of Blidworth (Con)]

As the noble Baroness knows, the Government are taking immediate action to eliminate the backlog of people waiting for initial asylum decisions by the end of 2023. The Home Office has already doubled the number of decision-makers and the number will double again. To further accelerate decision-making, the Home Office is driving productivity improvements by simplifying and modernising the system. We have doubled the number of decision-makers in 2021-22, as I said, and we will continue to do so.

Online Safety Bill

Committee stage
Thursday 25th May 2023 Lords Chamber

Committee (9th Day) (Continued)

16:46

Clause 68: Transparency reports about certain Part 3 services

Amendment 160A

Moved by

[Lord Knight of Weymouth]

160A: Clause 68, page 62, line 23, leave out paragraph (d) and insert—
“(d) be made publicly available, subject to appropriate redactions, on the date specified in the notice.”
Member’s explanatory statement
This amendment makes clear that Ofcom guidance under Clause 66 must outline how a platform’s terms of service would be considered “adequate and appropriate”, as required under a new Clause in the name of Lord Stevenson of Balmacara.

[Lord Knight of Weymouth (Lab)]

My Lords, as we have said many times, this is a complex Bill. As we reflect on the priorities for Report, we can be more relaxed about some of the specifics on how Ofcom may operate, thereby giving it more flexibility—the flexibility it needs to be agile in the online world—if we as a Parliament trust Ofcom. Building trust, I believe, is a triangulation. First, there is independence from government—as discussed in respect of Secretary of State powers. Secondly, we need proper scrutiny by Parliament. Earlier today I talked about my desire for there to be proper post-legislative scrutiny and a permanent Joint Committee to do that. The third leg of the stool is the transparency to assist that scrutiny.

Clause 68 contains the provisions which would require category 1, 2A and 2B services to produce an annual transparency report containing information described by Ofcom in a notice given to the service. Under these provisions, Ofcom would be able to require these services to report on, among other things: information about the incidence of illegal content and content that is harmful to children; how many users are assumed to have encountered this content by means of the service; the steps and processes for users to report this content; and the steps and processes which a provider uses for dealing with this content.

We welcome the introduction of transparency reporting in relation to illegal content and content that is harmful to children. We agree with the Government that effective transparency reporting plays a crucial role in building Ofcom’s understanding of online harms and empowering users to make a more informed choice about the services they use.

However, despite the inclusion of transparency reporting in the Bill representing a step in the right direction, we consider that these requirements could and should be strengthened to do the trust building we think is important. First, the Bill should make clear that, subject to appropriate redactions, companies will be required to make their transparency reports publicly available—to make them transparent—hence Amendment 160A.

Although it is not clear from the Bill whether companies will be required to make these reports publicly available, we consider that, in most instances, such a requirement would be appropriate. As noted, one of the stated purposes of transparency reporting is that it would enable service users to make more informed choices about their own and their children’s internet use—but they can only do so if the reports are published. Moreover, in so far as transparency reporting would facilitate public accountability, it could also act as a powerful incentive for service providers to do more to protect their users.

We also recognise that requiring companies to publish the incidences of CSEA content on their platforms, for instance, may have the effect of encouraging individuals seeking such material towards platforms on which there are high incidences of that content—that must be avoided. I recognise that simply having a high incidence of CSEA content on a platform does not necessarily mean that that platform is problematic; it could just mean that it is better at reporting it. So, as ever with the Bill, there is a balance to be struck.

Therefore, we consider that the Bill should make it explicit that, once provided to Ofcom, transparency reports are to be made publicly available, subject to redactions. To support this, Ofcom should be required to produce guidance on the publication of transparency reports and the redactions that companies should make before making reports publicly accessible. Ofcom should also retain the power to stop a company from publishing a particular transparency report if it considers that the risk of directing individuals to illegal materials outweighs the benefit of making a report public—hence Amendments 160B and 181A.

Amendments 165 and 229 are in my noble friend Lord Stevenson’s name. Amendment 165 would broaden the transparency requirements around user-to-user services’ terms of service, ensuring that information can be sought on the scope of these terms, not just their application. As I understand it, scope is important to understand, as it is significant in informing Ofcom’s regulatory approach. We are trying to guard against minimal terms of service where detail is needed for users and Ofcom.

The proposed clause in Amendment 229 probes how Ofcom will review the effectiveness of the transparency requirements in the Bill. It would require Ofcom to undertake a review of the effectiveness of transparency reports within three years and every five years thereafter, and it would give the Secretary of State powers to implement any recommendations made by the regulator. The Committee should note that we also include a requirement that a Select Committee, charged by the relevant House, must consider and report on the regulations, with an opportunity for Parliament to debate them. So we link the three corners of the triangle rather neatly there.

If we agree that transparency is an important part of building trust in Ofcom in doing this difficult and innovative regulatory job—it is always good to see the noble Lord, Lord Grade, in his place; I know he is looking forward to getting on with this—then this proposed clause is sensible. I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, I am pleased that the noble Lord, Lord Knight of Weymouth, has given us an opportunity to talk about transparency reports with these amendments, which are potentially a helpful addition to the Bill. Transparency is one of the huge benefits that the legislation may bring. One of the concerns that the public have and that politicians have always had with online platforms is that they appear to be a black box—you cannot see what is going on in them.

In the entire edifice that we are constructing in the Online Safety Bill, there are huge opportunities to change that. The platforms will have to do risk assessments —there are measures in the Bill to make sure that information about these is put out—and they will have to take active steps to mitigate any risks they find. Again, we may get directions and guidance from Ofcom that will explain to the public exactly what is expected of them. The final piece of the jigsaw is the transparency reports that show the outcomes—how a platform has performed and what it has done to meet its obligations in dealing with content and behaviour on its services.

For the record, I previously worked for one of the platforms, and I would have said that I was on the pro-transparency wing of the transparency party inside the company. I believed that it was in the platform’s interest: if you do not tell people what you are doing, they will make things up about you, and what they make up will generally be worse than what you are actually doing. So there are huge advantages to the platforms from being transparent.

The noble Lord, Lord Knight, has picked up on some important points in his Amendment 160B, which talks about making sure that the transparency report is not counterproductive by giving the bad guys information that they could use to ill effect. That is a valid point; it is often debated inside the platforms. Sometimes, I argued furiously with my colleagues in the platforms about why we should disclose information. They would ask, “What about the bad guys?” Sometimes I challenged that, but other times it would have been a genuine and accurate concern. The noble Lord mentioned things such as child sexual abuse material, and we have to recognise that the bad guys are incredibly devious and creative, and if you show them anything that they can use against you to get around your systems, they will try to do that. That is a genuine and valid concern.

The sort of thing that you might put into a transparency report is, for example, whether you have banned particular organisations. I would be in favour of indicating to the public that an organisation is banned, but you can see that the potential impact of that is that all the people you are concerned about would create another organisation with a different name and then get back on to your platform. We need to be alive to those kinds of concerns.

It is also relevant to Amendment 165 and the terms of service that the more granular and detailed your terms of service are, the better they are for public information, but there are opportunities to get around them. Again, we would have that argument internally. I would say, “If we are prohibiting specific hate speech terms, tell people that, and then they won’t use them”. For me, that would be a success, as they are not using those hate speech terms anymore, but, of course, they may then find alternative hate speech terms that they can use instead. You are facing that battle all the time. That is a genuine concern that I hope we will be able to debate. I hope that Ofcom will be able to mitigate that risk by discussing with platforms what these transparency reports should look like. In a sense, we are doing a risk assessment of the transparency report process.

Amendment 229 on effectiveness is really interesting. My experience was that if you did not have a transparency report, you were under huge pressure to produce one and that once you produced one, nobody was interested. For fear of embarrassing anyone in the Committee, I would be curious to know how many noble Lords participating in this debate have read the transparency reports already produced by Meta Platforms, Google and others. If they have not read them, they should not be embarrassed, because my experience was that I would talk to regulators and politicians about something they had asked me to come in to talk about, such as hate speech or child sexual abuse material, and I learned to print off the transparency report. I would go in and say, “Well, you know what we are doing; it’s in our transparency report”. They would ask, “What transparency report?”, and I would have to show them. So, having produced a transparency report, every time we published it, we would expect there to be public interest, but little use was made of it. That is not a reason not to do them—as I said, I am very much in favour of doing them—but, on their own, they may not be effective, and Amendment 229 touches on that.

I was trying to think of a collective noun for transparency reports and, seeing as they shed light, I think it may be a “chandelier”. Where we may get the real benefit is if Ofcom can produce a chandelier of transparency reports, taking all the information it gets from the different platforms, processing it and selecting the most relevant information—the reports are often too long for people to work their way through—so that it can enable comparisons. That is really good and it is quite good for the industry that people know that platform A did this, platform B did that, and platform C did something else. They will take note of that, compare with each other and want to get into the best category. It is also critical that Ofcom puts this into user-friendly language, and Ofcom has quite a good record of producing intelligible reports. In the context of Amendment 229, a review process is good. One of the things that might come out of that, thinking ahead, would be Ofcom’s role in producing meta transparency reports, the chandelier that will shed light on what the whole sector is doing.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, for once I want to be really positive. I am actually very positive about this whole group of amendments because more transparency is essential in what we are discussing. I especially like Amendment 165 from the noble Lord, Lord Stevenson of Balmacara, because it is around terms of service for user-to-user services and ensures that information can be sought on the scope as well as the application. This is important because so much has been put on user-to-user services as well as on terms of service. You need to know what is going on.

I want particularly to compliment Amendment 229 that says that transparency reports should be

“of sufficient quality to enable service users and researchers to make informed judgements”,

et cetera. That is a very elegant way in which to say that they should not be gobbledegook. If we are going to have them, they should be clear and of a quality that we can read. Obviously, we do not want them to be unreadable and full of jargon and legalistic language. I am hoping that that is the requirement.

17:00

I am positive because I have been worried that so much depends on terms of service and how that can lead to the overremoval of content and, as we discussed the other day, there is no individual complaints mechanism in terms of Ofcom. So I am grasping for ways in which users can have a right of redress. Understanding why something has been taken down is very important. As the noble Lord, Lord Allan of Hallam, said, so much is hidden from users. People will constantly say, “My material has been deboosted”, and it might well have been. They will say things such as, “The algorithms are hiding content, even if they are not removing it”. I have noticed that people can get very paranoid, and it can fuel conspiracy theories because you get people saying, “Nobody has retweeted my tweet. This is a deboosting algorithm”, when actually they have not retweeted it because it was boring. If you could see a bit more clearly what the policies were instead of feeling that they are hidden from your view, it would lessen the paranoia and that kind of accusation.

My only caveat to this proposal relates to what the noble Lord, Lord Allan, said about the bad guys being banned and that, if they are banned, they might emerge somewhere else. We also need to recognise that sometimes people who are called the bad guys can be banned, and they are not the bad guys. They need to be able to say, “We’re not the bad guys”. That is why the more detail, the better. The only other caveat is that I do not want to be in a situation where we demand endless regulatory complexity and reports and impositions make life impossible for the services in terms of red tape and paperwork. That is my only caveat. Generally speaking, however, I am very positive about these amendments, and I hope that by Report they become, one way or another, part of the Bill.

[Lord Clement-Jones (LD)]

My Lords, I strongly support the amendment in the names of the noble Lords, Lord Knight and Lord Stevenson, as well as my noble friend Lady Featherstone. The essence of the message from the noble Lord, Lord Knight, about the need for trust and the fact that you can gain trust through greater transparency is fundamental to this group.

The Joint Committee’s report is now a historical document. It is partly the passage of time, but it was an extraordinary way in which to work through some of the issues, as we did. We were very impacted by the evidence given by Frances Haugen, and the fact that certain things came to light only as a result of her sharing information with the Securities and Exchange Commission. We said at the time that:

“Lack of transparency of service providers also means that people do not have insight into the prevalence and nature of activity that creates a risk of harm on the services that they use”.


That is very much the sense that the noble Lord, Lord Stevenson, is trying to get to by adding scope as well.

We were very clear about our intentions at the time. The Government accepted the recommendation that we made and said that they agreed with the committee that

“services with transparency reporting requirements should be required to publish their transparency reports in full, and in an accessible and public place”.

So what we are really trying to do is to get the Government to agree to what they have already agreed to, which we would have thought would be a relatively straightforward process.

There are some other useful aspects, such as the review of effectiveness of the transparency requirements. I very much appreciate what my noble friend just said about not reading transparency reports. I read the oversight reports but not necessarily the transparency reports. I am not sure that Frances Haugen was a great advert for transparency reports at the time, but that is a mere aside in the circumstances.

I commend my noble friend Lady Featherstone’s Amendment 171, which is very consistent with what we were trying to achieve with the code of practice about violence against women and girls. That would fit very easily within that. One of the key points that my noble friend Lord Allan made is that this is for the benefit of the platforms as well. It is not purely for the users. Of course it is useful for the users, but not exclusively, and this could be a way of platforms engaging with the users more clearly, inserting more fresh air into this. In these circumstances it is pretty conclusive that the Government should adhere to what they agreed to in their response to the Joint Committee’s report.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

As ever, I thank all noble Lords who have spoken. I absolutely take, accept and embrace the point that transparency is wholly critical to what we are trying to achieve with the Bill. Indeed, the chandelier of transparency reports should be our shared aim—a greenhouse maybe. I am grateful for everyone’s contributions to the debate. I agree entirely with the views expressed. Transparency is vital in holding companies to account for keeping their users safe online. As has been pointed out, it is also to the benefit of the platforms themselves. Confident as I am that we share the same objectives, I would like to try to reassure noble Lords on a number of issues that have been raised.

Amendments 160A, 160B and 181A in the name of the noble Lord, Lord Knight of Weymouth, seek to require providers to make their transparency reports publicly available, subject to appropriate redactions, and to allow Ofcom to prevent their publication where it deems that the risks posed by drawing attention to illegal content outweigh the benefit to the public of the transparency report. Let me reassure the noble Lord that the framework, we strongly believe, already achieves the aim of those amendments. As set out in Clause 68, Ofcom will specify a range of requirements in relation to transparency reporting in a notice to categories 1, 2A and 2B. This will include the kind of information that is required in the transparency report and the manner in which it should be published. Given the requirement to publish the information, this already achieves the intention of Amendment 160A.

The specific information requested for inclusion within the transparency report will be determined by Ofcom. Therefore, the regulator will be able to ensure that the information requested is appropriate for publication. Ofcom will take into account any risks arising from making the information public before issuing the transparency notice. Ofcom will have separate information-gathering powers, which will enable the regulator to access information that is not suitable to be published in the public domain. This achieves the intention of Amendment 160B. There is also a risk of reducing trust in transparency reporting if there is a mechanism for Ofcom to prevent providers publishing their transparency reports.

Amendment 181A would require Ofcom to issue guidance on what information should be redacted and how this should be done. However, Ofcom is already required to produce guidance about transparency reports, which may include guidance about what information should be redacted and how to do this. It is important to provide the regulator with the flexibility to develop appropriate guidance.

Amendment 165 seeks to expand the information within the transparency reporting requirements to cover the scope of the terms of service set out by user-to-user providers. I very much agree with the noble Lord that it is important that Ofcom can request information about the scope of terms of service, as well as about their application. Our view is that the Bill already achieves this. Schedule 8 sets out the high-level matters about which information may be required. This includes information about how platforms are complying with their duties. The Bill will place duties on user-to-user providers to ensure that any required terms of service are clear and accessible. This will require platforms to set out what the terms of service cover—or, in other words, the scope. While I hope that this provides reassurance on the matter, if there are still concerns in spite of what I have said, I am very happy to look at this. Any opportunity to strengthen the Bill through that kind of clarity is worth looking at.

[Lord Stevenson of Balmacara (Lab)]

I welcome the Minister’s comments. I am interrupting just because this is my amendment rather than my noble friend Lord Knight’s. The word “scope” caused us some disquiet on this Bench when we were trying to work out what we meant by it. It has been fleshed out in slightly different ways around the Chamber, to advantage.

I go back to the original intention—I am sorry for the extensive introduction, but it is to make sure that I focus the question correctly—which was to make sure that we are not looking historically at the terms of reference that have been issued, and whether they are working in a transparency mode, but addressing the question of what is missing or is perhaps not addressed properly. Does the Minister agree that that would be taken in by the word “scope”?

[Viscount Camrose (Con)]

I think I probably would agree, but I would welcome a chance to discuss it further.

Finally, Amendment 229 intends to probe how Ofcom will review the effectiveness of transparency requirements in the Bill. It would require Ofcom to produce reports reviewing the effectiveness of transparency reports and would give the Secretary of State powers to implement any recommendations made by the regulator. While I of course agree with the sentiment of this amendment, as I have outlined, the transparency reporting power is designed to ensure that Ofcom can continuously review the effectiveness of transparency reports and make adjustments as necessary. This is why the Bill requires Ofcom to set out in annual transparency notices what each provider should include in its reports and the format and manner in which it should be presented, rather than putting prescriptive or static requirements in the Bill. That means that Ofcom will be able to learn, year on year, what will be most effective.

Under Clause 145, Ofcom is required to produce its own annual transparency report, which must include a summary of conclusions drawn from providers’ transparency reports, along with the regulator’s view on industry best practice and other appropriate information—I hope and think that goes to some of the points raised by the noble Lord, Lord Allan of Hallam.

[Lord Knight of Weymouth (Lab)]

My Lords, just before the Minister moves on—and possibly to save me finding and reading it—can he let us know whether those annual reports by Ofcom will be laid before Parliament and whether Parliament will have a chance to debate them?

17:15

[Viscount Camrose (Con)]

I believe so, but I will have to confirm that in writing. I am sorry not to be able to give a rapid answer.

Clause 159 requires the Secretary of State to review in total the operation of the regulatory framework to ensure it is effective. In that review, Ofcom will be a statutory consultee. The review will specifically require an assessment of the effectiveness of the regulatory framework in ensuring that the systems and processes used by services provide transparency and accountability to users.

The Bill will create what we are all after, which is a new culture of transparency and accountability in the tech sector. For the reasons I have laid out, we are confident that the existing provisions are sufficiently broad and robust to provide that. As such, I hope the noble Lord feels sufficiently reassured to withdraw the amendment.

[Lord Knight of Weymouth (Lab)]

My Lords, that was a good, quick debate and an opportunity for the noble Viscount to put some things on the record, and explain some others, which is helpful. It is always good to get endorsement around what we are doing from both the noble Lord, Lord Allan, and the noble Baroness, Lady Fox. That is a great spread of opinion. I loved the sense of the challenge as to whether anyone ever reads the transparency reports whenever they are published; I imagine AI will be reading and summarising them, and making sure they are not written as gobbledygook.

On the basis of what we have heard and if we can get some reassurance that strong transparency is accompanied by strong parliamentary scrutiny, then I am happy to withdraw the amendment.

Amendment 160A withdrawn.

Amendment 160B not moved.

Clause 68 agreed.

Amendment 161 not moved.

Schedule 8: Transparency reports by providers of Category 1 services, Category 2A services and Category 2B services

Amendments 162 to 181 not moved.

Schedule 8 agreed.

Clause 69: OFCOM’s guidance about transparency reports

Amendment 181A not moved.

Clause 69 agreed.

Amendment 182 not moved.

Clause 70: “Pornographic content”, “provider pornographic content”, “regulated provider pornographic content”

Amendments 183 and 183ZA not moved.

Clause 70 agreed.

Clause 71: Scope of duties about regulated provider pornographic content

Amendment 183A not moved.

Clause 71 agreed.

Clause 72: Duties about regulated provider pornographic content

Amendments 183B to 185 not moved.

Clause 72 agreed.

Clause 73 agreed.

Amendment 185A

Moved by

[Lord Bassam of Brighton]

185A: After Clause 73, insert the following new Clause—
“Duties on providers of online marketplace services
(1) This section sets out duties that apply in relation to providers of online marketplace services.(2) A duty to put in place proportionate systems and processes to prevent child users from encountering listings of knives for sale on the platform, including (where appropriate) excluding relevant listings from advertising or other algorithms.(3) A duty to put in place proportionate systems and processes to identify and remove listings of knives or similar products which are marketed in a manner which would reasonably appear to a user to—(a) promote violence or threatening behaviour,(b) encourage self-harm, or(c) look menacing. (4) A duty to put in place proportionate systems and processes to ensure, beyond reasonable doubt, that any purchaser of a knife meets or exceeds the minimum legal age for purchasing such items.(5) For the purposes of this section, the online marketplace may have regard to different age restrictions in different parts of the United Kingdom.(6) For the purposes of subsection (3)(c), a knife may look menacing if it is, or appears to be similar to, a “zombie knife”, “cyclone knife” or machete.(7) In this section, “online marketplace service” means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader, which allows consumers to conclude distance contracts with other traders or consumers.”Member’s explanatory statement
This new Clause would introduce duties on online marketplaces to limit child access to listings of knives, and to take proactive steps to identify and remove any listings of knives or similar products which refer to violence or self-harm. While online sales of knives are not illegal, under-18s (under-16s in Scotland) should not be able to purchase them.

[Lord Bassam of Brighton (Lab)]

My Lords, I have Amendments 185A and 268AA in this group. They are on different subjects, but I will deal with them in the same contribution.

Amendment 185A is a new clause that would introduce duties on online marketplaces to limit child access to listings of knives and take proactive steps to identify and remove any listings of knives or products such as ornamental zombie knives that are suggestive of acts of violence or self-harm. I am sure the Minister will be familiar with the Ronan Kanda case that has given rise to our bringing this amendment forward. The case is particularly horrible; as I understand it, sentencing is still outstanding. Two young boys bought ninja blades and machetes online and ultimately killed another younger boy with them. It has been widely featured in news outlets and is particularly distressing. We have had some debate on this in another place.

As I understand it, the Government have announced a consultation on this, among other things, looking at banning the sale of machetes and knives that appear to have no practical use other than being designed to look menacing or suitable for combat. We support the consultation and the steps set out in it, but the amendment provides a chance to probe the extent to which this Bill will apply to the dark web, where a lot of these products are available for purchase. The explanatory statement contains a reference to this, so I hope the Minister is briefed on the point. It would be very helpful to know exactly what the Government’s intention is on this, because we clearly need to look at the sites and try to regulate them much better than they are currently regulated online. I am especially concerned about the dark web.

The second amendment relates to racist abuse; I have brought the subject before the House before, but this is rather different. It is a bit of a carbon copy of Amendment 271, which noble Lords have already debated. It is there for probing purposes, designed to tease out exactly how the Government see public figures, particularly sports stars such as Marcus Rashford and Bukayo Saka, and how they think they are supposed to deal with the torrents of racist abuse that they receive. I know that there have been convictions for racist content online, but most of the abuse goes unpunished. It is not 100% clear that much of it will be identified and removed under the priority offence provisions. For instance, does posting banana emojis in response to a black footballer’s Instagram post constitute an offence, or is it just a horrible thing that people do? We need to understand better how the law will act in this field.

There has been a lot of debate about this issue, it is a very sensitive matter and we need to get to the bottom of it. A year and a half ago, the Government responded to my amendment bringing online racist abuse into the scope of what is dealt with as an offence, which we very much welcomed, but we need to understand better how these provisions will work. I look forward to the Minister setting that out in his response. I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, I rise to speak primarily to the amendments in the name of my noble friend Lord Clement-Jones, but I will also touch on Amendment 268AA at the same time. The amendments that I am particularly interested in are Amendments 200 and 201 on regulatory co-operation. I strongly support the need for this, and I will illustrate that with some concrete examples of why this is essential to bring to life the kinds of challenges that need to be dealt with.

The first example relates to trying to deal with the sexual grooming of children online, where platforms are able to develop techniques to do that. They can do that by analysing the behaviour of users and trying to detect whether older users are consistently trying to approach younger users, and the kind of content of the messages they may be sending to them where that is visible. These are clearly highly intrusive techniques. If a platform is subject to the general data protection regulation, or the UK version of that, it needs to be very mindful of privacy rights. We clearly have, there, two potentially interested bodies in the UK environment. We have the child protection agencies, and we will have, in future, Ofcom seeking to ensure that the platform has met its duty of care, and we will have the Information Commission’s Office.

A platform, in a sense, can be neutral as to what it is instructed to do by the regulator. Certainly, my experience was that the platforms wanted to do those kinds of activities, but they are neutral in the sense that they will do what they are told is legal. There, you need clarity from the regulators together to say, “Yes, we have looked at this and you are not going to do something on the instruction of the child safety agency and then get criticised, and potentially fined, by the Data Protection Agency for doing the thing you have been instructed to do”—so we need those agencies to work together.

The second example is in the area of co-operation around antiterrorism, another key issue. The platforms have created something called the Global Internet Forum to Counter Terrorism. Within that forum, they share tools and techniques—things such as databases of information about terrorist content and systems that you can use to detect them—and you are encouraged within that platform to share those tools and techniques with smaller platforms and competitors. Clearly, again, there is a very significant set of questions, and if you are in a discussion around that, the lawyers will say, “Have the competition lawyers cleared this?” Again, therefore, something that is in the public interest—that all the platforms should be using similar kinds of technology to detect terrorist content—is something where you need a view not just from the counterterrorism people but also, in our case, from the Competition and Markets Authority. So, again, you need those regulators to work together.

The final example is one which I know is dear to the heart of the noble Baroness, Lady Morgan of Cotes, which is fraudsters, which we have dealt with, where you might have patterns of behaviour where you have information that comes from the telecoms companies regulated by Ofcom, the internet service providers, regulated by Ofcom, and financial institutions, regulated by their own family of regulators—and they may want to share data with each other, which is something that is subject to the Information Commission’s Office again. So, again, if we are going to give platforms instructions, which we rightly do in this legislation, and say, “Look, we want you to get tougher on online fraudsters; we want you to demonstrate a duty of care there”, the platforms will need—certainly those regulators: financial regulators, Ofcom and the Information Commissioner’s Office—to sort those things out.

Having a forum such as the one proposed in Amendment 201, where these really difficult issues can be thrashed out and clear guidance can be given to online services, will be much more efficient than what sometimes happened in the past, where you had the left hand and the right hand of the regulatory world pulling you in different directions. I know that we have the Digital Regulation Cooperation Forum. If we can build on those institutions, it is essential and ideal that they have their input before the guidance is issued, rather than have a platform comply with guidance from regulator A and then get dinged by regulator B for doing the thing that they have been instructed to do.

That leads to the very sensible Amendment 201 on skilled persons. Again, Ofcom is going to be able to call in skilled persons. In an area such as data protection, that might be a data protection lawyer, but, equally, it might be that somebody who works at the Information Commissioner’s Office is actually best placed to give advice. Amendment 200—the first of the two that talks about skilled persons being able to come from regulators—makes sense.

Finally, I will touch on the issues raised in Amendment 268AA—I listened carefully and understand that it is a probing amendment. It raises some quite fundamental questions of principle—I suspect that the noble Baroness, Lady Fox, might want to come in on these—and it has been dealt with in the context of Germany and its network enforcement Act: I know the noble Lord, Lord Parkinson of Whitley Bay, can say that in the original German. That Act went in the same direction, motivated by similar concerns around hate speech.

17:30

This raises some fundamental questions about what we want from privacy law and what we want in terms of criminal prosecutions. There is a spectrum of offences, and for some I think we have accepted that platforms should report; on child sexual abuse material, platforms have a duty to report every incidence to the regulator. When it comes to threats to life, the expectation would be clear, so if you have knowledge—this happens—of an imminent terrorist attack or even of somebody who is about to commit suicide, it is clear that you should go to the police or the relevant authorities with that information. Then you have this broad spectrum of other criminal offences which may be problematic. I do not want to minimise the effect on people of hate speech crimes, but they are of a different order, shall we say, from threat-to-life cases, where I think reporting is broadly supported. We have to make a decision there.

My starting point is to be nervous about platforms acting in that policing capacity for offences that are not at the most extreme end of the spectrum. Individuals who are worried about that activity can go to the police directly themselves and can generally take the content to the police—literally; they can print it off—who can make a judgment about whether to go to the Crown Prosecution Service. I worry about the platforms doing it partly from a constitutional point of view, because I am not sure that I want them acting in that quasi-legal capacity, but also, frankly, from a volume point of view. The risk is that if you put this duty on a platform, because it is really hard to understand what is criminal hate speech and what is merely hateful hate speech, the temptation will be to send everything over. If you do that, first, you have a greater violation of privacy, and secondly, you probably have not helped the police, because they get swamped with reports that they cannot manage.

I hope that is a helpful counterargument to the idea that platforms should automatically report material. However, I recognise that it leaves an open question. When people engage in that kind of behaviour online and it has serious real-world consequences, how do we make sure that they do not feel that it is consequence-free—that they understand that there are consequences? If they have broken the law, they should be prosecuted. There may be something in streamlining the process where a complainant goes to the police and the police are able to access the information they need, having first assessed that it is worth prosecuting and illegal, so that we make that loop work first before we head in the direction of having platforms report content en masse because they believe it may have violated laws where we are not at that most serious end of the spectrum.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, so few of us are involved in this discussion that we are now able to write each other’s speeches. I thank the noble Lord, Lord Allan of Hallam, for articulating some of my concerns, probably more elegantly than I will myself. I will focus on two amendments in this group; in fact, there are lots of interesting things, but I will focus on both the amendments from the noble Lord, Lord Bassam of Brighton.

On the issue of proactive steps to remove listings of knives for young people, I am so sympathetic to this because in a different area of my life I am pretty preoccupied with the problem of knife crime among young people. It really bothers me and I worry about how we tackle it. My concern of course is that the police should be working harder to solve that problem and that we cannot anticipate that the Bill will solve all social problems. There is a danger of removing the focus from law enforcement in a real-world problem, as though removing how you buy the knife is the issue. I am not convinced that that helps us.

I wanted to reflect on the kind of dilemmas I am having around this in relation to the story of Mizzy that is doing the rounds. He is the 18 year-old who has been posting his prank videos on TikTok and has caused quite a stir. People have seen him wandering into strangers’ homes uninvited, asking random people in the street if they want to die, running off with an elderly lady’s dog and making fun of Orthodox Jews—generally speaking, this 18 year-old is obnoxious. His TikTok videos have gone viral; everybody is discussing them.

This cruelty for kicks genre of filming yourself, showing your face full to the camera and so on, is certainly abhorrent but, as with the discussion about knife crime, I have noticed that some people outside this House are attempting to blame the technology for the problem, saying that the videos should have been removed earlier and that it is TikTok’s fault that we have this anti-social behaviour, whereas I think it is a much deeper, broader social problem to do with the erosion of adult authority and the reluctance of grown-ups to intervene clearly when people are behaving badly—that is my thesis. It is undoubtedly a police matter. The police seem to have taken ages to locate Mizzy. They eventually got him and charged him with very low offences, so he was on TV being interviewed the other evening, laughing at how weak the law was. Under the laws he was laughing at, he could freely walk into somebody’s house or be obnoxious and get away with it. He said, “We can do what we want”. That mockery throws up problems, but I do not necessarily think that the Bill is the way to solve it.

That leads me to my concerns about Amendment 268AA, because Mizzy was quoted in the Independent newspaper as saying:

“I’m a Black male doing these things and that’s why there’s such an uproar”.


I then went on a social media thread in which any criticism of Mizzy’s behaviour was described as racist harassment. That shows the complexity of what is being called for in Amendment 268AA, which wants platforms to take additional steps

“to combat incidents of online racially aggravated harassment”.

My worry is that we end up with not only Mizzy’s TikTok videos being removed but his critics being removed for racially harassing him, so we have to be very careful here.

Amendment 268AA goes further, because it wants tech companies to push for prosecution. I really think it is a dangerous step to encourage private companies to get tangled up in deciding what is criminal and so on. The noble Lord, Lord Allan, has exactly described my concerns, so I will not repeat them. Maybe I can probe this probing amendment. It also broadens the issue to all forms of harassment.

By the way, the amendment’s explanatory statement mentions the appalling racist abuse aimed at footballers and public figures, but one of the fascinating things was that when we number-crunched and went granular, we found that the majority of that racist abuse seemed to have been generated by bots, which takes us to the position of the noble Lord, Lord Knight, earlier: who would you prosecute in that instance? Bots not even based in the UK were generating what was assumed to be an outbreak of racist abuse among football fans in the UK, but the numbers did not equate to that. There were some people being racist and vile and some things that were generated in these bot farms.

To go back to the amendment, it goes on to broaden the issue out to

“other forms of harassment and threatening or abusive behaviour”.

Again, this is much more complicated in today’s climate, because those kinds of accusation can be deployed for bad faith reasons, particularly against public figures.

We have an example close to this House. I hope that Members have been following and will show solidarity over what has been happening to the noble Baroness, Lady Falkner of Margravine, who is chair of the Equality and Human Rights Commission and tasked with upholding the equality law but is at the centre of a vicious internal row after her officials filed a dossier of complaints about her. They have alleged that she is guilty of harassment. A KC is being brought in, there are 40 complaints and the whole thing is costing a fortune for both taxpayers and the noble Baroness herself.

It coincided with the noble Baroness, Lady Falkner, advising Ministers to update the definition of sex in the Equality Act 2010 to make clear that it refers to biological sex and producing official advice clarifying that trans women can be lawfully excluded from female-only spaces. We know how toxic that whole debate is.

Many of us feel that a lot of the accusations against the noble Baroness are ideologically and politically motivated vexatious complaints. I am distressed to read newspaper reports that say that she has been close to tears and has asked why anyone would go into public service. All this is for the crime of being a regulator upholding and clarifying the law. I hope it does not happen to the person who ends up regulating Ofcom—ending up close to tears as he stands accused of harassment, abusive behaviour and so on.

The point is that she is the one being accused of harassment. I have seen the vile abuse that she has received online. It is completely defamatory, vicious abuse and yet somehow it ends up being that, because she does not provide psychological safety at work and because of her views, she is accused of harassment and is the one in the firing line. I do not want us to introduce that kind of complexity—this is what I have been worried about throughout—into what is banned, removed or sent to the police as examples of harassment or hate crime.

I know that is not the intention of these amendments; it is the unintended consequences that I dread.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak chiefly to Amendment 262 in my name, although in speaking after the noble Baroness, Lady Fox, who suggested that the grown-ups should control anti-social behaviour by young people online, I note that there is a great deal of anti-social behaviour online from people of all ages. This is relevant to my Amendment 262.

It is a very simple amendment and would require the Secretary of State to consult with young people by means of an advisory board consisting of people aged 25 and under when reviewing the effectiveness and proportionality of this legislation. This amendment is a practical delivery of some of the discussion we had earlier in this Committee when we were talking about including the Convention on the Rights of the Child in the Bill. There is a commonly repeated phrase, “Nothing about us without us”. It was popularised by disability activists in the 1990s, although in doing a little research for this I found that it originates in Latin in Poland in the 15th century. So it is an idea that has been around for a long while and is seen as a democratic standard. It is perhaps a variation of the old “No taxation without representation”.

This suggestion of an advisory board for the Secretary of State is because we know from the discussion earlier on the children’s rights amendments that globally one in three people online is a child under the age of 18. This comes to the point of the construction of your Lordships’ House. Most of us are a very long way removed in experiences and age—some of us further than others. The people in this Committee thinking about a 12 year-old online now are parents, grandparents and great-grandparents. I venture to say that it is very likely that the Secretary of State is at least a generation older than many of the people who will be affected by its provisions.

This reflects something that I also did on the Health and Care Bill. To introduce an advisory panel of young people reporting directly to the Secretary of State would ensure a direct voice for legislation that particularly affects young people. We know that under-18s across the UK do not have any role in elections to the other place, although 16 and 17 year-olds have a role in other elections in Wales and Scotland now. This is really a simple, clear, democratic step. I suspect the Minister might be inclined to say, “We are going to talk to charities and adults who represent children”. I suggest that what we really need here is a direct voice being fed in.

I want to reflect on a recent comment piece in the Guardian that made a very interesting argument: that there cannot be, now or in the future, any such thing as a digital native. Think of the experience of someone 15 or 20 years ago; yes, they already had the internet but it was a very different beast to what we have now. If we refer back to some of the earlier groups, we were starting to ask what an internet with widespread so-called generative artificial intelligence would look like. That is an internet which is very different from even the one that a 20 year-old is experiencing now.

It is absolutely crucial that we have that direct voice coming in from young people with experience of what it is like. They are an expert on what it is like to be a 12 year-old, a 15 year-old or a 20 year-old now, in a way that no one else can possibly be, so that is my amendment.

17:45

I will briefly comment on a couple of other amendments in this group. I am really hoping that the Minister is going to say that the Government will agree with the amendments that replace the gendered term “chairman” with chair. I cannot imagine why we are still writing legislation in 2023 with such gendered terms.

I also want to comment on the amendments from the noble Lord, Lord Stevenson of Balmacara, whom we have not heard from yet. They are Amendments 202ZA and 210A, both of which refer to “journalistic material” and sources. What I want to put on record relates to the Minister’s response to my comments on journalistic sources and encryption on day 3 in Committee. He said then that

“there is no intention or expectation that the tools required to be used under this power would result in a compromising of those sources”.—[Official Report, 27/4/23; col. 1325.]

He was referring to journalistic sources. I have had a great number of journalists and their representatives reaching out to me, pointing to the terms used by the Minister. They have said that if those algorithms, searches or de-encryption tools are let loose, there is no way of being able to say, “That’s a bit of journalism, so the tool’s not going to apply to it”. That simply does not add up. The amendments in this group are getting into that much broader issue, so I look forward to hearing from the noble Lord, Lord Stevenson, on them.

[Lord Clement-Jones (LD)]

My Lords, this is the most miscellaneous of all the groups that we have had, so it has rightly been labelled as such—and the competition has been pretty strong. I want to come back to the amendments of the noble Lord, Lord Stevenson, and of the noble Lord, Lord Bassam, but first I want to deal with my Amendments 200 and 201 and to put on the record the arguments there.

Again, if I refer back to our joint report, we were strongly of the view—alongside the Communications and Digital Committee—that there should be a statutory requirement for regulators

“to cooperate and consult with one another”.

Although we welcomed the formation of the DRCF, it seemed to us that there should be a much firmer duty. I was pleased to hear the examples that my noble friend put forward of the kinds of co-operation that will be needed. The noble Baroness, Lady Morgan, clearly understands that, particularly in the area of fraud, it could be the FCA or ICO, and it could be Ofcom in terms in social media. There is a range of aspects to this—it could be the ASA.

These bodies need to co-operate. As my noble friend pointed out, they can apparently conflict; therefore, co-operating on the way that they advise those who are subject to regulation is rather important. It is not just about the members of the Digital Regulation Cooperation Forum. Even the IWF and the ASA could be included in that, not to mention other regulators in this analogous space. That forum has rightly been labelled as “Digital”, and digital business is now all-pervasive and involves a huge number of regulatory aspects.

Although in this context Ofcom will have the most relevant powers and expertise, and many regulators will look to it for help in tackling online safety issues, effective public protection will be achieved through proper regulatory co-operation. Therefore, Ofcom should be empowered to co-operate with others to share information. As much as it can, Ofcom should be enabled to work with other regulators and share online safety information with them.

It has been very heartening to see the noble Lord, Lord Grade, in his place, even on a Thursday afternoon, and heartening how Ofcom has engaged throughout the passage of the Bill. We know the skills that it is bringing on board, and with those skills we want it to bring other regulators into its work. It seems that Ofcom is taking the lead on those algorithmic understanding skills, but we need Ofcom to have the duty to co-operate with the other regulators on this as well.

Strangely, in Clause 103 the Bill gives Ofcom the general ability to co-operate with overseas regulators, but it is largely silent on co-operation with UK regulators. Indeed, the Communications Act 2003 limits the UK regulators with which Ofcom can share information, excluding the ICO, for example, which is rather perverse in these circumstances. However, the Bill has a permissive approach to overseas regulators so, again, it should extend co-operation and information-sharing in respect of online safety to include regulators overseeing the offences in Schedule 7 that we have spent some time talking about today—the enforcement authorities, for instance, those responsible for enforcing the offences in relation to priority harms to children and priority offences regarding adults. Elsewhere in regulation, the Financial Conduct Authority may have a general duty to co-operate. The reverse may be true, so that duty of co-operation will need to work both ways.

As my noble friend Lord Allan said, Amendment 200, the skilled persons provision, is very straightforward. It is just to give the formal power to be able to use the expertise from a different regulator. It is a very well-known procedure to bring skilled persons into inquiries, which is exactly what is intended there.

Both amendments tabled by the noble Lord, Lord Bassam, are rather miscellaneous too, but are not without merit, particularly Amendment 185A. Please note that I agree with the noble Baroness, Lady Fox. I 100% support the intention behind the amendment but wonder whether the Bill is the right vehicle for it. No doubt the Minister will answer regarding the scope and how practical it would be. I absolutely applaud the noble Lord for campaigning on this issue. It is extraordinarily important, because we have seen some tragic outcomes of these weapons being available for sale online.

Amendment 268AA, also tabled by the noble Lord, Lord Bassam, is entirely different. Our Joint Committee heard evidence from Edleen John of the FA and Rio Ferdinand about abuse online. It was powerful stuff. I tend to agree with my noble friend. We have talked about user empowerment, the tools for it and, particularly in the context of violence against women and girls, the need for a way to be able to report that kind of abuse or other forms of content online. This is a candidate for that kind of treatment. While platforms obviously need to prevent illegal content and have systems to prevent it and so on, having assessed risk in the way that we have heard about previously, I do not believe that expecting the platforms to pick it up and report it, turning them into a sort of proto-enforcer, is the most effective way. We have to empower users. I absolutely share the objectives set out.

[Lord Bassam of Brighton (Lab)]

My Lords, when I brought an amendment to a police Bill, my local football club said to me that it was anticipating spending something like £100,000 a year trying to create and develop filters, which were commercially available, to stop its footballers being able to see the abuse that they were getting online. It did that for a very sensible commercial reason because those footballers’ performance was affected by the abuse they got. I want to know how the noble Lord sees this working if not by having some form of intervention that involves the platforms. Obviously, there is a commercial benefit to providers of filters et cetera, but it is quite hard for those who have been victims to see a way to make this useful to them without some external form of support.

[Lord Clement-Jones (LD)]

I absolutely take what the noble Lord is saying, and I am not saying that the platforms do not have responsibility. Of course they do: the whole Bill is about the platforms taking responsibility with risk assessment, adhering to their terms of service, transparency about how those terms are operating, et cetera. It is purely on the question of whether they need to be reporting that content when it occurs. They have takedown responsibilities for illegal content or content that may be seen by children and so on, but it is about whether they have the duty to report to the police. It may seem a relatively narrow point, but it is quite important that we go with the framework. Many of us have said many times that we regret the absence of “legal but harmful” but, given where we are, we basically have to go with that architecture.

I very much enjoyed listening to the noble Baroness, Lady Bennett. There is no opportunity lost in the course of the Bill to talk about ChatGPT or GPT-4, and that was no exception. It means that we need to listen to how young people are responding to the way that this legislation operates. I am fully in favour of whatever mechanism it may be. It does not need to be statutory, but I very much hope that we do not treat this just as the end of the process but will see how the Bill works out and will listen and learn from experience, and particularly from young people who are particularly vulnerable to much of the content, and the way that the algorithms on social media work.

[Lord Stevenson of Balmacara (Lab)]

My Lords—

[Lord Clement-Jones (LD)]

I am so sorry. With due respect to the noble Lord, Lord Stevenson, the noble Baroness, Lady Bennett, reminded me that his Amendments 202ZA and 210A, late entrants into the miscellaneous group, go very much with the grain that we are trying to get in within the area of encryption. We had quite a long debate about encryption on Clause 110. As ever, the noble Lord has rather cunningly produced something that I think will get us through the eye of the free speech needle. They are two very cunning amendments.

[Lord Stevenson of Balmacara (Lab)]

I thank the noble Lord for that. Free expression, my Lords, not free speech.

[Lord Clement-Jones (LD)]

Freedom of expression.

[Lord Stevenson of Balmacara (Lab)]

Yes, freedom of expression. That is right.

I will start where the noble Lord, Lord Clement-Jones, finished, although I want to come back and cover other things. This is a very complicated group. I do not think we can do it quickly, as each issue is important and is worth trying to take forward.

18:00

Amendments in my name that came very late have been included here. Unfortunately, we did not have time to degroup them. I think they would have been better on their own, but they are here, and we will have the debate. Amendments 202ZA and 210A look as if they have come from a very different place, but, as the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Bennett, have said, they are a continuation of the debate we were having a couple of days ago on encryption. They are proposed as a compromise.

I hope that the end result will be that I will not move them, but that we can have an offline meeting about them to see whether there is a way forward on this. We left the debate on the powers the Bill attempts to take on encryption in a slightly unbalanced place. It is clear that, for very good and persuasive reasons, where there may be criminality happening on an encrypted service, powers will have to be available to those responsible for prosecuting that criminal activity so that they can access the necessary evidence. We do not dispute that at all.

How do you do that when it is fully encrypted and breaking the encryption raises dangers and difficulties? How do you do it if you are relying on not fully tested technological solutions which require giving powers to Ofcom to commission and operate through the companies a procedure we do not yet know will exist? It may work for indecent images but almost certainly will not work for counterterrorism. How do you do it in a way which is guided by the principle that the ability to get the data, when the material has been transmitted in an encrypted form, should not be at the expense of freedom of expression? Therefore, a technical solution looks like a possible winner. It may be in the future, but I do not believe we are there yet, but we have been promised a meeting on this topic and I am looking forward to it.

Thinking again about this and having been in receipt of further correspondence from others outside who have been watching this debate very closely, the amendments to Clauses 110 and 112 are suggested as a compromise which might get us to that point. It takes us down a slightly different route—I am not sure that this has been explored with the Bill team and therefore we should have a meeting to discuss it—of trying to dig a bit deeper into what would constitute a reasonable ground for persuading those responsible for hosting encrypted material and arguing convincingly that there is evidence to break their rule of non-interference, at least to the stage of metadata. The key here is not the content itself, but the ability to reach back to those attempting to use encrypted systems for criminal or other illegal behaviour.

In that sense, what is proposed here is a requirement for Ofcom, if it is left with Ofcom. I still believe it would be better if there were a third-party review of that on a judicial level following the RIPA proposals. It is a suggestion which might command support in the industry by allowing for a definitional approach making sure that we are talking about proper journalistic material and allowing that to be taken as a route forward so that there would be reassurance for those who are concerned on the journalistic side that the material would not be accessed and used in a way which would be detrimental to their activity and it could be protected. I will not take it any further than that, unless others would like it. That is the purpose behind this amendment. I am sorry that it was late, and it should not really have been in this group, but it is good to have got it on the table. I hope it will feed into the discussions we are due to have.

Having said that, I will briefly go back to my noble friend Lord Bassam’s amendments. The noble Lord, Lord Clement-Jones, made a couple of the points I wanted to make, but I will reinforce them. I am particularly glad that my noble friend came, given that his throat is as bad as it is—I am sure that it is entirely due to his overenthusiastic support for his football team. No doubt he celebrated late into the night its success in getting into the Europa competition. I never use sporting metaphors, but I have to use one for my noble friend Lord Bassam.

On knives, I am pleased to see this here—we had a good response to it, and I look forward to the Minister’s response. I first came across this issue when I was relatively new in your Lordships’ House. I had a placement with the Met, over a period of time, to get to know how it worked and everything else. It was a fantastic experience that was organised well; anyone who has not done it should do it. It is a good way of learning a bit more about something that is clearly in the public consciousness at the moment.

One of my visits was to a group of young officers operating in and around Brixton. I spent three days there and experienced a riot that they had not anticipated, which was quite exciting. The main point was that we spoke a lot about knives and their role in society. The evidence I saw, in practice, was that this was a burgeoning problem that the police were not well equipped to deal with—this was five or six years ago. It was not for want of trying; it was just that the way the gang culture operated in Brixton, as I understood it, was that the responsibility for enrolling, for maintaining discipline and, subsequently, for operating a gang there was largely governed by rules well away from those recognised in civilised society. The methods of control were knives being placed into the bodies of persons who were being disciplined. The police had no way of coping with that.

Part of the problem with this, as my noble friend Lord Bassam mentioned, is the supply of very unpleasant weapons coming in, usually ordered through the dark web. Again, the police felt that they did not have the equipment, knowledge, skills or even the time to track them down. They were always chasing their tail and were never catching up—they could never keep ahead of it. A really important issue is buried in this amendment; we need to consider it more broadly and society needs to take account of it. If there is an issue within the Bill that should be addressed, it is that. We would like it discussed and hope it will be thought about and implemented if possible.

On Amendment 268AA, I will go back to what the noble Lord, Lord Clement-Jones, said about the evidence we received in the Joint Committee—it was extraordinarily powerful, particularly that from Rio Ferdinand but also that from others who accompanied him on that occasion—about the impact that the internet was having on the health and well-being of players, particularly those affected by abuse after games. He said—I am sure that he will not mind me referring to this—that, before the internet got to the point where it is now, there was still terrible abuse in the stadiums when you were playing, but, because it did not come with you when you left the stadium, you were able to relax, go home and get away from it. But, with the internet, you see it on your timeline and in tweets, and it is sent to you by your friends—and it became impossible and 24/7. It became a real burden, and he saw the impact on younger players—we have seen plenty of evidence of that.

When we reflected in the committee as a result of that evidence, we were working with a version of the Bill that had Clause 11, on legal but harmful content. We were trying to find ways to get a better sense and balance. The committee clearly said that it did not think that legal but harmful was an appropriate way forward, but we certainly also recognised that that meant that a process would have to be in place to deal with material that is not what society wishes to see circulating and influencing the process and young people in particular. We recognised then that there was a problem with having an online safety Act that does not require companies to act on misogynous abuse or hatred being stirred up against coloured or disabled people, to give but two examples of where the gap would emerge. Although we recommended that the legal but harmful clause should be removed, we said that there had to be

“a statutory requirement on providers to have in place proportionate systems and processes to identify and mitigate reasonably foreseeable risks of harm arising from regulated activities defined under the Bill”.

We are not there yet.

Amendment 268AA in the name of my noble friend Lord Bassam gets us a little into the issues of racially aggravated behaviour, harassment and other forms of abuse, and I am very interested to hear what the Government’s response to it will be. I am not sure that we have the tools yet in the Bill, or in the terms of reference approach that has been taken, that would allow that proposal to happen, but maybe the Minister will be able to help us with this when he responds.

I will touch on other amendments in this group. I hope that we will receive a positive response to the amendment from my noble friend Lady Merron, who unfortunately cannot be with us at the moment, in relation to instances of gendered language.

The amendments proposed and spoken to by the noble Lord, Lord Clement-Jones, are important in themselves, but also play to a bigger point, particularly Amendment 201. We do not have much down on this in relation to the question of how Ofcom will relate to other regulators, but the case he made was very persuasive. I hope that the Minister can say something about that. The idea is that we will muddle on with the existing arrangement of informal networking between very powerful regulators—each of whom will have, as the noble Lord said, sometimes conflicting rules about how things go—which can be brokered through a co-operation agreement. But it would be better if it were accompanied by a set of real powers to work together, including joint powers in cases where there are issues affecting both personal data and the impact that Ofcom will have in relation to companies’ operations. We should also recognise that there will be other regulators joining the club every year that will need to be involved and processed. Some basic understanding of the rules—maybe not in the Bill, but certainly forecast to be brought forward in a future piece of legislation—seems to be vital to give them the context with which they can begin to work together and from which we can learn the lessons that will be necessary when new powers are prepared. I am very supportive of Amendment 201, and I hope that there will be a positive thought about how we might take it forward.

The noble Lord, Lord Bethell, is not in his place so, presumably, will not speak to his Amendment 220D, which would give Ofcom powers to delegate some of its regulated powers to another body. Other similar amendments are coming up later, so maybe that point will be picked up then. However, I will put on the record, as the noble Baroness, Lady Stowell, has said on other occasions, that there are problems with simply adding other regulators into what is a very powerful statutory body, particularly if they are not, in any way, public bodies themselves. With no disrespect to those currently working in them, I think that, where are a charitable body or a private company is engaging with bodies such as Ofcom, there should be no question of statutory powers being delegated to them; that must not happen. A form of contract for particular work to be delivered under the control of the statutory body, Ofcom, is fine, but we should not be talking about coequal powers; that would be wrong.

Finally, I do not want to anticipate the Minister in introducing the amendments in his name, but we have no objections to them. I am sure that they will work exactly as he proposes and that they will be acceptable.

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

My Lords, this has been miscellany, indeed. We must be making progress if we are picking up amendments such as these. I thank noble Lords who have spoken to the amendments and the issues covered in them.

I turn first to Amendment 185A brought to us by the noble Lord, Lord Bassam of Brighton, which seeks to add duties on online marketplaces to limit children’s access to the sale of knives, and proactively to identify and remove listings which appear to encourage the sale of knives for the purposes of violence or self-harm. Tackling knife crime is a priority for His Majesty’s Government; we are determined to crack down on this violent scourge, which is devastating our communities. I hope that he will forgive me for not drawing on the case he mentioned, as it is still sub judice. However, I certainly take the point he makes; we are all too aware of cases like it up and down the country. I received an email recently from Amanda and Stuart Stephens, whose son, Olly, was murdered by two boys, one of whom was armed with a knife. All these cases are very much in our minds as we debate the Bill.

Let me try to reassure them and the noble Lord as well as other Members of the Committee that the Bill, through its existing duties and other laws on the statute book, already achieves what the noble Lord seeks with his amendment. The sale of offensive weapons and of knives to people under the age of 18 are criminal offences. Any online retailer which directly sells these prohibited items can already be held criminally liable. Once in force, the Bill will ensure that technology platforms, including online marketplaces, prevent third parties from using their platform to sell offensive weapons or knives to people under the age of 18. The Bill lists both these offences as priority offences, meaning that user-to-user services, including online marketplaces, will have a statutory obligation proactively to prevent these offences taking place on their services.

18:15

I am grateful to the noble Lord, Lord Stevenson of Balmacara, for his support for the government amendments. The Government are committed to ensuring that the regime set up by the Bill is cost-neutral to the taxpayer. As such, it will be funded via annual fees on regulated services the revenue from which is at or above a set revenue threshold. At present, Ofcom is preparing for its new duties as regulator, and funding this by the retention of receipts under the Wireless Telegraphy Act 2006. Once the Bill that we are debating in this Committee is in place, Ofcom will charge fees to recoup this money alongside funding its ongoing costs. As the Bill is still before this Committee, Ofcom has not yet been granted the information-gathering powers which are necessary to prepare the fee regime. This means it cannot issue information requests for financial information from firms. As such, only when the Bill passes will Ofcom be able to begin implementing the fee regime.

In consideration of this, the Government have decided that fees should be charged from the financial year 2025-26 at the earliest. The decision does not affect implementation timings for any other areas of the regime. Amendments 186A to 186C will ensure that the fee regime functions in a fair and practical manner under these timings. The amendments ensure that the costs that Ofcom incurs while preparing for, and exercising, its online safety functions are met by the retention of receipts under the Wireless Telegraphy Act, up until the point when the fee regime is operational. They also ensure that these costs are recovered in a proportionate manner by extending the Schedule 10 recouping regime. I hope that that will have the support of this Committee.

Amendment 200 seeks to expand the definition of “skilled person” to include a regulator or self-regulatory body. I assure the noble Lord, Lord Allan of Hallam, that the Bill’s definition of a “skilled person” is already sufficiently broad to include a regulator or self-regulatory body. As set out in Clause 207(1), the Bill’s existing definition of “person” includes “any organisation or association of persons”. This means that the Bill’s definition of “skilled person” enables Ofcom to appoint an individual, organisation, body of persons or association of persons which appears to it to have the skills necessary to prepare a specific report. That includes a regulator or self-regulatory body, as the noble Lord’s amendment suggests.

On regulatory co-operation, I am conscious that I promised the noble Lord, Lord Russell of Liverpool, further details on this when he asked about it in an earlier grouping, so I shall set them out now so that he can consult them in the official record. I reassure the noble Lord and other noble Lords that Ofcom has strong existing relationships with domestic regulators. That has been supported by the establishment of the Digital Regulation Cooperation Forum, which we have discussed before. Effective regulatory co-ordination is essential for addressing the cross-cutting opportunities and challenges posed by digital technologies and services.

The creation of the forum was a significant step forward in delivering greater coherence at the institutional level and has been widely welcomed by industry and consumer representatives. Its formation has been particularly timely in bringing together the key regulators involved in the proposed new online safety, data and digital competition regimes. Its work has already delivered real and wide-ranging impact, including landmark policy statements clarifying the interactions between digital regulatory regimes, research into cross-cutting issues and horizon-scanning activities on new regulatory challenges. It is important to note that the Information Commissioner’s Office is a member of the forum. We will continue to assess how best to support collaboration between digital regulators and ensure that their approaches are joined up.

In addition, Ofcom already has a statutory footing to share information with UK regulators under the Communications Act 2003. Section 393 of that Act includes provisions for sharing information between Ofcom and other regulators in the UK, such as the Information Commissioner’s Office, the Financial Conduct Authority and the Competition and Markets Authority. So, we believe the issues set out in the amendment are covered.

Let me turn now to the cunning amendments from the noble Lord, Lord Stevenson, which seek to introduce special provisions to apply in cases where a notice issued under Clause 110 would involve the monitoring of journalistic material or material identifying journalistic sources. I appreciate the way he has set those out and I am very happy to have the more detailed discussion with the Bill team that he suggested. Let me just say, though, that the Government are fully committed to protecting the integrity of journalistic material and there is no intention that the technologies required under Clause 110 in relation to private communications would identify anything other than child sexual abuse and exploitation content. These powers are subject to strong safeguards to protect the privacy of all users. Any technologies required on private communications must be accredited by Ofcom as being highly accurate in detecting only child sexual exploitation and abuse content. These minimum standards of accuracy will be approved and published by the Secretary of State following advice from Ofcom and will ensure that it is highly unlikely that journalistic material that is not such content would be erroneously flagged or removed.

[Lord Stevenson of Balmacara (Lab)]

I am sorry to interrupt. The Minister has twice given a positive response, but he limited it to child sexual exploitation; he did not mention terrorism, which is in fact the bigger issue. Could he confirm that it is both?

[Lord Parkinson of Whitley Bay (Con)]

Yes, and as I say, I am happy to talk with the noble Lord about this in greater detail. Under the Bill, category 1 companies will have a new duty to safeguard all journalistic content on their platform, which includes citizen journalism. But I will have to take all these points forward with him in our further discussions.

My noble friend Lord Bethell is not here to move his Amendment 220D, which would allow Ofcom to designate online safety regulatory duties under this legislation to other bodies. We have previously discussed a similar issue relating to the Internet Watch Foundation, so I shall not repeat the points that we have already made.

On the amendments on supposedly gendered language in relation to Ofcom advisory committees in Clauses 139 and 155, I appreciate the intention to make it clear that a person of either sex should be able to perform the role of chairman. The Bill uses the term “chairman” to be consistent with the terminology in the Office of Communications Act 2002, and we are confident that this will have no bearing on Ofcom’s decision-making on who will chair the advisory committees that it must establish, just as, I am sure, the noble Lord’s Amendment 56 does not seek to be restrictive about who might be an “ombudsman”.

I appreciate the intention of Amendment 262 from the noble Baroness, Lady Bennett of Manor Castle. It is indeed vital that the review reflects the experience of young people. Clause 159 provides for a review to be undertaken by the Secretary of State, and published and laid before Parliament, to assess the effectiveness of the regulatory framework. There is nothing in the existing legislation that would preclude seeking the views of young people either as part of an advisory group or in other ways. Moreover, the Secretary of State is required to consult Ofcom and other persons she considers appropriate. In relation to young people specifically, it may be that a number of different approaches will be effective—for example, consulting experts or representative groups on children’s experiences online. That could include people of all ages. The regulatory framework is designed to protect all users online, and it is right that we take into account the full spectrum of views from people who experience harms, whatever their age and background, through a consultation process that balances all their interests.

Amendment 268AA from the noble Lord, Lord Bassam, relates to reporting requirements for online abuse and harassment, including where this is racially motivated—an issue we have discussed in Questions and particularly in relation to sport. His amendment would place an additional requirement on all service providers, even those not in scope of the Bill. The Bill’s scope extends only to user-to-user and search services. It has been designed in this way to tackle the risk of harm to users where it is highest. Bringing additional companies in scope would dilute the efforts of the legislation in this important regard.

Clauses 16 and 26 already require companies to set up systems and processes that allow users easily to report illegal content, including illegal online abuse and harassment. This amendment would therefore duplicate this existing requirement. It also seeks to create an additional requirement for companies to report illegal online abuse and harassment to the Crown Prosecution Service. The Bill does not place requirements on in-scope companies to report their investigations into crimes that occur online, other than child exploitation and abuse. This is because the Bill aims to prevent and reduce the proliferation of illegal material and the resulting harm it causes to so many. Additionally, Ofcom will be able to require companies to report on the incidence of illegal content on their platforms in its transparency reports, as well as the steps they are taking to tackle that content.

I hope that reassures the noble Lord that the Bill intends to address the problems he has outlined and those explored in the exchange with the noble Lord, Lord Clement-Jones. With that, I hope that noble Lords will support the government amendments in this group and be satisfied not to press theirs at this point.

[Lord Bassam of Brighton (Lab)]

My Lords, I listened very carefully to the Minister’s response to both my amendments. He has gone some way to satisfying my concerns. I listened carefully to the concerns of the noble Baroness, Lady Fox, and noble Lords on the Lib Dem Benches. I am obviously content to withdraw my amendment.

I do not quite agree with the Minister’s point about dilution on the last amendment—I see it as strengthening —but I accept that the amendments themselves slightly stretch the purport of this element of the legislation. I shall review the Minister’s comments and I suspect that I shall be satisfied with what he said.

Amendment 185A withdrawn.

Clauses 74 to 78 agreed.

Clause 79: OFCOM’s fees statements

Amendment 186 not moved.

Amendment 186A

Moved by

[Lord Parkinson of Whitley Bay]

186A: Clause 79, page 71, line 20, leave out paragraph (b)
Member’s explanatory statement
This amendment omits a provision about recouping OFCOM’s preparatory costs via fees under Part 6 of the Bill, because it is now intended to recoup all preparatory costs incurred before the fees regime is in operation via the charging of additional fees under Schedule 10 (see also the amendment to Schedule 10 in the Minister’s name).

Amendment 186A agreed.

Clause 79, as amended, agreed.

Clause 80: Recovery of OFCOM’s initial costs

Amendment 186B

Moved by

[Lord Parkinson of Whitley Bay]

186B: Clause 80, page 71, line 26, leave out from “incurred” to end of line 27 and insert “before the first day of the initial charging year.”
Member’s explanatory statement
This amendment is to the clause introducing Schedule 10 (recovery of OFCOM’s initial costs). The amendment reflects the change to Schedule 10 proposed by the amendment of that Schedule in the Minister’s name.

Amendment 186B agreed.

Clause 80, as amended, agreed.

Schedule 10: Recovery of OFCOM’s initial costs

Amendment 186C

Moved by

[Lord Parkinson of Whitley Bay]

186C: Schedule 10, page 212, line 37, leave out from “before” to end of line 39 and insert “the first day of the initial charging year on—
(a) preparations for the exercise of their online safety functions, or(b) the exercise of their online safety functions;”Member’s explanatory statement
Schedule 10 enables OFCOM to charge additional fees to recover certain online safety costs which are met by the retention of receipts under the Wireless Telegraphy Act 2006. This amendment extends the Schedule 10 regime to cover all costs incurred before the main fees regime under Part 6 of the Bill is in operation (as opposed to only covering preparatory costs incurred before the commencement of clause 79).

Amendment 186C agreed.

Schedule 10, as amended, agreed.

Clause 81 agreed.

Clause 82: General duties of OFCOM under section 3 of the Communications Act

Amendment 187 not moved.

Clause 82 agreed.

Amendment 188 not moved.

Clauses 83 and 84 agreed.

Amendments 189 to 191 not moved.

Clause 85 agreed.

Schedule 11: Categories of regulated user-to-user services and regulated search services: regulations

Amendment 192

Moved by

[Baroness Morgan of Cotes]

192: Schedule 11, page 216, line 30, after “service” insert “, including significant risk of harm,”
Member’s explanatory statement
There are some platforms which, whilst attracting small user numbers, are hubs for extreme hateful content and should be regulated as larger user-to-user services.

[Baroness Morgan of Cotes (Con)]

My Lords, I am very grateful to the noble Baronesses, Lady Parminter and Lady Deech, and the noble Lord, Lord Mann, for their support. After a miscellaneous selection of amendments, we now come back to a group of quite tight amendments. Given the hour, those scheduling the groupings should be very pleased because for the first time we have done all the groups that we set out to do this afternoon. I do not want to tempt fate, but I think we will have a good debate before we head off for a little break from the Bill for a while.

18:30

I am very sympathetic to the other amendments in this grouping: Amendments 192A and 194. I think there is a common theme running through them all, unsurprisingly, which I hope my noble friend the Minister will be able to address in his remarks. Some of these amendments come about because we do not know the exact categorisation of the services we are most concerned about in this House and beyond, and how that categorisation process is going to work and be kept under review. That is probably the reason behind this group of amendments.

As noble Lords will be aware, the Bill proposes two major categories of regulated company, category 1 and category 2, and there is another carve-out for search services. Much of the discussion about the Bill has focused on the regulatory requirements for category 1 companies, but—again, we have not seen the list—it is expected that the list of category 1 companies may number only a few dozen, while thousands and thousands of platforms and search engines may not meet that threshold. But some of those other platforms, while attracting small user numbers, are hubs for extremely hateful content. In a previous debate we heard about the vile racist abuse often aimed at particular groups. Some of these platforms are almost outside some of our own experiences. They are deliberately designed to host such hateful content and to try to remain under the radar, but they are undoubtedly deeply influential, particularly to those—often vulnerable—users who access them.

Platforms such as 8kun, 4chan and BitChute are perhaps becoming more well known, whereas Odysee, Rumble and Minds remain somewhat obscure. There are numerous others, and all are easily accessible from anyone’s browser. What does the harm caused by these platforms look like? Some examples are in the public domain. For example, the mass shooting in Buffalo, in America, was carried out by a terrorist whose manifesto was inspired by 4chan’s board and who spoke of its influence on him. Later in this debate we are going to hear about specific content related to suicide, self-harm or eating disorders, which we have already debated in other contexts in these Committee proceedings.

The Center for Countering Digital Hate revealed that the four leading forums it analysed for incels—involuntary celibates—were filled with extreme hatred of women, glorification of violence and active discussion of paedophilia. On Gab, an “anti-Jewish meme repository”, grotesque anti-Semitic caricatures of Jews are shared from an account with an offensive name that seeks to deny the Holocaust. Holocaust denial material is similarly shared across BitChute, where it is also possible to find a video on the supposed

“Jewish Plan To Genocide The White Race”

and, of course, 9/11 conspiracy theories. Meanwhile, on Odysee, other than discussion of the supposed “fake Holocaust” one can find discussion of the “Jewish problem”. On Minds, both President Zelensky and President Putin are condemned for having “kike”—an offensive term for Jews—inner circles, while other posts state that communism is Jewish control and the vessel to destroy our freedom.

The Government and many others know very well that these small, high-harm platforms are a problem. MPs in earlier debates on this Bill raised concerns repeatedly. The noble Lord, Lord Austin, raised this at Second Reading in your Lordships’ House and, nearly a year ago, the then Secretary of State issued a ministerial Statement indicating that, while the Government appreciated that small high-harm platforms do damage,

“more research is required before such platforms can be assigned to the category 1 designation for the online safety regime”.

This was despite Ofcom’s road map for online safety making it clear that it had already identified a number of small platforms that are clearly giving cause for concern.

So the case for action, as set out in my remarks and elsewhere, is proven. The Antisemitism Policy Trust has given evidence to the Joint Committee on the draft Bill and the Bill Committee in another place about this. The Community Security Trust, HOPE not hate and many others have data that demonstrates the level of hateful anti-Semitic and other racist and misogynistic abuse on these platforms. I know others will refer to the work of the Samaritans, the Mental Health Foundation and Beat in raising issues around suicide, self-harm and eating disorder content.

Extraordinarily, these are not platforms where this content is stumbled on or somehow hidden. They are set up deliberately to spread this content, to get people to look at it and to amplify this deeply harmful material. These sites act as feeders for hateful messages and activity on mainstream platforms or as receptors for those directed away from those larger services to niche, hate-filled rabbit holes. We need to think about this as the Bill is implemented. As we hope that the larger platforms will take action and live up to the terms of service they say they have, without action this content will unfortunately disappear to smaller platforms which will still be accessed and have action in the online and offline worlds. I hope my noble friend the Minister will say something about post-implementation in relation to these platforms.

Amendment 192 is a small, technical amendment. It does not compel Ofcom to add burdens to all small platforms but provides a specific recourse for the Secretary of State to consider the risks of harm as part of the process of categorisation. A small number of well-known, small high-harm sites would be required to add what will ultimately be minimal friction and other measures proportionate to their size. They will be required to deliver enhanced transparency. This can only be for the good, given that in some cases these sites are designed specifically to spread harm and radicalise users towards extreme and even terrorist behaviours.

The Government accept that there is a problem. Internet users broadly accept that there is a problem. It must be sensible, in deciding on categorisation, to look at the risk of harm caused by the platforms. I beg to move.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I will speak to Amendment 192A. There can be nothing more comfortable within the terms of parliamentary debate than to find oneself cossetted by the noble Baroness, Lady Morgan, on one side and my noble friend Lord Stevenson on the other. I make no apology for repeating the thrust of the argument of the noble Baroness, but I will narrow the focus to matters that she hinted at which we need to think about in a particular way.

We have already debated suicide, self-harm and eating disorder content hosted by category 1 providers. There is a need for the Bill to do more here, particularly through strengthening the user empowerment duties in Clause 12 so that the safest option is the default. We have covered that ground. This amendment seeks to address the availability of this content on smaller services that will fall outside category 1, as the noble Baroness has said. The cut-off conditions under which services will be determined to fall within category 1 are still to be determined. We await further progress on that. However, there are medium-sized and small providers whose activities we need to look at. It is worth repeating—and I am aware that I am repeating—that these include suicide and eating disorder forums, whose main business is the sharing and discussion of methods and encouragement to engage in these practices. In other words, they are set up precisely to do that.

We know that that there are smaller platforms where users share detailed information about methods of suicide. One of these in particular has been highlighted by families and coroners as playing a role in the suicides of individuals in the UK. Regulation 28 reports—that is, an official request for action—have been issued to DCMS and DHSC by coroners to prevent future comparable deaths.

A recent systematic review, looking at the impact of suicide and self-harm-related videos and photographs, showed that potentially harmful content concentrated specifically on sites with low levels of moderation. Much of the material which promotes and glorifies this behaviour is unlikely to be criminalised through the Government’s proposed new offence of encouragement to serious self-harm. For example, we would not expect all material which provides explicit instructional information on how to take one’s life using novel and effective methods to be covered by it.

The content has real-world implications. There is clear evidence that when a particular suicide method becomes better known, the effect is not simply that suicidal people switch from one intended method to the novel one, but that suicides occur in people who would not otherwise have taken their own lives. There are, therefore, important public health reasons to minimise the discussion of dangerous and effective suicide methods.

The Bill’s pre-legislative scrutiny committee recommended that the legislation

“adopt a more nuanced approach, based not just on size and high-level functionality, but factors such as risk, reach, user base, safety performance, and business model”.

This amendment is in line with that recommendation, seeking to extend category 1 regulation to services that carry a high level of risk.

The previous Secretary of State appeared to accept this argument—but we have had a lot of Secretaries of State since—and announced a deferred power that would have allowed for the most dangerous forums to be regulated; but the removal of the “legal but harmful” provisions from the legislation means that this power is no longer applicable, as its function related to the “adult risk assessment” duty, which is no longer in the Bill.

This amendment would not shut down dangerous services, but it would make them accountable to Ofcom. It would require them to warn their users of what they were about to see, and it would require them to give users control over the type of content that they see. That is, the Government’s proposed triple shield would apply to them. We would expect that this increased regulatory burden on small platforms would make them more challenging to operate and less appealing to potential users, and would diminish their size and reach over time.

This amendment is entirely in line with the Government’s own approach to dangerous content. It simply seeks to extend the regulatory position that they themselves have arrived at to the very places where much of the most dangerous content resides. Amendment 192A is supported by the Mental Health Foundation, the Samaritans and others that we have been able to consult. It is similar to Amendment 192, which we also support, but this one specifies that the harmful material that Ofcom must take account of relates to self-harm, suicide and eating disorders. I would now be more than happy to give way—eventually, when he chooses to do it—to my noble friend Lord Stevenson, who is not expected at this moment to use the true and full extent of his abilities at being cunning.

[Baroness Bull (CB)]

My Lords, I rise to offer support for all the amendments in this group, but I will speak principally to Amendment 192A, to which I have added my name and which the noble Lord, Lord Griffiths, has just explained so clearly. It is unfortunate that the noble Baroness, Lady Parminter, cannot be in her place today. She always adds value in any debate, but on this issue in particular I know she would have made a very compelling case for this amendment. I will speak principally about eating disorders, because the issues of self-harm have already been covered and the hour is already late.

The Bill as it stands presumes a direct relationship between the size of a platform and its potential to cause harm. This is simply not the case: a systematic review which we heard mentioned confirmed what all users of the internet already know—that potentially harmful content is often and easily found on smaller, niche sites that will fall outside the scope of category 1. These sites are absolutely not hard to find—they come up on the first page of a Google search—and some hide in plain sight, masquerading, particularly in the case of eating disorder forums, as sources of support, solace or factual information when in fact they encourage and assist people towards dangerous practices. Without this amendment, those sites will continue spreading their harm and eating disorders will continue to have the highest mortality rate of all mental illnesses in the UK.

18:45

I was going to say something about the suicide sites, but the point which comes out of the research has already been made, that when a novel method of suicide becomes more well known, it is not just that people intending to kill themselves switch from one method to another but that the prevalence of suicide increases. As the noble Lord said, this is not just about preventing individual tragedies but is indeed a public health issue.

I very much welcome the steps being taken in the Bill to tackle the prevalence of damaging content, particularly as it applies to children. However, I believe that, as the Bill stands, smaller providers will fly under the radar and vulnerable adults will be harmed—the Bill is extremely light on protections for that category of people. Amendment 192A absolutely seeks to ensure that the Bill tackles content wherever it gives rise to a very high risk of harm, irrespective of the platform’s size. Arguments about regulatory burden on small sites should not apply when health, well-being and lives are at risk. The pre-legislative committee was absolutely alive to this, and its recommendations highlighted the risks here of the small, high-risk companies. As we heard, the previous Secretary of State announced a deferred power but that lapsed when the adult risk assessments were removed.

I fear that the current approach in the Bill will push people who promote this kind of content simply to create smaller platforms where they are beyond the arm of the law. It is not clear whether they would be caught instead by the Government’s new offence of encouraging or assisting serious self-harm. I know we have not debated that yet, but I cannot understand whether encouragement to starvation would be covered by that new offence. It is properly too early to ask the Minister to clarify that, but if he has the answer, I would like to understand that.

We have heard the term “rabbit hole”; there is a rabbit hole, where people intent on self-harm or indeed those who suffer from eating disorders go from larger platforms to smaller and niche ones where they encounter the very content that feeds their addiction, or which fuels and enables their desire to self-harm. As I said in a previous grouping, this cannot be the intention of the Bill, I do not believe it is the intention of the Government, and I hope that the Minister will listen to the arguments that the noble Baroness, Lady Morgan of Cotes, set out so effectively.

[Lord Allan of Hallam (LD)]

My Lords, I am a poor substitute for the noble Baroness, Lady Parminter, in terms of the substance of the issues covered by these amendments, but I am pleased that we have been able to hear from the noble Baroness, Lady Bull, on that. I will make a short contribution on the technology and the challenges of classification, because there are some important issues here that the amendments bring out.

We will be creating rules for categorising platforms. As I understand it, the rules will have a heavy emphasis on user numbers but will not be exclusively linked to user numbers. It would be helpful if the Minister could tease out a little more about how that will work. However, it is right even at this stage to consider the possibility that there will need to be exceptions to those rules and to have a mechanism in place for that.

We need to recognise that services can grow very quickly these days, and some of the highest-risk moments may be those when services have high growth but still very little revenue and infrastructure in place to look after their users. This is a problem generally with stepped models, where you have these great jumps; in a sense, a sliding scale would be more rational, so that responsibilities increase over time, but clearly from a practical view it is hard to do that, so we are going to end up with some kind of step model.

We also need to recognise that, from a technical point of view, it is becoming cheaper and easier to build new user-to-user services all the time. That has been the trend for years, but it is certainly the case now. If someone wants to create a service, they can rent the infrastructure from a number of providers rather than buying it, they can use a lot of code that is freely available—they do not need to write as much code as they used to—and they can promote their new service using all the existing social networks, so you can go from zero to significant user numbers in very quick time, and that is getting quicker all the time. I am interested to hear how the Minister expects such services to be regulated.

The noble Baroness, Lady Morgan, referred to niche platforms. There will be some that have no intention to comply, even if we categorise them as a 2B service. The letter will arrive from Ofcom and go in the bin. They will have no interest whatever. Some of the worst services will be like that. The advantage of us ensuring that we bring them into scope is that we can move through the enforcement process quickly and get to business disruption, blocking, or whatever we need to do to get them out of the UK market. Other niche services will be willing to come into line if they are told they are categorised as 2B but given a reasonable set of requirements. Some of Ofcom’s most valuable work might be precisely to work with them: services that are borderline but recognise that they want to have a viable business, and they do not have a viable business by breaking the law. We need to get hold of them and bring them into the net to be able to work with them.

Finally, there is another group which is very mainstream but in the growing phase and busy growing and not worrying about regulation. For that category of company, we need to work with them as they grow, and the critical thing is to get them early. I think the amendments would help Ofcom to be able get to them early—ideally, in partnership with other regulators, including the European Union, which is now regulating in a similar way under the Digital Services Act. If we can work with those companies as they come into 2B, then into category 1—in European speak, that is a VLOP, a very large online platform—and get them used to the idea that they will have VLOP and category 1 responsibilities before they get there, we can make a lot more progress. Then we can deliver what we are all trying to, which is a safer internet for people in the UK

[Baroness Fox of Buckley (Non-Afl)]

I shall speak very briefly at this hour, just to clarify as much as anything. It seems important to me that there is a distinction between small platforms and large platforms, but my view has never been that if you are small, you have no potential harms, any more than if you are large, you are harmful. The exception should be the rule. We have to be careful of arbitrary categorisation of “small”. We have to decide who is going to be treated as though they are a large category 1 platform. I keep saying but stress again: do not assume that everybody agrees what significant risk of harm or hateful content is. It is such highly disputed political territory outside the online world and this House that we must recognise that it is not so straightforward.

I am very sympathetic, by the way, to the speeches made about eating disorders and other issues. I see that very clearly, but other categories of speech are disputed and argued over—I have given loads of examples. We end up where it is assumed that the manifestoes of mass shooters appear on these sites, but if you read any of those manifestoes of mass shooters, they will often be quoting from mainstream journalists in mainstream newspapers, the Bible and a whole range of things. Just because they are on 4Chan, or wherever, is not necessarily the problem; it is much more complicated.

I ask the Minister, and the proposers of the amendment, to some extent: would it not be straightforwardly the case that if there is a worry about a particular small platform, it might be treated differently—

[Lord Allan of Hallam (LD)]

I just want to react to the manifestos of mass shooters. While source material such the Bible is not in scope, I think the manifesto of a shooter is clear incitement to terrorism and any platform that is comfortable carrying that is problematic in my view, and I hope it would be in the noble Baroness’s view as well.

[Baroness Fox of Buckley (Non-Afl)]

I was suggesting that we have a bigger problem than it appearing on a small site. It quotes from mainstream media, but it ends up being broadly disseminated and not because it is on a small site. I am not advocating that we all go round carrying the manifestos of mass shooters and legitimising them. I was more making the point that it can be complicated. Would not the solution be that you can make appeals that a small site is treated differently? That is the way we deal with harmful material in general and the way we have dealt with, for example, RT as press without compromising on press freedom. That is the kind of point I am trying to make.

I understand lots of concerns but I do not want us to get into a situation where we destroy the potential of all smaller platforms—many of them doing huge amounts of social good, part of civil society and all the rest of it—by treating them as though they are large platforms. They just will not have the resources to survive, that is all my point is.

[Lord Clement-Jones (LD)]

My Lords, I am going to be extremely brief given the extremely compelling way that these amendments have been introduced by the noble Baroness, Lady Morgan, and the noble Lord, Lord Griffiths, and contributed to by the noble Baroness, Lady Bull. I thank her for her comments about my noble friend Lady Parminter. I am sure she would have wanted to be here and would have made a very valuable contribution as she did the other day on exactly this subject.

As the noble Baroness, Lady Fox, has illustrated, we have a very different view of risk across this Committee and we are back, in a sense, into that whole area of risk. I just wanted to say that I think we are again being brought back to the very wise words of the Joint Committee. It may sound like special pleading. We keep coming back to this, and the noble Lord, Lord Stevenson, and I are the last people standing on a Thursday afternoon.

We took a lot of evidence in this particular area. We took the trouble to go to Brussels and had a very useful discussion with the Centre on Regulation in Europe and Dr Sally Broughton Micova. We heard a lot about interconnectedness between some of these smaller services and the impact in terms of amplification across other social media sites.

We heard in the UK from some of the larger services about their concerns about the activities of smaller services. You might say “They would say that, wouldn’t they?” but they were pretty convincing. We heard from HOPE not Hate, the Antisemitism Policy Trust and Stonewall, stressing the role of alternative services.

Of course, we know that these amendments today—some of them sponsored by the Mental Health Foundation, as the noble Lord, Lord Griffiths, said, and Samaritans—have a very important provenance. They recognise that these are big problems. I hope that the Minister will think strongly about this. The injunction from the noble Lord, Lord Allan, to consider how all this is going to work in practice is very important. I very much hope that when we come to consider how this works in practical terms that the Minister will think very seriously about the way in which risk is to the fore— the more nuanced approach that we suggested—and the whole way that profiling by Ofcom will apply. I think that is going to be extremely important as well. I do not think we have yet got to the right place in the Bill which deals with these risky sites. I very much hope that the Minister will consider this in the quite long period between now and when we next get together.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a good little debate with some excellent speeches, which I acknowledge. Like the noble Lord, Lord Clement-Jones, I was looking at the Joint Committee’s report. I concluded that one of the first big issues we discussed was how complicated the categorisation seemed in relation to the task that was being set for Ofcom. We comforted ourselves with the thought that if you believe that this is basically a risk-assessment exercise and that all the work Ofcom will subsequently do is driven by its risk assessments and its constant reviewing of them, then the categorisation is bound to fall down because the risks will reveal the things that need to happen.

19:00

As we have been through the process in our discussions in Committee, we keep coming across issues where proportionality seems to come around. The proportionality that I worry about is that which says, “If only a small number of people are affected by this, then obviously less needs to be happening at Ofcom level”. We debated this earlier in relation to the amendments on children and seemed to come out in two different positions.

I believe that there should be zero tolerance on whether children should be accessing material which is illegal for them, but the Bill does not say that. It says that all Ofcom’s work has to be done in proportion to the impact, not only in the direct work of trying to mitigate harms or illegality that could occur but taking into account the economic size of the company and the impact that the work would have on its activities. I do not think we can square that off, so I appeal to the Minister, when he comes to respond, to look at it from the other end. Why is it not possible to have a structure which is driven by the risk? If the risk assessment reveals risks that require action, there should not be a constraint simply because the categorisation hurdle has been met. The risk is what matters. Does he agree?

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords for helping us to reach our target for the first time in this Committee, especially to do so in a way which has given us a good debate on which to send us off into the Whitson Recess. I am off to the Isle of Skye, so I will make a special detour to Balmacara in honour of the noble Lord.

[Lord Stevenson of Balmacara (Lab)]

May I have a postcard?

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord does not believe anything that I say at this Dispatch Box, but I will send a postcard.

As noble Lords are by now well aware, all services in scope of the Bill, regardless of their size, will be required to take action against illegal content and all services likely to be accessed by children must put in place protections for children. Companies designated as category 1 providers have significant additional duties. These include the overarching transparency, accountability and freedom of expression duties, as well as duties on content of democratic importance, news publishers’ content, journalistic content and fraudulent advertising. It is right to put such duties only on the largest platforms with features enabling the greatest reach, as they have the most significant influence over public discourse online.

I turn first to Amendment 192 in the name of my noble friend Lady Morgan of Cotes and Amendment 192A from the noble Lord, Lord Griffiths of Burry Port, which are designed to widen category 1 definitions to include services that pose a risk of harm, regardless of their number of users. Following removal of the legal but harmful provisions in another place, the Bill no longer includes the concept of risk of harm in Category 1 designation. As we set out, it would not be right for the Government to define what legal content it considers harmful to adults, and it follows that it would not be appropriate for the Government to categorise providers and to require them to carry out duties based on this definition.

In addition, requiring all companies to comply with the full range of Category 1 duties would pose a disproportionate burden on services which do not exert the same influence over public discourse online. I appreciate the point made by the noble Baroness, Lady Bull, with regard to regulatory burden. There is a practical element to this as well. Services, particularly smaller ones, have finite resources. Imposing additional duties on them would divert them from complying with their illegal and child safety duties, which address the most serious online harms. We do not want to weaken their ability to tackle criminal activity or to protect children.

As we discussed in detail in a previous debate, the Bill tackles suicide and self-harm content in a number of ways. The most robust protections in the Bill are for children, while those for adults strike a balance between adults being protected from illegal content and given more choice over what legal content they see. The noble Lord, Lord Stevenson, asked why we do not start with the highest risk rather than thinking about the largest services, but we do. We start with the most severe harms—illegal activity and harm to children. We are focusing on the topics of greatest risk and then, for other categories, allowing adults to make decisions about the content with which they interact online.

A number of noble Lords referred to suicide websites and fora. We are concerned about the widespread availability of content online which promotes and advertises methods of suicide and self-harm, which can be easily accessed by young or vulnerable people. Under the Bill, where suicide and self-harm websites host user-generated content, they will be in scope of the legislation. These sites will need proactively to prevent users from being exposed to priority illegal content, including content which encourages or assists suicide under the terms of the Suicide Act 1961. Additionally, it is an offence under Section 4(3) of the Misuse of Drugs Act 1971 for a website to offer to sell controlled drugs to consumers in England and Wales. Posting advice on how to obtain such drugs in England and Wales is also likely to be an offence, regardless of where the person providing the advice is located.

The Bill also limits the availability of such content by placing illegal content duties on search services, including harmful content which affects children or where this content is shared on user-to-user services. This will play a key role in reducing traffic that directs people to websites which encourage or assist suicide, and reduce the likelihood of users encountering such content. The noble Baroness, Lady Bull, asked about starvation. Encouraging people to starve themselves or not to take prescribed medication will be covered.

Amendment 194 tabled by the noble Lord, Lord Stevenson of Balmacara, seeks to ensure that Ofcom can designate companies as category 1, 2A or 2B on a provisional basis, when it considers that they are likely to meet the relevant thresholds. This would mean that the relevant duties can be applied to them, pending a full assessment by Ofcom. The Government recognise the concern highlighted by the noble Lord, Lord Allan, about the rapid pace of change in the technology sector and how that can make it challenging to keep the register of the largest and most influential services up to date. I assure noble Lords that the Bill addresses this with a duty which the Government introduced during the Bill’s recommittal in another place. This duty, at Clause 88, requires Ofcom proactively to identify and publish a list of companies which are close to category 1 thresholds. This will reduce any delays in Ofcom adding additional obligations on companies which grow rapidly, or which introduce new high-risk features. It will also ensure that the regime remains agile and adaptable to emerging threats.

Platforms with the largest reach and greatest influence over public discourse will be designated as category 1. The Bill sets out a clear process for determining category 1 providers, based on thresholds relating to these criteria, which will be set by the Secretary of State in secondary legislation. The process has been designed to ensure that it is transparent and evidence-based. We expect the main social media platforms and possibly some others to be designated as category 1 services, but we do not wish to prejudge the process set out above by indicating which specific services are likely to be designated, as I have set out on previous groups.

The amendment would enable Ofcom to place new duties on companies without due process. Under the approach that we take in the Bill, Ofcom can designate companies as belonging to each category based only on an objective assessment of evidence against thresholds approved by Parliament. The Government’s approach also provides greater certainty for companies, as is proposed in this amendment. We have heard concerns in previous debates about when companies will have the certainty of knowing their category designation. These amendments would introduce continuous uncertainty and subjectivity into the designation process and would give Ofcom significant discretion over which companies should be subject to which duties. That would create a very uncertain operating environment for businesses and could reduce the attractiveness of the UK as a place to do business.

I hope that explains why we are not taken by these amendments but, in the spirit of the Whitsun Recess, I will certainly think about them on the train as I head north. I am very happy to discuss them with noble Lords and others between now and our return.

[Lord Stevenson of Balmacara (Lab)]

Before the Minister sits down, he did let slip that he was going on the sleeper, so I do not think that there will be much thinking going on—although I did not sleep a wink the last time I went, so I am sure that he will have plenty of time.

I am sure that the noble Baroness, Lady Morgan, will want to come in—but could he repeat that again? Risk assessment drives us, but the risk assessment for a company that will not be regarded as a category 1 provider because it does not meet categorisation thresholds means that, even though it is higher risk than perhaps even some of the category 1 companies, it will not be subject to the requirements to pick up the particular issues raised by the noble Baroness and the noble Lord, and their concerns for those issues, which are clearly social harms, will not really be considered on a par.

[Lord Parkinson of Whitley Bay (Con)]

In the response I gave, I said that we are making the risk assessment that the riskiest behaviour is illegal content and content which presents a harm to children. That is the assessment and the approach taken in the Bill. In relation to other content which is legal and for adults to choose how they encounter it, there are protections in the Bill to enforce terms of service and empower users to curate their own experience online, but that assessment is made by adult users within the law.

[Baroness Morgan of Cotes (Con)]

I thank all noble Lords who spoke in this short but important debate. As we heard, some issues relating to risk and harm have been returned to and will no doubt be again, and we note the impact of the absence of legal but harmful as a concept. As the noble Baroness, Lady Bull, said, I know that the noble Baroness, Lady Parminter, was very sad that she could not be here this afternoon due to another engagement.

I will not keep the House much longer. I particularly noted the noble Baroness’s point that there should not be, and is not, a direct relationship between the size of the platform and its ability to cause harm. There is a balance to be struck between the regulatory burden placed on platforms versus the health and well-being of those who are using them. As I have said before, I am not sure that we have always got that particular balance right in the Bill.

The noble Lord, Lord Allan, was very constructive: it has to be a good thing if we are now beginning to think about the Bill’s implementation, although we have not quite reached the end and I do not want to prejudge any further stages, in the sense that we are now thinking about how this would work. Of course, he is right to say that some of these platforms have no intention of complying with these rules at all. Ofcom and the Government will have to work out what to do about that.

Ultimately, the Government of the day—whoever it might be—will want the powers to be able to say that a small platform is deeply harmful in terms of its content and reach. When the Bill has been passed, there will be pressure at some point in the future on a platform that is broadcasting or distributing or amplifying content that is deeply harmful. Although I will withdraw the amendment today, my noble friend’s offer of further conversations, and more detail on categorisation and of any review of the platforms as categorised as category 1, 2 and beyond, would be very helpful in due course. I beg leave to withdraw.

Amendment 192 withdrawn.

Amendments 192A and 193 not moved.

Schedule 11 agreed.

Clause 86 agreed.

Amendment 194 not moved.

Clauses 87 and 88 agreed.

Clause 89: OFCOM’s register of risks, and risk profiles, of Part 3 services

Amendments 194A to 197 not moved.

Clause 89 agreed.

Clause 90 agreed.

House resumed.

New Hospitals

Thursday 25th May 2023 Lords Chamber

Statement

19:15

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

My Lords, I will repeat a Statement made today in another place on the new hospital programme. The Statement is as follows:

“As we celebrate 75 years of the NHS this summer, we must continue to set up its success for the 75 years to come. At the heart of this is our new hospital programme, the biggest hospital building programme in a generation, which will help us deliver on our manifesto commitment to build 40 new hospitals by 2030. Today, I can reconfirm to the House our commitment for 40 new hospitals to be built by 2030.

We made our manifesto commitment in 2019, and in 2020 we listed 40 schemes as part of the new hospital programme. Since we formally launched the schemes, we have learned more about the use of reinforced autoclaved aerated concrete, more commonly known as RAAC. RAAC is a lightweight form of concrete that, between the mid-1950s and the mid-1980s, was commonly used in the construction of a number of public buildings, including hospitals—often on roofs and occasionally in walls and floors.

We now know that RAAC has a limited lifespan, with difficult and dangerous consequences for the people who rely on or work in those hospitals. I know that this has caused considerable concern to colleagues in this House, to NHS staff in those hospitals and to constituents who are treated in them.

We remain committed to eradicating RAAC from the wider NHS estate. As part of the spending review allocation up to 2024-25, we allocated the affected trusts £685 million in immediate support, but in some cases we must go further. Seven hospitals in England were constructed, either wholly or in major part, with RAAC, and an independent assessment shows they are not safe to operate beyond 2030. Two of the hospitals are already part of the new hospitals programme, namely the West Suffolk Hospital and the James Paget University Hospital. The five remaining hospitals have submitted expressions of interest to join the programme but are not yet part of it. Those are Airedale General Hospital in Keighley, Queen Elizabeth Hospital in King’s Lynn, Hinchingbrooke Hospital near Huntingdon, Mid Cheshire’s Leighton Hospital, and Frimley Park Hospital in Surrey.

We accept in full the independent assessment that these hospitals are not safe to operate beyond 2030. Today, I can confirm to the House that we will expand our new hospitals programme to include those five hospitals built with significant amounts of RAAC. Taken together with the two hospitals already in the programme, the seven RAAC hospitals will be rebuilt completely using a standardised design known as hospital 2.0, with the aim of completing all seven by 2030. I can confirm to the House today that these new hospitals will be fully funded.

I want to take a moment to thank all those who have campaigned so tirelessly for new hospitals to be built to replace the existing RAAC hospitals, including the Members for Keighley and for Shipley, who have championed Airedale vociferously; the right honourable Member for Surrey Heath, who campaigned so strongly for Frimley; the honourable Member for Huntingdon, who lobbied hard for Hinchingbrooke; the honourable and learned Member for Eddisbury and the honourable Member for Crewe and Nantwich, who led the campaign on Leighton Hospital; and the honourable Member for North West Norfolk, the honourable Member for North Norfolk, who is my PPS, and the right honourable Member for South West Norfolk, who all campaigned so assiduously for the hospital in King’s Lynn.

Taken together, the new hospitals programme represents a huge commitment to strengthening the NHS. Since 2020, we have committed to invest £3.7 billion by the financial year 2024-25, and we expect the total investment to now be more than £20 billion for the programme as a whole. Resolving the uncertainty over the RAAC hospitals, which today’s announcement achieves, in turn allows much-needed clarity for the rest of the new hospitals programme. The programme has already been divided into cohorts 1 to 4, with construction in cohort 1 already started. Cohort 1 contains eight schemes. Two hospitals are already open to patients, with the new Louisa Martindale Building at the Royal Sussex County Hospital in Brighton due to open later this year. Work at Moorfields Eye Hospital is due to start imminently, having cleared its final business case.

Cohort 2 comprises 10 schemes. The following schemes will now be ready to proceed, in line with plans set out by the respective trusts: the National Rehabilitation Centre; Derriford emergency care hospital in Plymouth; Cambridge Cancer Research Hospital; Dorset County Hospital in Dorchester; and St Ann’s Hospital, Christchurch Hospital, the Royal Bournemouth Hospital and Poole Hospital, all of which are in Dorset. A further two schemes within cohort 2, Shotley Bridge Community Hospital and the women and children’s hospital in Cornwall, will also be approved to proceed, but in line with the standardised design elements we are promoting through hospital 2.0, on which I will set out further details in a moment. As such, with the uncertainty that surrounded the RAAC hospitals now addressed, all the cohort 2 schemes can proceed, and they will be fully funded.

The cohort 3 schemes include major hospital new builds at Sutton, Whipps Cross, Hillingdon, Watford, Harlow, Leeds and Leicester. Today’s announcement confirms that those schemes will now proceed and be fully funded. They will be constructed using the hospital 2.0 standardised approach. It is worth reminding the House of the merits of using that methodology. First, although longer will be taken on the initial design, rather than each scheme beginning to construct to its own bespoke design, the current approach has meant that the average time from design to completion of a major hospital has been around 11 and a half years. By embracing modern methods of construction, we will massively speed up the construction phase and, in addition, accelerate Treasury and other government assurance processes. There has been much debate to date on when hospitals start, but the more important issue is when schemes are completed. A standardised modular scheme has been shown to work in other sectors—for example, when building schools and prisons—and is widespread across the private sector.

Today’s announcement confirms that all cohort 3 schemes can now proceed. In turn, enabling works that had been held up due to the uncertainty about the RAAC hospitals can now progress. I pay tribute to the right honourable and honourable Members who have campaigned so strongly for the cohort 3 hospitals to proceed. They include the right honourable Member for Uxbridge and South Ruislip, the right honourable Member for Chingford and Woodford Green, the right honourable Member for Harlow, the right honourable Member for Epping Forest and the honourable Member for Hertford and Stortford. I know that not all of them can raise points during this Statement, but the latter three have championed Harlow and its case. The Member for Carshalton and Wallington, to name just one, has raised these issues.

Turning to the hospitals in cohort 4, two of the schemes—West Suffolk Hospital and James Paget University Hospital—are RAAC hospitals. As I touched on a moment ago, they have been confirmed as part of the seven RAAC hospitals. They will therefore be funded for completion by 2030. Four hospitals in cohort 4 remain on track for completion by 2030: Milton Keynes University Hospital, Kettering General Hospital, Musgrove Park Hospital in Taunton and Torbay Hospital. Again, I pay tribute to the Members for those constituencies, including the Members for Milton Keynes South, Milton Keynes North, Kettering, Taunton Deane and Torbay.

The remaining seven hospitals within that cohort will also proceed as part of the new hospitals programme. The work will start on those schemes over the next two years, but they will be part of a rolling programme where not all work will be completed by 2030. That is a reflection of the disruption that two years of the Covid pandemic caused, as well as the pressure from construction inflation.

Some work within cohort 4 will start next year. That includes a new surgical hub at Eastbourne, alongside the discharge lounge already under construction. We will discuss key worker accommodation on the site with the trust, as part of engagement with the local housing association. At Charing Cross Hospital in Hammersmith, work will begin on temporary ward capacity to enable the floor-by-floor refurbishment to proceed. In Nottingham, work will begin on a new surgical hub and three new operating theatres will begin as part of the wider redesign, taking forward the Ockenden report recommendations. In Lancashire, a new surgical hub will be opened at the Royal Preston Hospital, which is due to be completed this year. We will reconfigure services across two trusts. I am sure that one of those sites will be of interest to Mr Speaker, as it is expected to be near Chorley. We are in active discussion with the Royal Berkshire Hospital, given the problems with the existing site, which had already made a 2030 completion date very stretching. In addition, we are building three new mental health hospitals in Surrey and Borders, Derbyshire, and Merseyside.

Turning to Devon, I pay tribute to my honourable friend the Member for North Devon and my right honourable and learned friend the Member for Torridge and West Devon, who have secured new community diagnostics centres at North Devon. The new discharge hub is near completion, and we will take forward discussions with the trust and the local housing association on key worker accommodation over the next two years, as the first part of the North Devon new hospital build. We will discuss the original refurbishment proposal alongside the new build hospital 2.0 option.

In summary, the cohort schemes will all proceed, but the commitment to completion by 2030 applies to the 40 schemes set out today, which meets our manifesto commitment to build 40 hospitals by 2030.

Finally, let me set out the merits of the hospital 2.0 approach. Building new hospitals this way has clear advantages. Construction experts estimate that, with modular design, the efficiency saving will be in the region of 25% per square foot. That is essential in addressing the pressures of construction inflation and unlocking the additional schemes that are being observed as a result of the RAAC announcement.

There is one key risk to today’s announcement: the plan announced by the party opposite. As we speed things up, it is determined to grind them to a halt. The plan it set out on Monday said,

‘as a first step, before we commit to any more money, we’d make an assessment of all NHS capital projects to make sure money is getting allocated efficiently’.

So the risk to these schemes is from those on the Benches opposite.

Today’s announcement confirms over £20 billion of investment for the NHS estate. It confirms that all seven RAAC hospitals, which NHS leaders have called on the Government to prioritise, will be prioritised, with complete rebuilds using modern methods of construction. It will allow all cohort 2 schemes to proceed once business cases have been agreed, and modular build will be used for two of the schemes. It gives trusts the certainty to begin enabling works on major schemes in cohort 3 and a package of early work for schemes in cohort 4, two of which will be accelerated as part of the RAAC programme.

In 2019 we committed to the biggest hospital building programme in a generation, and today we confirm the funding to build 40 hospitals by 2030. I commend this Statement to the House.”

19:27

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for reading out the Statement. It has been clear for the last year that we would have to come to this moment of the Government finally admitting that achieving their 2019 manifesto pledge for 40 new hospitals by 2030, under the new hospitals programme, was never on the cards, and that reality would have to take over. The Government must face the reality of the timescales and the scale of the money needed to address the NHS’s crumbling estate, and the reality of needing to prioritise and address the urgent rebuild and major maintenance problems of existing hospitals throughout the country, which are seriously endangering patient safety and the public.

This morning, it was reported that the announcement of the Government’s realisation of not being able to keep their promise was delayed

“because of fears about a backlash from Tory MPs”.

Was that vital information kept from the public because of such fears? Can the Minister tell the House when the target was abandoned internally?

We know that NHS maintenance costs have more than doubled, from £4.7 billion in 2011-12 to £10.2 billion in 2021-22, and about the dire condition that many hospital buildings are in. For example, Leeds Teaching Hospitals saw over 100 raw sewage leaks last year, including faeces leaking into wards and patient rooms; Hampshire Hospitals NHS Foundation Trust was forced to suspend some services because of a rat infestation; and the hospital in King’s Lynn, Norfolk, is one of the most prominent hospitals that has had to be propped up with steel and timber supports to stop its dilapidated roof caving in.

Do the Government have an estimate of how much they expect NHS maintenance costs to continue to rise until 2030? Is there a full overall strategic plan for this and the now-reprioritised 40 new hospitals programme? If so, when will it be published? After government announcements on the programme, only in February described by the Minister opposite as “world-class” and capable of being exported “around the world”, we have become familiar with the idea that the hospitals were not new, that many were not even hospitals and that “new” could include repairs and redecoration.

The Nuffield Trust put the number of new hospitals in the Government’s original programme—meaning those that we would all recognise as new—as three, not 40. The National Audit Office called the programme unachievable, and NHS Providers estimated the real costs of building new hospitals as £20 billion, not the £3.7 billion allocated by the Government. Can the Minister commit to publishing the latest estimate that his department has made of the cost of the now-revised programme? Can he now say specifically which of the new hospitals in today’s Statement are being kicked into the long grass beyond 2030?

The slow progress being made was clearly evident last February when it emerged that only 10 of the projects even had planning permission. Just last week the BBC reported that building work is yet to start for 33 of the 40 projects promised. Will the Minister commit to coming back to the House with detailed implementation, timescales, costs and scope of what is now proposed? The fact is that the programme has been hit with delays and uncertainty for years, and the longer this goes on, the higher the costs soar and the less likely it becomes that they will ever be built. Most of the hospitals in the programme are still waiting to hear what their final budget will be, and none of the six that were supposed to be ready for 2025 has full planning permission or funding yet.

On the seven hospitals built with reinforced autoclaved aerated concrete—RAAC—the Government acknowledged in December the enormous concerns and safety implications and committed to eradicating this from the NHS estate. The Government have now officially recognised what we all knew—that these hospitals are not safe to operate beyond 2030. We welcome the news that they will all be completely rebuilt and the promise that this will be fully funded. Can the Minister tell the House the specific funding that is to be committed to the seven hospitals? Can he also tell the House when we are to receive the full details of the new, reprioritised plan so that it can be properly scrutinised and assessed by this House?

[Lord Allan of Hallam (LD)]

My Lords, when I worked in business we had a maxim that we should always try to undercommit and overdeliver as a way of pleasing clients. It feels like the opposite is applying here, with the Government scrambling to show that they are not underdelivering on their overcommitment. Of course, 40 hospitals was a classic election promise, oversimplifying a much more complex need, with the reinforced autoclaved aerated concrete hospitals being one of those such complications that emerged once they had turned over the aerated concrete block.

I do not expect the Minister to comment on the election promise, but I hope he can comment further on three aspects of the Government’s programme that he has set out. The first is the modular hospital design approach, which certainly seems a very smart way to proceed if it can provide more and better-quality hospital capacity at lower cost. Of course, any negative impact of failures in design will be multiplied if you are using a similar, consistent design. We should remember that RAAC was the future once, and public buildings were built according to that specification because it was seen to be cheaper and better back in the 1950s and 1960s. What assurances can Ministers give us that they will get it right this time and that the modular approach being used everywhere is the right one? By the way, on branding, 2.0 is now very 1.0, and it might be more appropriate to call it “the metahospital” or “Hospital.AI” these days.

The second is the planning process, which the noble Baroness, Lady Wheeler, raised. It does not matter if the modular design allows much quicker construction if everything is held up in seeking the relevant permissions to build the hospital in the first place. I would be interested to hear how many of the schemes have been given planning permission already and the extent to which the Government see planning as potentially a disruptor to their plans.

Finally, on the risks, if there are delays or cost overruns, which we hope there will not be—but inevitably one sees those with schemes of this kind—I look for assurances from the Minister that the contracts are written in such a way that any additional bills will not fall back on the taxpayer and, crucially, that if some schemes overrun or get into difficulties and incur extra costs, it will not mean that other schemes in the programme have to be cancelled as the overall budget runs short.

[Lord Markham (Con)]

I thank noble Lords for their comments. On a personal front, this is a project I have been working on directly. It is very close to my heart and is something that I am delighted to be able to put forward. I would like to mention a couple of hospitals that probably did not get quite the prominence they deserved in the earlier Statement, which happen to be quite close to my heart as well: the North Manchester General Hospital, which is one of the Cohort 3 hospitals. I have worked closely with Manchester City Council in the past on the redevelopments around Manchester Mayfield, and that is very much part of the plans. Also, being an ex-deputy leader of Westminster Council, I am excited by the plans around St Mary’s, where we are looking at a couple of alternative sites. That will be in conjunction with the plans for the refurbishments of Charing Cross and Hammersmith so we have got three hospitals in one. Just to clarify an earlier statement: the surgical hub is planned for Chorley and South Ribble Hospital rather than the Royal Preston Hospital.

I am not quite sure on the point from the noble Baroness, Lady Wheeler, about the target being abandoned. What we were saying before was not that at all. We were saying we are positive about how it is progressing. To the point from the noble Lord, Lord Allan, about overpromising and underdelivering, I am sorry for the branding of the hospital 2.0 approach, and I take the blame for that. In terms of MMC, I was at one of the plants the other day, and it really is amazing the way its builds them and the speed with which they will go up. Many buildings have built like that for a long time. When I was up there, I saw them constructing the new Everton stadium, which is just one example. I believe that they will give the necessary speed we need for them all.

In terms of the funding, the estimate, as mentioned, is more than £20 billion. Each hospital has an indicative allocation. They are fully funded. We are not publishing them for obvious reasons: when you go out to tender, you do not want to tell the marketplace what you are expecting to pay. I hope noble Lords understand the reason for that. I am confident that the funding is in place. The hope in all of these things, as we have seen in the prison space and the schools space, is that if the first hospital costs £100 to build, the next one costs £95, the next one £90, the next one £85 as you get the economies of scale. So, you should be seeing 20% to 25% reductions, as you do a large production line. The benefit of all this is that there is such a mass volume of them all that you get the economies of scale. I genuinely hope that this will become the way we build hospitals for generations to come. It is very much cross-party, something that we all believe is a good way forward.

Some hospitals, as mentioned—as part of the timing and to try to make sure it all works in terms of the funding envelope—have been pushed into the 2030-35 bracket. They were mentioned in the Statement, and we have been speaking to them about that. They include Eastbourne, the Royal Berkshire, all the ones around St Mary’s with the complications there, Lancashire and Charing Cross to name just a few. In all those cases, they understand the reasons, and I think most people understand the need to prioritise the RAAC hospitals as a matter of absolute urgency.

On the questions about the planning process, we are on target. Obviously, you do not want to get planning permission too early, given the time it takes. In all the programmes I have seen, we do not yet have planning permission because we do not yet need it. I am confident that we are on track. We know that there are always X factors in these types of projects but, when you have so many, you want the flexibility to move some forward and some back, in a portfolio-type approach. That is well known when you are running as many projects as this.

At this stage, in all honesty I can say that we are as confident as we can be that we are on target to build them. Undoubtedly, there will be bumps in the road, and we are grown up enough to know that there are challenges, but I can say with a high degree of confidence that this really is the best approach. We will have world-class hospitals that will be state of the art, not only in their design but in their use of digital technology. A hospital today that is fully digitised costs 10% less per patient. With these hospitals, we should be looking at savings of 20% or more. That will really make a material difference to how we treat patients, increase productivity and be seen as the real way forward. I am very hopeful that the economics will become so compelling that this programme will not stop at 40 hospitals—in fact, 45, because of the extra ones we have brought in—and will become a rolling programme across the whole estate.

I am sure that we will have many more questions on this. As I say, it is my pet subject, as the priority lead, so I would be happy to talk about it in greater detail at a suitable juncture.

[Baroness Wheeler (Lab)]

Can the Minister say something about NHS maintenance costs, which I did ask about? I do not have the actual question in front of me, as my speech has just been taken away, but if he would like to write to me on that, it would be helpful.

[Lord Markham (Con)]

Yes, I will happily write. We are spending a record amount in capital. The current capital budget is about £12 billion, which is a 50% increase on 2019. Speaking of underpromising and overdelivering, believe it or not, we have been hiding our light under a bushel regarding the hospital upgrades. Just this morning I visited Frimley, one of the RAAC hospitals, and they said, “Oh, we’ve just had a new hospital at Ascot”. We have not called that a new hospital but they refer to it as such, and when you see it, it is a new building. It is not massive, but by most definitions it is a hospital.

I will happily provide that extra detail and information. We know that there is a lot to be done on maintenance, but we are putting more resources into it.

Retained EU Law (Revocation and Reform) Bill

Thursday 25th May 2023 Lords Chamber

Returned from the Commons

The Bill was returned from the Commons with reasons and amendments.

House adjourned at 7.43 pm.